The transport insurer of a factory claimed damages from a carrier for damage to transported goods.
The insured had engaged the defendant to transport eight boxes containing on-load tap changers from Germany to Canada by multimodal transport. The boxes had to be collected from the warehouse keeper of the insured. The defendant engaged a sub-carrier to pick up the goods. Six of the eight boxes were loaded on the vehicle’s trailer. As the other two boxes would not fit on the trailer, it was decided that they should be loaded onto the motor vehicle. To do this, the trailer had to be removed and the vehicle had to be backed up against the loading ramp. As soon as the driver had finished this manoeuvre, he began to load the two remaining boxes onto the motor vehicle – the boxes were stacked on a conveyor system at the time. The boxes tipped over from the conveyor system onto the vehicle’s loading platform. Employees of the warehouse keeper were not present when this occurred and had not ordered the driver to begin loading the remaining two boxes by himself.
The claimant reimbursed the insured and initiated legal proceedings against the defendant.
All three instances decided in favour of the claimant.
In principle, German land transport law applied. The first question to be assessed by the Federal Court of Justice was whether the defendant was liable under the transport law rules and thus whether the prejudice had occurred in the “period of custody” (ie, between handover by the sender to the carrier and delivery), such period starting by entering into possession of the goods. This requires the following three preconditions:
- The goods are in the carrier’s sphere of responsibility in such a way that it can protect the goods from damage;
- The carrier has the will to possess the goods; and
- The carrier has taken over the goods with the aim of transport.
The court decided that the damage to the goods took place outside the period of custody – with the consequence that transport law rules on liability (ie, on limitation of liability for damage during the relevant period) did not apply. The defendant’s liability therefore followed the general rules and remained unlimited.
The court stressed that in principle, the insured as the sender was responsible for the loading. As in this case the insured had engaged the warehouse keeper, the warehouse keeper was responsible for the loading. Accordingly, the first six boxes had been loaded by the warehouse keeper’s employees. The carrier’s driver was not involved in the procedure; nor had he been requested to be involved. When the driver started to load the remaining two boxes on his own authority and without the knowledge of the employees of the warehouse keeper, the warehouse keeper was still responsible for the loading.
The mere will of the carrier/driver to take custody over the goods is insufficient for a handover. As long as the sender is responsible for loading the goods, the handover can take place only once loading has finished. In this case, the driver acted without the knowledge or will of the warehouse keeper when loading the remaining boxes. Therefore, there was not even an implied agreement between the parties to an earlier handover to the carrier. According to the court, general contract law applied and the defendant was liable due to violation of duty of care because the driver had acted negligently during loading and had damaged the goods.
According to the court, the alternative transport law rule on limitation of liability for damages caused outside the period of custody was not applicable either, because due to its express wording such limitation does not apply to loss or damage to goods, but only to other kinds of prejudice.
An unauthorised act of the carrier or an auxiliary party during loading can lead to unlimited liability of the carrier.