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15 December 2010
There has been much debate about German jurisdiction concerning Article 29 of the Convention on the Contract for the International Carriage of Goods by Road (CMR). A recent case dealing with a decision made by the Nuremberg Court of Appeal on February 4 2009 (for further details please see "Loss of goods: safety-relevant contractual agreements") focused on what impact a safety-relevant contractual agreement has on determining whether the carrier acted with wilful misconduct or equally.
The parties had agreed in the contract of carriage of computers from Germany to Italy on a safety-relevant agreement. The case was referred to the German Federal Supreme Court which gave its judgment on October 20 2010. Thereby the Nuremberg Court of Appeal decision was partly overruled. However, the findings in respect of the impact of the safety-relevant contractual agreement were upheld. But in the finding that the claimant can claim damages regardless of the limitations set out in Article 23(3) CMR when damages are calculated according to Articles 29(1) and (2) CMR instead of national law, the Nuremberg Court of Appeal was overruled.
The claimant, an insurer of a sender with a branch in Regensburg (Germany), sued the carrier, an Italian Road Carrier with its main branch in Bozen (Italy), for damages due to the theft of computers in transit from Regensburg to Cambiago (Italy).
Within the contract of carriage by road the parties had agreed on special safety guidelines. The guidelines stipulated that no breaks are permitted in unsecured and unguarded parking areas, that the lorry is never to be left unattended and that, in case of a theft, it is to be reported immediately at the nearest police station. Furthermore, the parties agreed that the driver would drive directly from Regensburg to Bozen, where he would take a break on the carrier's guarded premises and from there would directly proceed to the designated delivery point.
After having taken a break in Bozen, the driver encountered heavy traffic close to the designated delivery point. He then took a break at an unguarded parking area. After locking the lorry and activating the immobiliser system, the driver went to the bathroom and had a coffee. Overall he left the lorry unattended for approximately one hour. In that time the lorry was stolen. It was not until three hours later that the theft was reported at the next police station.
The claimant claimed full compensation for the damage calculated under Articles 29(1) and (2) CMR.
The Nuremberg Court of Appeal held that the claimant could claim full compensation. Whenever the carrier acts with wilful misconduct or equally in the sense of Article 29 CMR, the claimant has the choice to calculate its damage according to the applicable national law and/or Article 17 ff CMR. In the opinion of the Nuremberg Court of Appeal the claimant could, if it chose, calculate its damage according to Articles 23 (1) and (2) CMR, regardless of the limitations in Article 23(3).
The German Federal Supreme Court dismissed this finding of the Nuremberg Court of Appeal. In the opinion of the Supreme Court Article 23(3) must apply in cases where the claimant decides to calculate its damage according to Articles 23 (1) and (2). The court justified its reasoning by stating that Articles 23 (1), (2) and (3) CMR are connected with each other. Therefore they have to be seen as a single liability regime. This is due to the fact that like Article 23(3), Articles 23(1) and (2) CMR also contain a limitation. When the damage is calculated according to Articles 23(1) and (2) immaterial damage such as lost earnings and consequential damages are excluded.
There has been an ongoing dispute within Germany about the question whether the claimant in cases of Article 29 CMR is allowed to perform 'cherry picking' when assessing its damage.
Until this Supreme Court decision the view of the courts and the main practitioners was in line with the one taken by the Nuremberg Court of Appeal. This view argues that the aim of Article 29 is to alter the position of the claimant in every way. It follows that the claimant must, in this view, be allowed to calculate its damage according to Articles 23(1) and (2) CMR despite the limitation of Article 23(3).
Although it is true that the carrier had forfeited its right to limit its liability according to Article 17 ff CMR in cases of Article 29 CMR and in this respect alters the positions of the claimant, the decision of the Supreme Court seems right. When the claimant decides to claim damages according to Articles 23(1) and (2) it must be bound by this decision in all respect. This is not only due to the fact pointed out by the Supreme Court that Articles 29(1), (2) and (3) CMR are a single liability regime. Furthermore, the decision is to be supported as only in this way the scope of the CMR – to implement an internationally unified liability system for road carriage – can be reached.
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