Introduction
Facts
Decision
Comment
In an indicative court order the Oldenburg Higher Regional Court(1) as second instance held that if frozen goods are loaded after a random verification of the temperature by means of a thermometer and there are otherwise no indications that the measurements taken could be incorrect, there is no reason to further secure evidence of the handover temperature of the goods, in particular if this is entered in the transport document and acknowledged by the driver. The carrier cannot therefore simply deny that the goods had been precooled, but must explain why the final handover temperature was too high.
In any case, it is also necessary for the carrier to prove that the cold chain was maintained during the time that they were in charge of the goods until the goods were found to be too warm.
As the facts were gathered by the first instance(2) and the decision is not freely available, only certain facts are known.
On 14 May 2019 the plaintiff, a German company, handed over to the driver of the Dutch defendant goods that needed to be cooled continuously with a temperature of at least -18° Celsius.
Shortly before the handover, the goods as a whole had been picked up from the refrigerator and transported sufficiently refrigerated to the plaintiff. According to witness testimony, the goods were unloaded there again and were taken to the plaintiff's cold store, where the temperature was ‑25° Celsius. After only about 10-15 minutes, the goods were then transferred to the defendant's truck.
During the handover of the goods, random measurements were taken with a meat probe thermometer, all showing a temperature of at most ‑18° Celsius.
The driver of the defendant had signed transport documents in which the receipt of the goods with a temperature of ‑18° Celsius was acknowledged.
A few days later, the goods were unloaded and it was found that the temperature exceeded ‑18° Celsius. As a result, the recipient in Belgium rejected the goods.
The Court found that the plaintiff had handed over sufficiently cooled goods to the defendant (and with that consented to the first-instance decision).
The Court argued that as is customary during the handover of goods, random measurements had been taken with a meat probe thermometer, the results of which had given the plaintiff no reason to carry out further examinations of the goods, such as removing them from the pallets or unpacking them. Thereafter, there had been no indication that the refrigeration was insufficient. The plaintiff was able to rely on the fact that this test result had been recognised by the defendant. Otherwise, the defendant's driver could and should have taken further measurements. According to the reliable witness statement of the driver, it would have been possible to carry out a corresponding check. It was acknowledged that the delivery of goods had been randomly checked with a meat probe thermometer and that the required temperature had been indicated.
The Court continued to state that in a further evaluation of the evidence to be carried out on this basis, it was not in question that the other pallets and boxes, which had not been randomly measured, had also been sufficiently deep frozen. This was because the goods as a whole had only shortly before been picked up from the refrigerator and had been transported refrigerated to the plaintiff. Due to the reliable witness testimony that the goods had been unloaded there and taken to the plaintiff's cold store, where the temperature had been ‑25° Celsius, and that after only approximately 10-15 minutes they had been transferred to the defendant's truck, the goods were deemed to have entered the defendant's sphere of responsibility.
In view of these short distances and loading times, there was no reason to assume that only parts of the goods could have been maintained at the prescribed temperature, while others were not sufficiently cooled.
The Court correctly stated that the burden of proof (that the goods had been handed over to the defendant in a proper manner) lay with the plaintiff. More interestingly, the Court held that the provided proof was sufficient. Another judge could – in a similar case – decide otherwise, as the plaintiff "only" provided a chain of arguments that led to the targeted conclusion.
Judges in Germany must follow the law but do have discretion to some extent. Therefore, the plaintiff would have been well advised to have used a device that measures the temperature in the transport boxes or containers. However, the defendant should in future instruct its drivers not to state and confirm in the transport documents that all goods have the measured temperature, but should define those parts of the goods that have in fact been assessed, because – unfortunately – it is simply not practicable and probably not feasible to insist on the temperature of all goods being measured.
For further information on this topic please contact Marco G Remiorz or Lars Kortländer at Arnecke Sibeth Dabelstein by phone (+49 40 31 77 97 0) or email ([email protected] or [email protected]). The Arnecke Sibeth Dabelstein website can be accessed at www.asd-law.com.
Endnote