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24 February 2021
The plaintiff in a recent case was the transport insurer of a consignor which had commissioned the defendant to transport a consignment of components for catalytic converters at fixed costs within Germany. The defendant had undertaken to comply with the specifications of the consignor's requirement profile for road transport, Clause 5.3 of which stated that "[i]f loaded vehicles are parked, they must be monitored or parked where sufficient safety is ensured. Vehicles loaded with dangerous goods may not be parked in purely residential areas".
The defendant subcontracted the carriage.
The subcontractor's semi-trailer was loaded and later parked in an industrial park at approximately 8:00pm, after which the driver went home in order to comply with the prescribed driving times. When the driver returned to the industrial park the next morning at approximately 5:30am, the trailer had disappeared.
The plaintiff alleged that the cargo was coated with precious metals and claimed damages of more than €1 million.
At first instance, the regional court held that the claim was to be admitted in principle, leaving the determination of the claim amount to further proceedings.
The higher regional court, as the court of appeal, confirmed the regional court's decision and clarified that the claim was neither limited in amount nor reduced due to contributory negligence.
The defendant's appeal of the higher regional court's assessment was successful; the Federal Supreme Court sent the matter back to the court of appeal (23 July 2020, File I ZR 119/19).
According to the Federal Supreme Court, the court of appeal had rightly decided that the plaintiff was, in principle, entitled to the payment of damages by the defendant.
However, the court of appeal had not sufficiently examined whether the claim was subject to the 8.33 special drawing rights limitation (ie, whether there had been intent or recklessness on the part of the driver).
The court of appeal had erroneously held that the limitation did not apply because Clause 5.3 of the requirement profile for road transport had deliberately been violated. However, the Federal Supreme Court clarified that this clause (a general business term of the consignor and thus a clause to be construed to the carrier's benefit) was to be understood as not going beyond what was already required of a carrier by law. Therefore, there had been no deliberate violation of contractual requirements.
This judgment has strengthened the position of carriers.
The clause in the consignor's general terms and conditions, according to which loaded vehicles had to be monitored while parked or parked where sufficient safety was guaranteed, was not sufficiently clear as to impose on the carrier any duties of care beyond the legal requirements. Based on this decision, consignors should ensure that the wording of their general terms and conditions is clear, as any ambiguity will be at their expense.
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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