A claimant commissioned a respondent with a transport from Bremen to France. The claimant's written instructions to the respondent stated as follows:
Please make sure you have sufficient insurance coverage. Goods may neither be unloaded nor reloaded. Keep the truck only in guarded parking areas, the safety of which complies with the requirements of your insurance.
The driver took delivery of the goods, parked the truck at an unguarded rest area near the Dutch border after a 300km drive and spent the night in the driver's cabin. The next morning, the driver discovered that the tarpaulin had been cut open and part of the goods had been stolen.
On the basis of wilful misconduct, the claimant claimed full compensation for all of the resulting damage, as contrary to its written instructions, the truck was parked on an unguarded, unlit road at night.
The regional court decided that there had been no wilful misconduct. As a result, the respondent's liability was limited to 8.33 special drawing rights per kilo.
By his appeal to a higher regional court, the claimant challenged that judgment.
The higher regional court revoked the first-instance judgment and ordered the respondent to pay the full amount. According to the court, the carrier had acted with wilful misconduct by disregarding the claimant's shipping order which contained a clear instruction to refrain from parking the truck in unguarded parking spaces. Only under exceptional circumstances would the carrier have been allowed to disregard such instructions; however, such exceptional circumstances were not given in this case.
Senders are well advised to give clear instructions to carriers by agreements in their contracts of carriage. If such clear instructions are not followed and damage arises, the carrier faces the reproach of wilful misconduct.
