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14 September 2005
In a recent case the Düsseldorf Court of Appeal ruled that the plaintiff had been instructed to organize the distribution of various consignments on behalf of a company named K on a fixed-cost basis.
The defendant took delivery of two consignments from K, which had been shipped to the defendant by the plaintiff. No consignment notes were issued. K became insolvent and did not pay freight for the delivery to the plaintiff, which claimed freight from the defendant based on Section 421(2) of the Commercial Code. The plaintiff alleged that the requirements of this provision were fulfilled as the defendant accepted the consignments. The defendant argued that the physical acceptance of the consignment did not constitute a demand for a delivery under Section 421. The regional court dismissed the claim. Section 421(2) requires that the consignee explicitly demands handover of the cargo with reference to its right provided by Section 421. The plaintiff appealed to the Düsseldorf Court of Appeal.
The Düsseldorf Court of Appeal upheld the regional court's decision. Section 421(1)1 of the Commercial Code states that, on arrival of the goods at the point of delivery, the consignee is entitled to request that the carrier deliver the goods against performance of the obligations arising out of the freight agreement. A consignee which asserts its rights pursuant to Section 421(1)1 must still pay the freight charges due, up to the amount which results from the waybill. Therefore, the consignee has no right to request delivery upon arrival of the goods at the point of delivery but must, upon confirmation, fulfil the freight charges on the consignment.
The simple acceptance of the consignment cannot be interpreted as an assertion of the consignee's right to request delivery. The consignee must give a declaration of intention in this respect.
The decision does not reflect the potential for the consignee to assert the claims arising out of the freight agreement in its own name against the carrier if the goods have been damaged, delivered late or lost. Why should the consignee be in a position to claim for damages without having to pay the carrier for freight charges on the consignment? Taking into account that the right of disposition for the consignment changes from the sender to the consignee upon the arrival of the goods at the point of delivery, the decision of the Düsseldorf Court of Appeal makes the carrier's position untenable, as it has to follow the consignee's instructions, faces claims for damage and loss, but has no right to claim freight charges without the consignee's explicit declaration of its intention to request delivery from carrier. The Düsseldorf Court of Appeal's decision is not final, as the plaintiff has appealed to the Federal Court of Justice.
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