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22 November 2006
Compared to other jurisdictions, in Germany it appears to be relatively easy to break the limits of liability set out by Article 29 of the Contract for the International Carriage of Goods by Road. This can be done through the established principle of gross negligence and the procedural burden of disclosure on the carrier in this context. The Federal Court has previously introduced a secondary burden of proof on the carrier to provide details on all stages of the handling of the cargo, provided (i) there is a plausible indication (ie, a primary burden of proof) allowing the inference that transport was poorly managed, or (ii) it is unknown where the losses occurred.
Thus, the claimants in cases dealing with the loss of cargo always argue that the loss was incurred due to poor management of the transport by the carrier. This shifts the burden onto the carrier to:
If the carrier fails to do so, it is assumed that the carrier acted with gross negligence. Therefore, it is difficult to defend against a claim for damages for loss of cargo as there is always a plausible indication of negligence in the management of the transport.
Recent jurisprudence of the Federal Court has shown a new tendency to limit the extent of liability by accepting a carrier's defence claim of the shipper's contributory negligence.
The rulings issued so far have been based on the shipper's failure to notify the carrier of the actual value of a consignment, with the effect that the carrier had no reason to take special precautions to avoid damage to the cargo. The Federal Court has observed that it is possible to establish the contributory negligence of the shipper of a parcel due to its failure to declare the value of the cargo if the shipper should have known that the carrier would have treated the consignment with special care had it known of its value. In general, it must be expected that a consignment will receive special treatment where the true value of the cargo is known if the carrier's terms and conditions show that, in such cases, it accepts an increased level of liability (Decision I ZR 4/04, December 1 2005). Such statements can be found in the business conditions laid down by parcel service providers.
The Federal Court has explicitly stated out that the decisions also apply to cases under the Contract for the International Carriage of Goods by Road (Decision I ZR 238/02, May 19 2005).
To date, the contributory negligence decisions have concerned only claims against parcel service providers. It remains to be seen whether the principles set out in these judgments will be applicable to ordinary consignments, consolidated consignments or full truckloads. If the Federal Court decides that the principles are applicable in such cases, it will have a significant impact on the carrier's liability, which will be unlimited in light of Article 29, but subject only to the shipper's contributory negligence.
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