A breach of specific contractual agreements constitutes qualified fault and leads to unlimited liability of the carrier.
The carrier’s liability for losses caused in its custody is limited. The lower the weight and the higher the value of the goods, the greater is the gap between the consignor’s damage and the compensation the carrier has to pay. Only in the case of willful misconduct or reckless fault, the limitations of liability do not apply. It is therefore not surprising that questions of such qualified fault and thus of unlimited liability are of great importance for shippers and carriers.
In legal proceedings conducted by us before the Hanseatic Higher Regional Court (Hanseatisches Oberlandesgericht) of Hamburg, the court again clarified in a notice in June of this year that a breach of specific contractual agreements constitutes qualified fault.
The case concerned a consignment of cigarettes to be transported within Germany. During a stop on an unguarded motorway station over the weekend, the trailer was cut open and a considerable number of cigarettes were stolen. However, it was contractually agreed between the shipper and the carrier that overnight stops were only permitted with the shipper’s prior consent. The Higher Regional Court (Oberlandesgericht) of Hamburg, which only rarely assumes a qualified fault, saw the breach of this clear regulation as a qualified fault leading to unlimited liability.
In the same way the Regional Court (Landgericht) of Bremen decided a few months earlier in its judgement of June 6, 2018, file no. 11 O 169/17: Clauses in a transportation contract according to which stops are only permitted on guarded and video-monitored parking lots are valid. If the carrier does not adhere to these requirements, he acts, according to the judgment, at least recklessly and is liable without limitation.
Consignors of theft-prone goods should therefore agree in the contract that only guarded parking lots are permitted for stops, and carriers, if they consent to such agreements, should inform their drivers or subcontractors accordingly, otherwise unlimited liability is imminent.
Robert N. Kuss, LL.M. oec.