German Law: Causation under CMR
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 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 3rd 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.
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
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.
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