The shipper may expect the carrier to park vehicles only on protected car park facilities. It’s his right as a shipper. So, the haulier accepts the booking, then starts the route and then suddenly realizes that there are no such parking places on the way. He takes the break on the standard car park then the shipment is stolen. Bad luck? Definitely! But is it gross negligence as well?
To find out, I have taken a look at the case-law of the German courts and if you are a freight forwarder or carrier, this text is just right for you!
What happened in Belgium?
A German carrier received an order for the transport of both high-value and theft-sensitive goods from Germany to France. He had been given special safety instructions, which allowed him to park the vehicle only on CCTV-surveillance parking facilities. But there were no security car parks on route. The truck was left at the standard car park somewhere in Belgium. Late at night, the whole shipment had just vanished into thin air.
How did the shipper see it?
The shipper found the carrier guilty of gross negligence because he didn’t keep the safety requirements.
How did the carrier see it?
The carrier rejected all these allegations. Indeed, the vehicle wasn’t parked in a proper car park and what of it? Firstly, in his mind, safety instructions were entirely incompatible with German law. Secondly, the driver parked the truck right under the lamp. Thirdly, in the whole neighbourhood, there were no CCTV-surveillance parking facilities.
Before we move on to that point, what are your impressions? Is this a poor shipper who had been sacked due to the carrier’s ignorance? Or maybe a poor carrier for which there was no safe place for having a break? The cold-blooded shipper demands him to pay compensation over the 8,33 SDR per kilogram limits? It is your last chance to guess what the Court said!
What did the Court say?
The case was being processed by The Bremen Regional Court. It was all about whether we were dealing with gross negligence or not. The Court found the carrier guilty of gross negligence (Article 29 of the CMR Convention).
- Firstly, the carrier’s failure to fulfil his obligations was the root cause of the loss occurrence.
- Secondly, the haulier did not prove that there were no proper parking facilities on the route; he just claimed this. Words do not create a proof, and they can also not replace it.
- Thirdly, the haulier was obliged to follow the safety instructions, which he totally ignored. Such requirements were not something unusual and did not put him at an unreasonable disadvantage. The Court stated that the damage was caused by the reckless behaviour of the carrier, acting with the full awareness of the high possibility of theft. Therefore, the Court ordered him to pay compensation without being able to invoke his liability limitation according to Article 23 of the CMR Convention.
These practices are the market standard. They were already subject to proceedings by the German courts, including the Federal Court of Justice, and that they were not found to be inappropriate with German transportation law. Moreover, according to German case-law, intentional violation of security obligations may constitute negligence on the part of the carrier, similar to default or intent, so the matter is serious!
Is it only a matter of “Ordnung muss sein”?*
But wait a minute! Why is it gross negligence? Is this typical case of German “Ordnung muss sein”? What was the haulier supposed to do?
“Ordnung muss sein” and “Dura lex sed lex”** as well!
The haulier should reject the booking and make an offer with alternative security practices, for instance, second driver, etc. Indeed, but it is locking the stable door after the horse has bolted. If there were actually no suitable parking facilities, the haulier could not ignore the instructions because it seemed impossible to him. He should get further instructions on how to proceed, not act on his own.
One should not ignore the safety instructions. The essential principle in transportation is transport planning. Transport must be planned in such a way, that guidelines that had been given are possible to perform. If this is impossible or hardly achievable, then you should not assume that nothing will happen. Always remember:
“They’re funny things, accidents. You never have them till you’re having them.”
/Winnie the Pooh/
The German Court rightly indicated that in such circumstances the transportation booking should be cancelled and propositions should be submitted. If there are any difficulties or unexpected events, contact the shipper and get instructions on how to proceed. Improvisation and acting on your own is the worst solution.
* Ordnung muss sein – There must be order. German proverb.
** Dura lex, sed lex – It is harsh, but it is the law. A summary of the statement of the prominent Roman lawyer Ulpian.