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09 June 2021
The Koblenz Higher Regional Court recently decided on a case of wrongful delivery and the assignment of liability therein.(1)
The plaintiff's policyholder commissioned the defendant to undertake a cross-border delivery of shoes to the United Kingdom. The defendant used subcarriers to transport the cargo.
A driver of the subcarrier did not find the recipient at the given delivery address and, following the instructions of a man unknown to the driver, unloaded the goods at one of several entrance gates to the warehouse located at the address without ascertaining the man's identity or legitimacy to receive the shipment.
The plaintiff paid the policyholder compensation of €35,816.30 for the loss of cargo claimed by the policyholder and asserted a claim against the defendant based on assigned rights.
The parties disputed whether the consignment had been delivered to the agreed receiving address and whether the liability could be limited or excluded.
The Koblenz Regional Court granted the claim in full. The defendant appealed.
The Koblenz Higher Regional Court dismissed the defendant's appeal because the appeal "obviously had no prospect of success". It found that the regional court had rightly allowed the action in its entirety and that the defendant was liable without limitation for the loss of the goods in dispute.
The cross-border transport by the defendant fell within the scope of the Convention on the Contract for the International Carriage of Goods by Road (CMR). Pursuant to Article 17(1) of the CMR, carriers are in principle liable for, among other things, the loss of the goods, insofar as the loss occurs between the time of taking over the goods and the time of delivery. They are also liable for the conduct of their vicarious agents.
The plaintiff, as the person entitled to compensation, bore the burden of proof for the loss. Delivery to a non-entitled party constitutes loss of the goods if the goods cannot be recovered immediately. As a rule, the person entitled to receive delivery is the consignee of the goods as specified in the consignment note. Delivery to a different person is sufficient only if it is authorised or empowered by the consignee with the right of disposal. In this case, even according to the defendant's submissions, the goods had not been delivered directly to the consignee specified in the consignment note. Accordingly, it had been up to the defendant as the carrier to demonstrate and prove that the goods were properly delivered. However, the defendant had failed to do this.
As the defendant had not provided proof of proper delivery, it was assumed that there had been a total loss (see also Article 20(1) of the CMR on the presumption of loss), for which the defendant was liable in accordance with Section 23(1) of the CMR.
The court further confirmed that the carrier was liable for the full value of the goods when they were accepted for carriage. The defendant could not rely on an exclusion or limitation of liability pursuant to Articles 29(1) and 29(2) of the CMR, the threshold for which is "recklessness with an awareness that damage would probably occur".
The court confirmed that the driver of the subcarrier had grossly violated the due diligence incumbent upon him to determine the person authorised to receive the goods when he did not find the named recipient at the given delivery address and, following the instructions of a man unknown to him, unloaded the goods at one of several entrances to the warehouse located there without ascertaining the man's identity or legitimacy to receive the shipment.
The court's decision regarding the definition of loss seems logical; the CMR brings with it the presumption that the consignee named in a consignment note is entitled to receive the goods and that if that person does not receive the goods, they are "lost".
As to the exclusion or limitation of liability, the court's reasoning is quite severe but rather convincing in this particular case.
For further information on this topic please contact Olaf Hartenstein or Wassilis Thomas at Arnecke Sibeth Dabelstein by telephone (+49 40 31 779 70) or email (firstname.lastname@example.org or email@example.com). The Arnecke Sibeth Dabelstein website can be accessed at www.asd-law.com.
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