DMC Category Rating – Developed

Facts
The defendant freight forwarder was instructed – on a fixed costs basis - by the seller I. GmbH to arrange for the transport of a printing machine sold at a price of DM 1.2m. to the buyer G. in Istanbul. The cargo consisted of 21 crates, with a total weight of 26,470 kg and had to be transported by two trucks. The carriage of the second part of the cargo, the so-called "Machine 2" of the press with a weight of 6,940 kg, was sub-contracted to T. GmbH. During the transit of this part of the cargo through Romania on 15 June 1993, the truck came off the road and the trailer carrying Machine 2 overturned. The plaintiff transport underwriter of I. GmbH compensated its insured in the amount of DM 1,135,177 and claimed payment of this amount from the defendant. The plaintiff argued, amongst other things, that the defendant’s liability was unlimited because the loss had been caused by gross negligence on the part of the truck driver.

The Hamburg Landgericht as first instance court, had held in favour of the plaintiff that the defendant’s liability was unlimited. The Oberlandesgericht for Hamburg, as second instance court, confirmed this judgment and held that the driver had been grossly negligent, either because he had been overtired or because he had committed a mistake in driving the truck due to extreme time pressure. The defendant, who had the burden of disproving gross negligence, had not put forward any facts to prove any other cause of the loss.

The Judgment
Upon the defendant’s appeal, the BGH held that the defendant was entitled to limit its liability pursuant to Art.23 CMR**, because the plaintiff had not proved to the satisfaction of the court that the loss had been caused by gross negligence on the part of the driver.

Contrary to the findings of the second instance court, the BGH found that there were no clear indications that the driver had made incorrect statements when he was questioned by the Romanian police. Neither could it be ascertained that the findings of the police were solely based on the statements of the driver. The fact that the police report was consistent with the driver’s statements merely indicated that these statements had been plausible.

Neither should the appeal court have assumed that the driver had been under extreme time pressure. The appeal court had simply accepted the plaintiff’s allegation that the second part of the transport would have had to be performed within five days according to the provisions of the Letter of Credit. The defendant had convincingly argued that the expiry date of the Letter of Credit was 30 June 1993 and the latest shipment date 21 June 1993. Accordingly, the conditions of the Letter of Credit would have entitled the defendant to load the cargo even as late as 15 June 1993, that is, on the date of the accident. Moreover, the appeal court had not taken into account that the relevant transport order had only made reference to the shipment dates, and not the expiry date, in the Letter of Credit, and that the defendant had merely been requested to load the cargo within the week beginning 31 May, without fixing an exact date for the commencement of the transport. Accordingly, the appeal court had not been entitled to assume that the transport should have been performed within five days.

Neither were there sufficient indications that the driver had been overtired. The mere possibility that the driver may not have observed the rest periods could not be held against the defendant because the Romanian police, who had recorded the statement of the driver, drawn up a sketch of the accident and made an alcohol test, had not seen any need to consider that the alleged tiredness of the driver may have caused the accident. Taking into account that the police had also checked the tachometer recordings of the truck, it would have been obvious to make a corresponding statement in the report and/or to initiate proceedings against the driver if there had been indications that he had been overtired.

Finally, the appeal court should have taken into account that any mistake of the driver may have been due to a momentary failure that may as such have been due neither to excessive speed nor to tiredness.

Comment
The judgment shows that, apart from the typical cases in which the courts assume gross negligence in the defendant’s business organization (for example, insufficient control of incoming and outgoing goods during transhipment or cases of theft due to a faulty organization of the transport), the mere allegation that certain circumstances may have caused the loss is not always sufficient to shift the burden of proof onto the freight forwarder/carrier and to presume its severe fault if it does not provide full evidence that the loss was not caused by intent or gross negligence on its part. In the above case, the court found that it was not up to the freight forwarder to put forward what precautionary measures were taken to avoid any tiredness of the driver, and how such measures were implemented and controlled. Instead, the defendant was sufficiently exonerated by the fact that the police did not find any indications that the driver had been overtired. It was therefore up to the plaintiffs to present conclusive evidence for their allegations.

*Art.29 CMR reads:
"1. The carrier shall not be entitled to avail himself of the provisions of this chapter which exclude or limit his liability or which shift the burden of proof if the damage was caused by his wilful misconduct or by such default on his part as, in accordance with the law of the court or tribunal seised of the case, is considered as equivalent to wilful misconduct.
2. The same provision shall apply if the wilful misconduct or default is committed by the agents of servants of the carrier or by any other person of whose services he makes use for the purposes of the carriage, when such agents, servants or other persons are acting within the scope of their employment….."

**Art.23 CMR entitles the carrier to limit its liability in respect of the total or partial loss of the goods to an amount not exceeding 25 gold francs per kilogramme, which in this case, would have amounted to about DM156,000.00.