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12 March 2008
In a case decided by the Federal Court of Justice on January 10 2008 the plaintiff sued a truck driver for damage to cargo. The forwarding company for which the defendant worked was assigned with the return transportation of a machine owned by the plaintiff. During the delivery and unloading process the machine was damaged. After having prepared the unloading of the cargo by loosening the security cords, opening the loading hatch and pushing the machine to the edge of the loading hatch, the defendant started the engine of the truck again and drove a few metres further, whereupon the machine fell to the ground.
In the first instance the plaintiff made a claim against the forwarding company, which was legally binding. It was dismissed on the grounds that the damage occurred after the delivery of the cargo. The plaintiff requested that the defendant pay damages but the defendant refused to comply, pleading that the claim was time barred.
A county court sentenced the defendant to pay the claimed damages. This decision was confirmed by the court of appeals, which argued that the defendant had damaged the machine negligently and was therefore liable in tort, in accordance with the provisions of the Civil Code. The appellate court held that the damage had occurred after the carrier's period of custody of the machine, such that the short time limit of the special regulations on limitation of time in the Commercial Code (Paragraph 439) did not apply. The court stated that the unloading itself was, despite a contrary agreement, no longer part of the transportation process and was therefore not part of the contract of carriage.
However, the Federal Court of Justice repealed the judgment and dismissed the claim. It held that Paragraph 439 of the Commercial Code provides the special rules for limitation of time in transport cases and must be applied to all claims arising from transportation. Whether the delivery of the cargo has been effective is not the decisive factor. Insofar as there is a valid contract of carriage and a direct connection between the claim for damage and the transport, the special provisions in the Commercial Code must be applied. The spatio-temporal connection that the Federal Court requests between the transportation and the unloading process was sufficient in this context. Thus, the claim, having been based on tort, was qualified as time barred in accordance with the provisions of the Commercial Code.
On the one hand the Federal Court of Justice underlines the need for synchronization of the time bars within the claims arising from and directly connected with transportation. In that respect, this ruling is in alignment with previous decisions. The argument is based on the issue that this manner of interpretation would help to achieve the purpose of law, in the light of the claimant’s interest in the enforcement of its claim and the general need for legal certainty, as well as the parallel interest of the defendant in bringing the case to an expeditious close. However, from the claimant’s perspective, the applicability of Paragraph 439 of the Commercial Code means a foreshortening of time and thus a diminishment of its rights.
On the other hand, the decision clarifies again the coverage of Paragraph 439 of the Commercial Code - that is, to all claims directly connected with transportation as defined in the provisions on contract of carriage, including not only contractual claims, but also claims in tort.
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