Who is responsible for loading/unloading in Germany pursuant to Article 412 of the Commercial Code?
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After my article on the differences between a freight forwarder and a carrier in German legislation, there were questions from readers about the performance of contracts of carriage. The issue of loading and unloading was particularly important.
To begin with, let me quote Article 412(1) of the HGB (German Commercial Code) and “dissect” it:
“§ 412 Abs. 1 HGB: Verladen und Entladen
Soweit sich aus den Umständen oder der Verkehrssitte nicht etwas anderes ergibt, (hat der Absender das Gut beförderungssicher zu laden, zu stauen und zu befestigen verladen sowie zu entladen). (Der Frachtführer hat für die betriebssichere Verladung zu sorgen).” “§ 412 Abs. 1 HGB: Loading and unloading
If the circumstances and commercial habits do not require otherwise, (then the sender is obliged to load the cargo in a way that ensures transport safety, to arrange and fasten it and to unload it). (The Carrier is obliged to ensure that goods are loaded in accordance with work safety rules)”.
First, let me begin with the sender’s obligation – “(then the sender is obliged to load the cargo in a way that ensures transport safety, to arrange and fasten it and to unload it)” – therefore, according to Article 412(1) of the HGB, it is the sender of the goods, as a rule, who is obliged to load and unload the goods safely and to secure them.
Loading in Germany – carrier’s obligations
Next, the carrier’s obligation is set out in the second sentence of the abovementioned Article 412(1) of the HGB – “(The Carrier is obliged to ensure that goods are loaded in accordance with work safety rules)”. It is, therefore, the responsibility of the carrier to provide a suitable vehicle with appropriate load securing devices (e.g. lashing straps, lashing points) and to ensure that the vehicle is in working order. In addition, the carrier should ensure that loading is carried out in accordance with the permitted dimensions, axle loads and total weight.
It should also be noted here that, as a general rule, the carrier shall not be obliged to check the correct loading of the goods by the sender, but this does not release the carrier from the obligation to act in good faith (Article 242 of the HGB). If the carrier is aware that loading is not carried out correctly, which may result in damage to the goods, he shall immediately inform the sender on the basis of Art. 412(1) and 412(2) of the HGB. If the carrier has informed the sender or the person responsible for the loading of the incorrect loading and the sender has failed to correct the lashing or has ignored the carrier’s remarks, the carrier shall not, however, under Article 427(1), item 3 of the HGB rely on the division of duties regulated in Article 412 of the HGB.
Loading and unloading can be assigned to the carrier
As Article 412(1) of the HGB states: “If circumstances and commercial practices do not require otherwise (…),” the contracting parties may at any time expressly agree that the carrier is obliged to load and unload and to secure the goods. Contractual assignment to the carrier of loading and unloading obligations deviating from Article 412 (1) of the HGB is permissible. It should be noted, however, that according to Article 425 of the HGB, the carrier is also liable for damage to the goods or damage resulting from the delay. To avoid disputes on this subject, the contracting parties should clearly define who is obliged to load and unload and who will be responsible for any damage. In addition, Article 412 of the HGB is without prejudice to ADSp 2017.
Does the question then arise who is responsible for loading the goods in the event of transhipment? If a carrier transports cargo that will then be transshipped to another vehicle, the carrier will be responsible for the transhipment operations and will be liable for inappropriate cargo securing and possible loading errors resulting from the transhipment process.
This Article does not constitute a legal opinion, legal interpretation or opinion.