German carrier held liable for choosing the wrong parking lot
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If a carrier disregards shipper’s instructions, it is responsible for the stolen goods. Not being able to comply with the client’s guidelines is not a mitigating circumstance, the court ruled.
If a transport order includes instructions that the truck with the transported goods may only stop on the route at monitored parking lots, this must be followed. A carrier is liable for a breach of that instruction if cargo is stolen from a vehicle parked in a parking lot without any surveillance system, as ruled by the national court in Bremen (file number 11 O 169/17).
In the case described by the German transport portal dvz.de, the claimant ordered the defendant to transport textiles from Bremen to France. Attached to the order were safety instructions: “The vehicle can only be parked in secure official service areas, on motorways equipped with a CCTV system, covering the entire parking lot.”
Despite instructions, the driver of the truck carrying the branded clothing, stopped for the night in a Belgian parking lot that was not monitored. During that unlucky night, the cargo was stolen from the trailer.
According to the national court, which ruled in that case, the defendant carrier is liable for infringement of the instructions contained in the transport order. The trader cannot invoke the limitation of liability and must pay full compensation for the losses suffered. Pursuant to Article 29(1) of the CMR Convention, the limitation of the carrier’s liability is a privilege and cannot be exercised by the carrier when the damage was caused intentionally or through its fault. The fact that on the route there were no parking lots meeting customer requirements does not justify a breach of the instructions.
How can a carrier protect itself from such a situation?
Adam Pająk, President of the Management Board of the insurance company Transbrokers.eu, agrees with the judgment. Here is what he says.
It is the absolute duty of the road transport operator to read and follow any instructions contained in the transport order. The carrier must plan the route in such a way that these instructions can be complied with. If, at the planning stage, it already turns out before the start of the transport that this is not possible, then either the carrier will ask that they be changed or that it will be resigned from the order, otherwise a situation like the one considered by the Bremen court may arise.”
In his view, it is also important for the carrier to know how to behave when he encounters difficulties in complying with these guidelines during transport (despite careful planning).
It is crucial not to act on your own,” stresses Adam Pajak.
As he explains, pursuant to Article 14 of the CMR Convention:
- If for any reason the performance of the contract of carriage under the conditions set out in the consignment note is or becomes impossible before the arrival of the goods at the place designated for their delivery, the carrier shall be obliged to request instructions from the person entitled to dispose of the goods in accordance with Article 12.
- However, if circumstances permit the carriage to be performed under conditions different from those provided for in the consignment note, and if the carrier is unable to obtain instructions from the person entitled to dispose of the goods in accordance with Article 12 within a reasonable time, it shall take such measures as appear to it to be in the best interests of the person entitled to dispose of the goods.
This also applies to the obligation to check the weather forecast. The carrier is obliged to monitor it. If it turns out that it poses a threat to the cargo (e.g. strong gusts of wind), then it should take this into account and contact the authorised person in accordance with Article 14 of the CMR Convention,” explains Adam Pająk.
According to the expert, disregarding the weather forecast may result in the carrier’s liability for damages and sometimes even in its behaviour being qualified as gross negligence.
In turn, acting on your own may result in a verdict such as that of the Bremen court. And this is certainly not what any entrepreneur would want,” adds the President of Transbrokers.eu.