Felix Goebel, Arnecke Sibeth Dabelstein
Pursuant to section 425(1) of the German Commercial Code (HGB), a carrier is liable for damage caused by loss of, or damage to, goods in the period from acceptance for carriage until delivery, or by exceeding the delivery period. The carrier is liable, irrespective of fault, within the scope of the custodial liability incumbent on them. According to sections 426 and 427 of the HGB, the carrier can only be released from liability if unavoidable circumstances arise despite the greatest care.
In order to compensate for the carrier’s strict liability, section 431 of the HGB provides for limits on the amount of liability in the event of loss of or damage to the goods (1) and in the event of the delivery period being exceeded. (2) However, these limitations of liability do not apply if the carrier or the persons named in section 428 HGB are guilty of qualified fault within the meaning of section 435 of the HGB.
The shippers of valuable goods often issue instructions to the carriers that they commission on how to handle the goods during transport in order to avoid loss (eg, through theft, as the goods are at a greater risk of theft). This is often done in general terms and conditions (GTCs) unilaterally drawn up by the shippers. However, the question then arises as to whether the shipper’s GTCs have been included in the transport order issued and whether the instruction issued is also effective.
The subject of a recent case (3) was the following clause: “If loaded vehicles are parked, they shall be monitored or parked where adequate security is provided”.
A semitrailer, loaded with goods allegedly worth €1.09 million, had been parked separately in an unguarded industrial area during the night after being uncoupled from a tractor and stolen.
The Court of Appeal considered the instruction issued by the shipper to be effective and assumed that the carrier’s failure to observe it constituted a qualified fault within the meaning of section 435 of the HGB. In contrast, the Federal Court of Justice ruled that the clause in question in the sender’s GTCs was unclear. Therefore, the clause had to be interpreted in favour of the carrier to the effect that it did not impose any duty of care on the carrier with regard to the parking of vehicles that went beyond what was required by law.
According to the Court, only the first part of the clause in question (ie, “loaded parked vehicles are to be monitored”) had been clearly formulated. The Court considered the further content of the clause to be unclear and, therefore, invalid. The instruction to park loaded vehicles only in places where “sufficient security” was ensured could, due to the open wording, also be understood in a way that did not go beyond what is already required of a carrier by law.
Since both variants of the clause were linked with “or”, the interpretation of the clause led to the interpretation that the carrier did not necessarily have the duty to monitor the parked vehicle. As a result, the carrier only had to comply with the duties of care that applied anyway. Thus, there was no special contractual duty of care serving to secure the transported goods that the carrier had breached. Consequently, a qualified fault of the carrier within the meaning of section 435 of the HGB could not be based on this.
The disputed clause in the GTCs of the consignor, according to which loaded vehicles are to be supervised when parked or parked where sufficient security is ensured, does not oblige the carrier to comply with duties of care that exceed the statutory level, as the clause is unclearly worded.
Therefore, it is necessary to clearly formulate shipper GTCs and master transport contracts, especially if the GTCs contain instructions for the carrier that would trigger an unlimited liability if violated.
The same applies to individually issued instructions, which must specify precisely with which safety instructions a carrier must comply.
Ambiguities in instructions make things difficult for the shipper but give the carrier an advantage.
For further information on this topic please contact Felix Goebel at Arnecke Sibeth Dabelstein by telephone (+49 40 31 779 70) or email (firstname.lastname@example.org). The Arnecke Sibeth Dabelstein website can be accessed at www.asd-law.com.