German Law: Causation under CMR

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DMC/SandT/08/14
Federal Republic of Germany: Berlin Landgericht: Judgment 4 July 2007: 97 O 6/07
CMR: CARRIAGE OF TEMPERATURE-SENSITIVE GOODS: WHETHER CONSIGNOR INSTRUCTED CARRIER REGARDING REQUIRED TEMPERATURE RANGE: GOODS SUBJECTED TO OUT-OF-RANGE TEMPERATURES DURING TRANSIT: GOODS STOLEN FROM UNGUARDED PARK: WHETHER LOSS OF GOODS CAUSED BY EXPOSURE TO OUT-OF-RANGE TEMPERATURES OR BY THE THEFT
Summary
In determining the true cause of the loss in transit of a consignment of temperature-sensitive medical products, the Regional Court of Berlin (the Berlin Landgericht) applied principles of German law to the question of causation, as the CMR Convention, to which the transport was subject, does not address such issues. In the instant case, the Court held that the loss of the consignment was caused by its exposure to temperatures that were too low, for which the carrier could not be blamed, rather than by its theft from a lorry park, for which the carrier could be blamed.

DMC Category Rating: Developed

This case note is contributed by Jacobus Bracker of the Law Office Jacobus Bracker. This firm is the International Contributor to the website for the Federal Republic of Germany

The Facts
The 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 the defendants for the transport of sixteen europallets of a liquid medication 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 waybill 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^rd to 6th 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 were not entitled to limit their liability by reason of articles 17 and 29 of CMR (Convention on the Contract for the International Carriage of Goods by Road) and s.435 of the German Commercial Code (HGB). It was alleged that the theft of the goods had been caused by recklessness as the carrier had been grossly negligent in leaving 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 would have been overcooled and therefore would not been fit for their medical purposes anymore.

Defendants further argued that they were not liable for such overcooling, as they had had no instructions to transport the goods within a certain temperature range and had no knowledge of the temperature sensitivity of the goods.

The Court's Decision
The court rendered a judgment in favour of defendants and dismissed the claim. The court was convinced that the goods were already worthless (in that they were not any more fit for medical purposes) at the time of the theft due to the overcooling. Further plaintiffs had not proved that they gave proper instructions to the carrier regarding the temperature.

For a carrier to be liable under Article 17 CMR, the loss had to be caused by a negligent act of the carrier. Questions of causation were not regulated by the CMR and had therefore to be decided by the applicable German law. The temperature sensitivity of the goods had been an inherent risk which would have materialised even if the goods had not been stolen, as the outdoor temperatures during the time of the transport had been below the permitted 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 performance had to be considered as reckless.

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. Similarly, it is important for the first carrier or forwarder to give the same instructions to his subcontractor. Otherwise he may not be able to recover claims from the subcontractor for which he is liable towards cargo interests.

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