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28 January 2009
The carrier is generally liable for damage to a consignment which occurs within its custody, after takeover and before delivery. If the damage occurs while the consignment is still on the load floor of the lorry during unloading by the driver, the carrier’s liability depends on whether the damage occurred before or after delivery.
In a June 19 2008 judgment(1) the Higher Regional Court of Hamm denied the carrier’s liability. The court held that the damage had occurred after delivery, although the consignment had been damaged on the lorry’s load floor before the driver had completed the unloading.
The court referred to the general definition of 'delivery' in law as the possibility for the consignee to exercise unlimited actual physical authority over the consignment on the one hand, and the consignee’s consent to assume actual physical authority over the consignment on the other. The court clarified that these prerequisites may be fulfilled even before the actual unloading of the consignment from the lorry.
The background to the decision is Section 412(1) of the Commercial Code, which stipulates that “unless the circumstances or usages indicate otherwise, the sender shall put on board, stow and secure (load) the consignment so as to provide for their safe transport as well as unload them”.
The sender generally has the duty to unload the consignment. The court argued that the driver’s involvement in the unloading operations must be considered a courtesy only. The court stressed that the carrier’s liability is not affected by the driver’s unloading activities. The crucial question is whether the delivery has been completed before the actual unloading commences.
The court ruled that the consignee obtains actual physical authority over the consignment once the lorry has parked on the consignee’s unloading site and the driver has made the load floor accessible to the consignee by opening the tailboard. The movement of the consignment on the lorry by the driver is part of the unloading, which is not within the scope of the carrier’s duties and liabilities.
Furthermore, the court held that the consignee’s consent to assume actual physical authority occurs when the consignee asks the driver to move the consignment to the rear of the lorry. The court argued that the consignee’s consent does not occur after completion of unloading, as any unloading by the driver is a courtesy only and the consignee may not make its consent dependent on a mere courtesy.
The crucial point regarding the carrier’s liability during unloading by the driver is whether the delivery has been completed before the damage occurs. This court ruling may help the carrier to escape liability. However, the issue is still problematic if delivery has been completed, but the consignment is still located on the lorry - particularly if the consignee has already obtained the possibility to exercise actual physical authority over the consignment. Where the consignee is unable to unload the consignment without the driver's assistance, there are good arguments to deny the consignee’s possibility to exercise unlimited actual physical authority. Where unloading devices of the consignee such as a hand-operated forklift are used, it is still doubtful whether the consignee has unlimited access to the consignment on the carrier’s lorry in case of unloading by the driver.
Furthermore, it is decisive if the consignee’s consent to assume actual physical authority has already been established. The court's finding that such consent may not be dependent on a courtesy of the driver is unconvincing. The driver’s unloading activities are part of the sender's duties, whereas the carrier’s duty to deliver must be evaluated from the consignee's perspective. Especially where the consignee has no means to unload the consignment, the carrier ought to be liable for damage which occurs before the driver has unloaded the consignment from the lorry. The carrier should also be liable where the consignee provides unloading devices, until the driver has offered the consignment to the consignee outside the lorry. Until then, the driver must take care of the consignment and the carrier must remain liable until the consignee actually obtains the possibility to exercise unlimited actual physical authority. Another reason for the carrier’s liability is that other consignments destined for other consignees may be damaged during unloading. The carrier would be liable for such damages. It would cause confusion if the carrier were not liable for damages to the consignment being unloaded; it is clearer to make the carrier liable for all damages that occur on the lorry’s load floor, unless the unloading is performed by the consignee.
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