3 April 2008
The question of causality is not governed by the CMR. The Regional Court of Berlin had to decide a case of a theft of temperature sensitive goods.
The Facts
Cargo insurers of a German exporter of medical products sued a logistics company for damages their insured was claiming for the loss of goods during a CMR road transport. The insured entered into a contract of carriage with defendants for the transport of 16 europallets of a liquid medicament by truck from Berlin to London.
The delivery notes contained a remark that the goods had to be stored and transported at a temperature between 4 and 25 degrees Celsius. However, neither the insured's transport order nor the CMR way bill contained a note regarding the temperature range.
Defendants subcontracted the transport to another carrier which subcontracted it again. After the driver had loaded the goods he parked the truck over the weekend from 3 to 6 February 2006 in an industrial park near to Berlin. Temperatures during those days were between 1 and minus 14 degrees Celsius. When the driver returned to the truck on Monday morning the semi-trailer and the cargo had been stolen.
The Pleadings
Plaintiffs argued that defendants were liable for the loss and not allowed to limit their liability due to article 17, 29 CMR (Convention on the Contract for the International Carriage of Goods by Road) and sec 435 of the German Commercial Code (HGB). It was alleged that the theft of the goods had been caused by recklessness as it had been a severe neglect of the carrier's due diligence to leave the truck unguarded over the weekend.
Defendants argued that they were not liable at all as the theft of the goods had not caused the total loss. The loss had in fact been caused by the low temperatures. Even if the goods had not been stolen they had been overcooled and therefore not been ready for their medical purposes anymore.
Defendants further argued that they were not liable for such overcooling as they had no instructions to transport the goods within a certain temperature range and as they had no knowledge of the temperature sensitivity of the goods.
The Court's Decision
The court rendered a judgement in favour of defendants and dismissed the claim. The court was convinced that the goods were already defective at the time of the theft due to the overcooling. Further plaintiffs had not proven that they gave proper instructions to the carrier regarding the temperature.
The carrier's liability under article 17 CMR required that a negligent carrier's act had caused the loss. Questions of causality were not regulated by the CMR and had therefore to be decided by the subsidiarily applicable German law. The temperature sensitivity of the goods had been an inherent risk which would have materialised also if the goods had not been stolen as the outdoor temperatures during the time of the transport had been below the allowed temperature range.
The fact that the carrier had parked the truck and the trailer unguarded in an industrial area over the weekend had not caused the loss. So, the carrier was not liable even if his perfomrance had to be considered as reckless.
LG Berlin, Judgement of 4 July 2007 - 97 O 6/07
Comment
The decision is a good example for the importance of proper and clear instructions to the carrier especially if special precautions have to be taken to protect the goods. Special instructions should also be entered into consignment notes. For the first carrier or forwarder it is of importance to give the same instructions to his subcontractor. Otherwise he may not be able to recover claims he is liable for towards cargo interests.
Read Jacobus Bracker's comment also at Forwarderlaw.
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