We would like to ensure that you are still receiving content that you find useful – please confirm that you would like to continue to receive ILO newsletters.
16 July 2008
In two recent cases(1) the Federal Court has developed its jurisdiction on the reduction of carrier liability for the contributory negligence of the consignor.
The Federal Court had to rule on a number of appeals lodged by parcel services against judgments granting unlimited liability based on gross negligence under Article 29 of the Convention on Contracts for the International Carriage of Goods by Road and corresponding Section 435 of the German Commercial Code. The lower courts had approved the unlimited liability of the carrier and denied the contributory negligence of the consignor.
First the Federal Court confirmed that the carrier acted with gross negligence as it had not provided for a continuous interface control in respect of handling the cargo. However, it rejected the lower courts' opinion that contributory negligence under Section 254(1) of the Civil Code should be denied. Section 254(1) of the Civil Code specifies that liability and the amount of compensation depend on the circumstances - that is, the extent to which the damage was caused by the carrier and how much the consignor contributed to the occurrence of damage. The lower courts ruled that the carrier did not prove that it would have treated the consignments with special care had it known of their value. The court held that a prudent consignor would have realized that the special treatment of a consignment of high value is guaranteed only if the consignment is handed over to the parcel service separately from standard consignments.
Furthermore, the court based the contributory negligence of the consignors on Section 254(2) of the Civil Code, stating that contributory negligence can arise from the consignor's failure to draw the carrier’s attention to the danger of unusually extensive damage, where the carrier neither was nor ought to have been aware of the danger. The court confirmed that a danger of unusually extensive damage exists if the damage exceeds 10 times the limitation of liability stipulated in the general terms and conditions of the carrier.
However, the court did not assess the details of the claims, but rather referred the cases back to the lower courts.
Although the decisions related to parcel services, generally claimants must consider that the ability of the German courts to impose unlimited liability on the carrier may be restricted by the contributory negligence regime.
The court laid down the principle that contributory negligence under Section 254(2) of the Civil Code may be approved if the value of the consignment is more than 10 times higher than the limitation of liability. However, the judge is still free to acknowledge contributory negligence and to evaluate the extent of the reduction of the specific claim. Therefore, it is still worth attempting to claim full compensation for the damage, particularly as causation of the contributory negligence may be denied if the carrier would not have treated the consignment with special care had it been instructed of the value.
Furthermore, claimants are supported by the fact that for contributory negligence to arise under Section 254(1) of the Civil Code, the carrier must generally prove that the consignor was or should have been aware of the carrier’s special service for high-value consignments and that the carrier would have provided for special treatment of the consignment in comparison to standard consignments. Both these points may be difficult for the carrier to prove if the consignor was not instructed regarding a special service for high-value consignments.
The materials contained on this website are for general information purposes only and are subject to the disclaimer.
ILO is a premium online legal update service for major companies and law firms worldwide. In-house corporate counsel and other users of legal services, as well as law firm partners, qualify for a free subscription.