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10 July 2019
On 19 January 2019 the Verden Regional Court ruled on the liability of a carrier for loss of goods and delayed delivery (Case 9 O 20/19).
A seller of electronic devices (the plaintiff) sent a freight enquiry containing a freight offer to a carrier (the defendant). The offer requested the defendant to accept, palletise, distribute and promptly take over certain goods. The defendant's emails contained an addendum which stated that it operated exclusively under the Freight Forwarders' Standard Terms and Conditions (ADSp).
The defendant picked and prepared the goods for delivery but commissioned subcontractors to receive and redistribute them according to packing lists. Following delivery, several recipient warehouses indicated goods shortages. In one case, the goods were delivered late and the recipient rejected a later delivery.
The Verden Regional Court determined that the parties had concluded a contract of carriage. Where a defendant argues that a freight forwarding contract has been concluded, it bears the burden of proving this. References to the ADSp are insufficient proof.
The court further held that in this case, the plaintiff had not had to substantiate or prove that the goods had been fully taken over by the defendant because the defendant had agreed to collect the goods in packages according to a packing list. In any event, the defendant had infringed one of its primary obligations.
If the containers' quantities had been incorrect upon being taken over by the defendant, this would have been noticed during the order picking and communicated to the goods' recipients. Alternatively, if the containers' quantities had been correct, either the picking was incorrect, the goods were lost during transport or the recipients had falsely complained of shortfalls. Therefore, the defendant would have to present the freight documents; however, in all other cases, the goods would have been considered lost in the defendant's custody.
Regarding the compensation for damages caused by delayed delivery, the court deemed the request unjustified because the claim period had expired. Pursuant to Section 438(3) of the Commercial Code, claims for damages caused by delays must be reported within three weeks of delivery.
The distinction between freight and forwarding contracts is a common subject of legal disputes in Germany, as freight forwarders are generally liable only for organisational or selection faults and can usually relieve themselves of liability if they can prove that they chose a conscientious carrier. However, forwarders are liable for damages and loss of goods under their own or their subcontractors care, which is why proof of discharge is usually more difficult for forwarders.
Normally, claimants must state and prove that damage occurred at the time when the freight forwarder was in custody of the goods. Receipts are the usual way to prove that goods were properly passed on to the carrier; however, in this case, the claimant had been exempt from stating whether and which goods were passed on. The forwarder had assumed an additional contractual obligation which extended its scope of responsibility to cover the shipment's preparation.
For further information on this topic please contact Marco G Remiorz or Katharina Schmidtke at Arnecke Sibeth Dabelstein by phone (+49 40 31 77 97 0) 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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