Cabotage insurance in Germany. What scope of carrier liability must be included?
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In Germany, thieves steal 26,000 trucks per year and goods worth a total of €1.3 billion, according to data from the German Insurance Association (GDV).
A further €900 million is generated in connection with contractual penalties for the following:
– late delivery,
– repair costs,
– loss of turnover,
– production downtime.
Cabotage insurance – the size of the guaranteed amount
What requirements must a carrier carrying out a cabotage operation fulfil with regard to liability insurance in Germany? This is specified in § 7a of the Güterkraftverkehrsgesetz (GüKG) Act. According to the regulations, the guarantee amount may not be lower than €600,000 for one and €1.2 million for all events during the insurance period.
The advantage is that the guarantee amount applies only to transportations carried out with vehicles of more than 3.5 tons. It is important for Polish carriers that operator’s liability insurance (OCP) is compulsory (§ 7a (1) GüKG) and that the certificate must be carried by the driver and presented at the request of the German control authorities (§ 7a (4)).
Insurance exclusions according to German regulations
We know from experience with Polish insurance policies that there are many clauses excluding the insurer’s liability and even the lack of the carrier’s stamp on the CMR waybill may result in the lack of compensation. The German legislator regulated it differently.
The insurance referred to in § 7a (1) of the GüKG must cover the liability of the carrier as set out in the provisions of the Fourth Book of the German Commercial Code (HGB) and contains an exhaustive catalogue of exclusions. This means that apart from the exclusions expressly mentioned in the Act, the insurer cannot introduce its own.
According to § 7a (3) of the GüKG, only claims for the following damages can be excluded from insurance:
– committed intentionally by the operator or his agents,
– caused by natural disasters, resulting from nuclear energy, war or civil war, civil disturbances, strikes, lockouts, acts of terrorism, and decisions of authorities or institutions, and resulting from the confiscation of goods by a competent authority,
– generated in shipments such as precious metals, precious stones, jewels, cash, securities, seals, documents and certificates concerning them.
Exclusions from non-German policies may cause problems
Unfortunately, in many non-German insurance policies, there are exclusions going beyond those specified in the German Act and this gives rise to a lot of disputes. This is because the insurance coverage is often much smaller than the liability under German law. This gives rise to the risk that Polish insurers will not cover the damage for which the carriers are responsible.
To be on the safe side, in order to avoid such situations, it must be checked in each case whether the cabotage insurance conditions in Germany cover the carrier’s liability in accordance with the provisions of the German Commercial Code (HGB) governing the contract of carriage and § 7a of the German Road Freight Transport Law (GüKG) setting out the permissible exclusions.
One solution to prevent cabotage restrictions is to establish a company in Germany. Another advantage is the fact that German insurance is often much cheaper than in Poland and does not contain so many clauses excluding the liability of the insurer.