Delivery of goods by parking container outside consignee premises

According to the Bremen Higher Regional Court, if agreed by contracting parties, goods can be delivered by parking a shipping container in front of the consignee's premises during non-business hours. In such instances, the carrier will not be liable if the cargo is stolen.(1)

Facts

The plaintiff's insured commissioned the defendant to collect a container with 61 bales of sheep's wool (valued at approximately $260,000) from the container terminal in Bremerhaven and transport it to its branch in Bremen. The driver took over the container and parked the semi-trailer holding it in front of the insured's premises during the evening of the same day; he deposited the freight documents in the insured's letterbox. During the night, unknown persons stole the chassis together with the container.

After the assignment of rights by the insured, the insurer took recourse against the defendant carrier.

For 20 years, the plaintiff's insured and the defendant had had an agreement that:

• containers delivered outside business hours must be parked on a semi-trailer in front of the company premises; and
• the freight and customs documents relating to said containers could be deposited in the company's letterbox.

The parties disagreed as to whether the procedure described was handled in the same way at the time of the incident.

At first instance, the claim was granted.

Decision

The Bremen Higher Regional Court dismissed the claim. According to the court, the defendant was not liable for the loss of goods as the loss had occurred after the goods were delivered to the plaintiff's insured (ie, by parking the container in front of the premises).

Under German law, goods are 'delivered' when a carrier gives up custody of them and enables the consignee, with its will and consent, to exercise effective control thereover. The consignee need not have already physically seized the goods; they must merely have been made available to it with its consent in such a way to allow it to acquire them without further hindrance.

The Bremen Higher Regional Court held that deliveries during non-business hours to a consignee's unsupervised warehouse can be made such that the container is parked in front of the premises. However, this requires the consignee's consent, which applies even when the container is parked in front of the warehouse.

In the case at hand, the defendant had therefore been right to assume that it could park the container in front of the insured's premises as no notification to the contrary was given.

Comment

Parties with a longstanding business relationship seldom have complete and clear agreements as to their rights and obligations under a transport contract. Further, if shipments happen infrequently over many years, the applicability and specifications of said agreements (eg, transport order requirements) can be hard to determine.

This decision is a useful reminder that parties to a transport contract must have unequivocal terms of delivery. Moreover, as the German courts use similar interpretations of the term 'delivery' under the Contract for the International Carriage of Goods by Road (CMR) and national transport law, this decision is likely to receive further attention in cases involving CMR claims.

For further information on this topic please contact Anna Lena Wülbern or Olaf Hartenstein at Arnecke Sibeth Dabelstein by telephone (+49 40 31 779 70) or email (a.wuelbern@asd-law.com or o.hartenstein@asd-law.com). The Arnecke Sibeth Dabelstein website can be accessed at www.asd-law.com.

Endnotes

(1) Bremen Higher Regional Court, 13 July 2018 (2 U 78/17).