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03 July 2013
On July 19 2012 the Federal Court of Justice ruled on the requirements for obligatory investigation and documentation measures applicable to the forfeiting of a freight forwarder's right to limit its liability in case of loss of goods during transportation (I ZR 104/11).
The claimant, which operated a German pharmacy, had ordered drugs from two pharmaceutical companies resident in Germany. They had entered into a contract with the defendant in order to transport the drugs to the claimant's premises. The defendant instructed the driver to deliver the shipment. On March 30 2007 the driver handed over several packages from the shipment. The shipment was signed for by the claimant's employee. On April 5 2007 the claimant notified the driver of the loss of two packages with weights of 3.05 kilograms (kg) and 7.10 kg respectively. A third package was delivered to a false address.
The claimant claimed damages totalling €42,408, plus further legal costs of €653. It submitted that this was the defendant's qualified fault in accordance with Section 435 of the Commercial Code, as the defendant did not state the relevant circumstances particular to the case; nor did it investigate or describe the cause of the loss. This was rejected by the defendant, which argued that it had adequately complied with its derivative burden of proof. The defendant further stated that its company was well organised as regards precautions taken to prevent the loss of transported goods.
At first instance, the Stuttgart District Court upheld the claimant's argument and granted the claim in full. On appeal, the Stuttgart Court of Appeal partly overruled the judgment of the lower instance court and modified it to the extent that the defendant was ordered to pay to the claimant only €95.83, plus legal costs of €46.41. It held that the compensation payable for the loss was limited to the amount stipulated in Section 431(1) of the Commercial Code. The court found that the damage was not caused by the defendant or its driver's qualified default in accordance with Section 435 of the code. It argued that even if the defendant had not complied with its derivative burden of proof, it could not be concluded that the damage resulted from an act or omission of the defendant or its employees with intent to cause such damage. On the contrary, according to the court, the defendant complied with its derivative burden of proof and its company was well organised. The court further allowed the claimant's appeal, which was restricted to the question of whether the defendant's liability for any loss of the goods was limited or whether the defendant must pay full compensation, respectively.
On appeal (on points of law), the case was heard by the Federal Court of Justice.
The Federal Court of Justice ruled that the defendant was fully liable pursuant to Sections 425(1) and 435 of the Commercial Code, in conjunction with Section 249 and the following of the Civil Code.
It reconfirmed its previous jurisdiction (ie, the burden of proof is incumbent on the claimant). However, under certain circumstances (eg, if the carrier is closer to the operations and thus has better access to the information required), the claimant may invoke a derivative burden of proof for the defendant with the consequence that the forwarder must state the relevant circumstances particular to the case. The court further ruled that the defendant could not rely on the limitation of liability under transport law, as the damage was caused by an act of gross negligence by the defendant (ie, a 'qualified fault') since the defendant was unable to comply with its derivative burden of proof, as it was, in particular, unable to state and confirm the following:
The court pointed out that the defendant was obliged to investigate in detail the relevant facts particular to the case immediately after the loss of the goods, and to document this in order to have sufficient proof in a possible following legal dispute. In addition, the court found that investigations such as the survey of the employees involved or calling the investigation service are important, as they might have resulted in the location of the missing packages.
Contrary to this, the defendant did not undertake detailed investigation measures but restricted its research to the tracking of two shipments without any results. As these results document only the course of the transportation of the parcels up to the time of loading, and as they do not reflect whether all of the parcels had actually been handed over to the claimant, they provide insufficient proof that the defendant had carried out detailed investigation measures.
Moreover, as the defendant's employees had not been instructed to scan and document each single package handed over to the recipient, and as the defendant did not contact the investigation service after the claimant's respective notification, there was a severe deficit in the defendant's company organisation.
The Federal Supreme Court specified the requirements regarding the forwarder's derivative burden of proof in the case of loss of goods. The decision that a forwarding company, which does not investigate, document and state in detail the relevant facts particular to the case immediately after the loss of goods, does not comply with its derivative burden of proof and is in line with previous court rulings concerning the allocation of the burden of proof in case of loss of goods. This ruling is welcome, as it takes into account that the parties involved in transportation do not always have the same access to the information particular to the case. In light of the judgment specifying the requirements for investigation measures, which must be documented by the forwarder in order to be able to state the relevant circumstances particular to the case, carriers would be well advised to instruct their drivers to scan all packages handed over to the recipients and to keep the respective documentation. Further, in the event that the recipient registers the loss of goods, the forwarder should, as a minimum, immediately thereafter contact the investigation service.
However, the judgment does not rule on the question as to what operational measures the forwarder must take to fulfil its burden of proof in cases of damage. Due to the similarity of cases of loss and damage, it may be assumed that the court will come to the same conclusions.
For further information please contact Alexandra Siedschlag or Marco G Remiorz at Dabelstein & Passehl by telephone (+49 40 31 77 97 0), fax (+49 40 31 77 97 77) or email (firstname.lastname@example.org or email@example.com).
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