Olaf Hartenstein and Michael Semder, Dabelstein & Passehl, Germany
On March 20 2012 the Cologne Higher Regional Court applied a series of practically relevant rules of (land) transport law.
Palettes of canned and jarred food were shipped from Germany to Thailand under multimodal transport. The jars and cans were transported on trays made of cardboard and partly covered by plastic; and the trays were stacked loosely in a container. On arrival in Thailand it was discovered that several jars had broken and started to get mouldy. The whole cargo had to be disposed of.
The sender believed that the damage was caused by rough treatment of the container and sued the carrier for damages. The carrier argued that the jars had broken due to insufficient packaging and too much space between the trays, which led to the unsafe positioning of the cans and jars in the container.
The court held that the carrier was not liable. The sender was unable to rebut the prima facie evidence that inadequate packaging and loading of the goods had caused the damages. As it remained unknown where the damage occurred, the courts rightly applied general (land) transport law.
In principle, under transport law the carrier is liable for all damage which occurs to goods while they are in its possession (Section 425 of the Commercial Code). As an exception to the rule, the carrier is generally not liable if the damage was caused by the sender. Section 427(1) of the code states that the sender has no claim against the carrier if the damage was caused by:
- insufficient packaging or unsafe loading by the sender;
- mutually agreed upon open transport or transport on deck;
- insufficient labelling of the container;
- the natural character of the goods that are vulnerable to the dangers of transport (eg, rust, breakage, spoilage or desiccation); or
- the shipping of live animals.
If damage could have occurred due to one of these reasons, it is presumed that it occurred because of that reason. Therefore, the carrier must prove only that at least one of the risks were given. If so, according to Section 427(2), there is a presumption that the sender’s wrongful handling caused the damage. The presumption is rebuttable. However, the sender would have to bring evidence that its wrongful handling was not the cause of the damage.
In the case, the carrier could have brought evidence (through a court-appointed expert) that the goods were packed insufficiently and loaded unsafely by the sender. Although, the carrier could not prove that this caused the damage, it could demonstrate that it may have led to the damage. This assumption was sufficient, as the sender could bring no evidence to the contrary.
The presumption does not apply if the carrier acted recklessly (Section 435 of the code). In the case at hand, the sender pleaded reckless behaviour of the carrier and intended to rely on case law which presumed the carrier’s recklessness unless the carrier submitted all the facts and circumstances of the carriage. However, a condition for such presumption is that there are at least some facts which indicate reckless behaviour. This was not the case here. The court saw no indication of reckless behaviour by the carrier.
The court dismissed the claim.
For further information on this topic please contact Olaf Hartenstein or Michael Semder at Dabelstein & Passehl by telephone (+49 40 31 77 970) or email (firstname.lastname@example.org or email@example.com). The Dabelstein & Passehl website can be accessed at www.da-pa.com.