As a transport insurer under the subrogated rights of its policyholder, the plaintiff claimed damages against the defendant for loss of goods in transit.
The policyholder commissioned the defendant for the cross-border transport of shoes. The defendant used a subcontractor to transport the goods. During the transport, the subcontractor handed the goods over to an unknown person, after not being able to find the correct unit listed in the delivery address. As a result, the cargo was lost.
The issues in dispute were whether:
- the consignment had been delivered to the agreed delivery address;
- the plaintiff had met its burden of proof; and
- the defendant was liable in a qualified manner.
The regional court ruled in favour of the claim entirely, essentially stating that the plaintiff was entitled to claim damages against the defendant. This was based on a subrogated right (section 86 of the Insurance Contract Act) of the policyholder under article 17(1) of the Convention on the Contract for the International Carriage of Goods by Road (CMR) in conjunction with article 29 of the CMR due to the loss of the cargo. The court held that the defendant was unable to invoke the limitation of liability under articles 23 or 25 of the CMR.
The delivery of the goods to an unknown person by the defendant's subcontractor, after the subcontractor had been unable to find the unit listed in delivery address, constituted reckless conduct. In this context, the delivery to an unauthorised person can also justify the loss of the goods if the goods cannot be retrieved immediately.
The defendant rightly pointed out that the burden of proof for the loss lay, in principle, with the plaintiff. However, the plaintiff had met its burden of proof by pointing out that, according to the defendant's submissions, the goods had not been delivered directly to the consignee named in the consignment note. It was then up to the defendant, as the carrier, to demonstrate that the goods had been handed over to the right consignee, which the defendant had failed to do.
Furthermore, the defendant could not invoke a limitation of liability under article 29(1) and (2) of the CMR as it had acted with gross negligence. To the extent that unlimited liability on the part of the carrier is in question, the claimant generally bears the burden of proof for the qualified fault in question. However, the burden of proof is already fulfilled if the circumstances of the case indicate a certain probability of qualified fault, and the defendant alone can reasonably contribute to the clarification of the damage caused in its area of responsibility. If the defendant fails to do so, this may justify the conclusion of qualified fault.
The carrier grossly breached its duty of care when it failed to find the appropriate unit at the stated delivery address and unloaded the goods at one of the gates of the warehouse on the instructions of a man unknown to him without establishing his identity or legitimacy to receive the consignment.
In principle, it is up to the claimant to prove the loss of the goods. However, if it is proven that the goods were not delivered to the consignee in accordance with the consignment note, it is up to the carrier to show and prove that the goods were delivered correctly. In doing so, the carrier may also be liable in a qualified manner if it acted negligently and with the knowledge that damage would probably occur.
For further information on this topic please contact Michael Zbonikowski or Marco G Remiorz at Arnecke Sibeth Dabelstein by telephone (+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.