The court in Stuttgart ruled on the case of the carrier who had commissioned the transport to another company. A driver working for the subcontractor left the semi-trailer with the goods on an unguarded yard. The goods were stolen together with the trailer and the transport company subcontracting the transport will answer to the customer.
In order to accuse the carrier of acts of recklessness resulting in the loss of or damage to property during transport (in accordance with Section 435 of the German Commercial Code (HGB)), an exceptionally gross breach of duty must be involved. This is undoubtedly a breach of the transport contract and, in this case, a total disregard for the safety interests of the principal. This was decided by the District Court in Stuttgart in proceedings against the carrier who had commissioned the transport to a subcontractor. An employee of the transport company left the refrigerated trailer with the goods on an unguarded parking lot to which third parties had access and from which it was stolen.
Although, under German law, the mere abandonment of a semi-trailer does not constitute recklessness (within the meaning of the aforementioned provision of the Commercial Code), the judges nevertheless pointed out that a driver working for a subcontractor acted contrary to the instructions. According to them, vehicles should be parked on the company premises at the end of the work/service. Any exceptions to this rule are only permitted in consultation with management. Proceeding against the instructions was classified by the court as reckless behaviour.
In accordance with the judgment of the Stuttgart District Court, the ordering carrier could not rely on the limitation of liability in paragraph 435 of the HGB and will have to pay the customer for the losses incurred by the driver of the subcontractor. The carrier appealed against the judgment, but the appeal was rejected.
How could the carrier protect itself?
The carrier bears full responsibility for possible negligence of his employees or other persons whom he uses to perform the carriage – as follows from art. 3 of the CMR (Contract of International Carriage of Goods by Road). Therefore, it is worth extending the insurance policy for civil liability of road transport operators (OCPD) to include the clause of subcontractors.
What should be considered when the carrier subcontracts transport?
We should, first of all, remember the obligations imposed on the carrier by the subcontractor clause. This is because the extension of protection resulting from the subcontractor clause is not unconditional, because the insurer imposes certain obligations on the carrier, which it makes the granting of insurance cover dependent on,” emphasizes Adam Pająk, President of the insurance company Transbrokers.eu.
The insured is obliged to exercise due diligence in the selection of subcontractors and other carriers. So he should choose those who have:
– all necessary licences to carry out such activities,
– means of transport for the proper performance of transport activities and suitable for the transported cargo,
– road carrier’s civil liability insurance policy: with full insurance coverage – protection against theft and robbery, moreover, the transported type of goods, e.g. ADR, ATP, etc., cannot be excluded from insurance coverage and with a guaranteed amount corresponding to the value of property entrusted for transport.
If the carrier wants to subcontract transport, he should first of all pay attention to the type of order – whether it is a transport order or a forwarding order. Secondly, remember that in such a situation, the transport company issues a new CMR letter to its subcontractor. Therefore, you should check whether the original order does not prohibit this, which sometimes happens. Thirdly, the transport company subcontracting the transport is responsible for the subcontractor’s actions, as for its own,” explains Adam Pająk.
“Therefore, the scope of the subcontractor’s policy should not be narrower than the scope of the carrier’s own third party liability policy, along with its extension to gross negligence,” the expert stresses.
In addition, it is necessary to verify the subcontractor,” advises the president of Transbrokers.eu.
Verification of the carrier
The verification of the transport company is not the same in all European countries, however, it is quite similar. In Poland, it should be based on the following documents provided by the carrier:
– entry in EDG / KRS (business activity register / national court register), – NIP (Tax ID No), – REGON (Statistical ID No), – all transport licenses held, – an insurance policy for civil liability of road transport operators (OCPD). If the carrier operates on the basis of an entry in the Business Activity Register, we verify it in the Central Business Activity Register at least once a year. If the company operates on the basis of an entry in the National Court Register, the verification is carried out on the website of the Ministry of Justice – also at least once a year. In addition, we confirm the NIP on the website of the Ministry of Finance and REGON on the website of the Central Statistical Office. On the GITD website, we check the carrier’s license.
All the above-mentioned documents must be printed out (in the case of a carrier’s licence – save the print screen) and kept. In addition, we confirm by e-mail or telephone with the insurer of the company being checked whether its policy is active and the premium has been paid. It is also worth verifying the content of the road transport operator’s liability insurance policy (OCPD).
The carrier should remember that if he applies for compensation from the OCPD insurance under the Clause of the release of goods to an unauthorised person, then the insurer will require him to prove that he actually verified his subcontractor,” explains Adam Pająk.
In addition to verifying the data, it is essential to specify the minimum insurance coverage of the OCPD policy of the transport company to which we outsource transport. This coverage should be chosen according to needs, but the President of Transbrokers.eu suggests that the minimum parameters should be as follows:
– non-reducible guarantee amount (per each event), – guarantee amount not lower than EUR 100,000 per each event, territorial coverage in accordance with the contracted transport routes, – type of property covered in accordance with the contract, – type of insurance extended by at least: robbery clause, parking clause, subcontractor liability clause, loading (unloading) and stowage clause, delivery delay clause, cargo securing operation clause, cargo sorting clause, CMR clause, paramount clause, immigrant damage clause with a sufficiently high limit of liability of the insurer.
Determination of the person authorised to accept the consignment
If the verification of the carrier was positive, the carrier may be commissioned to perform a transport service.
However, before ordering transport, please remember to indicate the person authorised to accept the consignment by name in the transport document together with the ID card number and vehicle registration number,” Adam Pająk advises.