BGH, Urteil vom 13. Oktober 2022 – I ZR 151/21
In a recent decision, the German federal court of justice (BGH) addressed the issue of whether the principal carrier can be held fully liable without limitation to the sender under Article 29 CMR when the breach of duty is committed by the sub-carrier concerning obligations that exist exclusively in the relationship between the principal carrier and the sub-carrier, but not in the principal carrier´s agreement with the sender. In the case presented before the court, the principal carrier had imposed stricter security precautions on the sub-carrier than those they had to comply with according to the contract with the sender.
Facts of the case:
The sender assigned the principal carrier with the delivery of TVs and Cables from London, UK to Berlin, Germany. The order was given via telephone, therefore no written contract existed. The transport order from the sender did not contain any safety obligations to the principal carrier regarding secured stops, especially no obligation to stop only at monitored parking lots. The principal carrier hired a sub-carrier. The sub-carrier was obligated by the principal carrier to follow strict safety precautions, exceeding those given to the principal carrier by the sender. As such, the sub-carrier was authorized only to stop at monitored parking lots. The sub-carrier hired another sub-carrier who became the executing carrier.
On the evening of 01.09.2011 in London the driver signed the bill of lading stating that the goods had been loaded onto the truck. The truck´s loading area was only secured by a tarpaulin. The driver had to comply with his resting times but was not allowed to stay the night within the secured compound of the warehouse. He therefore parked in a nearby industrial park and went to rest in the driver’s cabin. During the night the truck´s tarpaulin was opened and several palettes with packages were removed by multiple individuals. The driver noticed this and was able to interrupt the process by turning on the engines. After driving back to the warehouse, the remaining packages were unloaded. The driver noted in the bill of lading that 353 TVs and 557 cables had been stolen.
According to the claimant, the resulting losses amount to EUR 71.157 plus EUR 5.199,97 expenses for surveyors.
The claimant (the sender´s insurer) sued both defendants for payment of the amount. The defendants raised the defence of statute of limitations.
The district court sentenced the defendants as requested. The appellate court dismissed the defendants’ appeal with the clarifying condition that the defendants are jointly liable.
The federal court of justice partially overturned the ruling of the previous courts and established the following guiding principles:
- “The principal carrier is only liable to the sender without limitation under art. 29 CMR if they can be accused of qualified fault in relation to the contractual obligations imposed on them by the sender. It is not at the expense of the principal carrier if he imposes stricter safety requirements on a sub-carrier than those, he himself must adhere to towards the shipper, and if the sub-carrier is found to have qualified fault in relation to the principal carrier.”
- “The recipient, upon determining the loss of the cargo, can, as a third-party beneficiary, assert the rights under the carriage contract not only against the main carrier and the delivering subcarrier but also against the subcarrier who did not perform the transport themselves but is obligated to deliver the transported goods to the recipient due to the sub-freight contract they have concluded.” (continuation of BGH decisions 14.06.2007 – I ZR 50/05; 30.10.2008 – I ZR 12/06)
(translation by the author)
Limited liability of the principal carrier:
According to Article 29 par. 1 CMR, the carrier cannot limit their liability, if the damages were caused by wilful misconduct or by such a default on his part as, in accordance with the law of the court or tribunal seized of the case, is considered as equivalent to wilful misconduct. The same provision shall apply, if the wilful misconduct or default is committed by the agents or servants of the carrier. Since the applicable law in this case according to Article 3 par. 1 Rome I is German law, § 435 of the German commercial code (Handelsgesetzbuch – HGB) applies. According to § 435 HGB, the carrier cannot limit his liability, if the damage was caused by an act of wilful misconduct or recklessness (“Leichtfertigkeit”) with the awareness, that a damage would probably occur. Recklessness requires a particularly severe breach of duty, in which the carrier or his agent blatantly disregards the safety interests of the contacting party.
The particularly severe breach of duty for the element of recklessness must result from the contractual relationship between the sender and the principal carrier. Subsequently, the principal carrier is only liable without limitation if the accusation of recklessness can be attributed to him, considering the contractual obligations he owes to the sender. However, it cannot be held against him if, as the principal carrier, he imposes stricter safety requirements on his sub-carrier than those he must adhere to with the sender, and the sub-carrier is subject to allegations of qualified fault in relation to the principal carrier.
Element of recklessness (“Leichtfertigkeit”)
As stated before, recklessness requires a particularly severe breach of duty, in which the carrier or his agent blatantly disregards the safety interests of the contacting party. Therefore, the question arises what precautions must be undertaken by the carrier to avoid a particularly severe breach of duty.
The security measures that the carrier must take to fulfil its contractual obligation to safeguard the entrusted cargo from theft or robbery during transportation depend on the circumstances of each individual case. It is crucial to determine whether the measures taken meet the due diligence requirements necessary for the transportation at hand. The greater the risks associated with the transportation of the goods, the higher the requirements for security measures that must be implemented. Of significant importance in this context is whether the transported cargo is easily marketable and thus particularly susceptible to theft, its value, whether the carrier should have been aware of any specific risks, and the specific options available for secure rest breaks to comply with prescribed rest periods (BGH Urt. V. 06.06.2007 – I ZR 121/04; BGH Urt. V. 01.07.2010 – I ZR 176/08).
The accusation of recklessness is only justified when the carrier can sufficiently and concretely recognize the specific hazardous situation. A general notice that the cargo is susceptible to theft is not sufficient. It is the responsibility of the sender to clearly communicate the objectively existing specific risks associated with the transportation to the carrier through explicit instructions in the shipping order (BGH, TranspR 211, 78).
Direct liability of the non-delivering sub-carrier
The sub-carrier is directly liable to the recipient in accordance with Article 13 par. 1 sent. 2, Article 17 par. 1 CMR in connection with § 328 German civil code (Bürgerliches Gesetzbuch – BGB), even though they are not directly linked by contractual relations.
The recipient was included as a third-party beneficiary in the sub-freight contract concluded between the principal carrier and the sub-carrier in such a way that the recipient could assert secondary claims arising from the contract for any potential transport damage against the sub-carrier. The recipient is generally considered a third-party beneficiary of a sub-freight contract when the sub-carrier is obligated to deliver the cargo to them. This is not limited to cases where the sub-carrier being held liable is the delivering subcarrier; rather, the obligation to deliver is sufficient.
After the arrival of the goods at the designated place for delivery, the recipient is entitled, in accordance with Article 13, paragraph 1, sentence 1 CMR, to request from the carrier, upon receipt confirmation, the handover of the second copy of the consignment note and the delivery of the cargo. According to Article 13, paragraph 1, sentence 2 of the CMR, the recipient can assert the rights from the carriage contract in their own name against the carrier when the loss of the goods is established or if the goods have not arrived within the time limit provided for in Article 19 CMR.
The recipient can assert these rights against both the principal carrier and the delivering sub-carrier. The principal carrier, who does not perform a transport order themselves but instead contracts another (sub)carrier in their own name and for their own account, enters into an independent (sub)freight contract with them. The principal carrier is considered the sender under land freight law because they are the contracting party of the (sub)freight carrier. The sub-carrier is liable to the principal carrier, who is the sender, in the case of an international transport contract, according to the liability provisions of Articles 17 and following of the CMR. However, if the principal carrier holds the sub-carrier fully liable, there is no reason to exclude their liability towards the recipient as a third-party beneficiary of the sub-freight contract. The recipient must also be authorized to assert the primary rights under Article 13, par. 1, sent. 1 CMR, regarding the delivery of the goods and the handover of the duplicate of the consignment note against the delivering sub-carrier. Otherwise, Article 13, par. 1, sent. 1 CMR would be largely meaningless in transport chains based on sub-freight contracts, and the practical handling of such transports would be significantly complicated. Since the recipient’s secondary rights are meant to sanction their primary rights, the recipient must be entitled to the liability claims under Article 13, par. 1, sent. 2 CMR against the sub-carrier accordingly.
Article 13, par. 1, sent. 2 CMR generally stipulates that the recipient can assert their rights “under the carriage contract” in their own name “against the carrier” when the loss of the goods has been established or when the goods have not arrived within the specified time. This does not impose any restriction on the recipient’s entitlement to a specific carrier. In particular, this provision does not imply that only the carrier who performed the transport or caused the loss or delay should be the one held liable. Instead, when we consider Article 13, par. 1, sent. 2 in connection with Article 13, par. 1, sent. 1 CMR, it becomes evident that the recipient can seek remedy from the party from whom they can demand the delivery of the goods under the respective carriage contract. If there are multiple carriers in the chain of carriers who have contractually committed to delivering to the recipient, several individuals may be held liable to the recipient under Article 13, par. 1, sent. 2 CMR.