Carriers' liability for implementing safety instructions

Introduction
Facts
Decision
Comment

Introduction

The Bremen Regional Court recently held a road carrier liable for loss of goods under Article 29 of the Convention on the Contract for the International Carriage of Goods by Road (CMR). According to the court, the carrier had violated its obligation under a transport contract to park its vehicle only in secure official motorway service stations with CCTV-protected parking areas. The court emphasised that such clauses are common in transport contracts and do not unreasonably disadvantage carriers, which are obliged to implement them.

Facts

The carrier was commissioned to transport high-value goods from Bremen to France. The transport contract was issued with the safety instructions to park the vehicle only in secure official motorway service stations with CCTV-protected parking areas. The truck stopped overnight at a Belgian car park that was not under video surveillance. While parked, the vehicle was broken into and goods were stolen. The claimant considered the carrier fully liable for the damages incurred because, contrary to the contract's terms, the carrier had allowed the vehicle to be parked in an unsecured parking area.

The carrier argued that:

• the corresponding safety instructions to park the vehicle only in secure official motorway service stations with CCTV-protected parking areas were invalid under German law on general terms and conditions;
• the parking area had been illuminated and the driver had parked the vehicle directly under a street light; and
• CCTV-protected parking areas were unavailable along the route.

Decision

The Bremen Regional Court agreed with the claimant and ordered the carrier to pay all damages incurred beyond the limitation of liability set out in Article 23 of the CMR. The court held that the requirements for cancelling the limitation of liability set out in Article 29 of the CMR were satisfied because the damage had been the result of the carrier acting recklessly and with the knowledge that damage would probably occur. Therefore, the carrier had violated its obligation under the transport contract to park the vehicle only in secure official motorway service areas with CCTV-protected parking areas.

The court further argued that:

• the carrier's obligations had been effectively agreed by each party;
• such clauses:
  • are market standard;
  • are deemed to be effective by the Federal Court of Justice; and
  • do not unreasonably disadvantage carriers;
• under German case law, a wilful breach of agreed security obligations can constitute negligence on the part of the carrier similar to default on intent;
• the carrier regularly transported high-value goods for the claimant and should therefore have known that the goods required careful protection.

The court stressed that the carrier had violated the claimant's security instructions because the parking areas that it had used did not have CCTV surveillance. In the court's view:

• the carrier's failure to fulfil its contractual obligations was the root cause of the damage event; and
• the carrier supplied no evidence to prove otherwise.

Finally, the court asserted that the carrier could neither successfully prove that there were no CCTV-protected parking areas along the route nor ignore the claimant's safety instructions simply because it considered them impossible to comply with. In the court's opinion, the carrier should have either:

• rejected the transport order and submitted an offer with alternative safety measures; or
• taken other appropriate safety measures (eg, deployed a second driver).

In any event, the carrier should have obtained further instructions from the claimant on how to proceed under the transport contract.

Comment

The court's decision is in line with Federal Court of Justice case law and serves to remind carriers that all contractual obligations, particularly those relating to security instructions, must be fulfilled and that any carrier found to have breached these obligations could face unrestricted liability in the event of damages. Therefore, carriers should carefully assess the feasibility of implementing any listed safety instructions before accepting transport contracts.

For further information on this topic please contact Martin Kube or Marco G Remiorz at Arnecke Sibeth Dabelstein by telephone (+49 40 31 77 97 50) or email (m.kube@asd-law.com or m.remiorz@asd-law.com). The Arnecke Sibeth Dabelstein website can be accessed at www.asd-law.com.