CMR Art.29 and Contributory Negligence

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DMC/SandT/13/04

Germany

German Federal Supreme Court: Date of Judgement: 13 June 2012

CMR TRANSPORT: APPLICATION OF ART. 29 CMR: BURDEN OF PROOF: REDUCTION OF UNLIMITED LIABILITY DUE TO CONTRIBUTORY NEGLIGENCE ON THE PART OF THE SENDER IF THE CARRIER IS NOT NOTIFIED OF AN UNEXPECTEDLY HIGH VALUE OF THE TRANSPORT GOODS

Summary

The unlimited liability of the carrier according to Art. 29 CMR(fn.1) is reduced in cases of contributory negligence on the part of the sender. This principle applies especially if the carrier was not made aware of an extremely and unexpectedly high value of the goods when the contract of carriage was concluded.

Note contributed by Daja H. Böhlhoff, , LLM (Maritime Law), Solicitor of German law firm Blaum Dettmers Rabstein and International Contributor to DMC’s CaseNotes

Background

The plaintiff cargo underwriter claimed compensation from the defendant carrier for the theft of six bottles of wine with a total value of EUR 15,300.00. The carrier agreed to transport a crate containing eight bottles of wine from France to Germany. When the crate was picked up by the driver, he was handed over a delivery note stating a total insured value of EUR 20,400.00. After delivery to the consignee, the crate was found to have been opened from the bottom and six bottles were missing. The appeal court overruled the first instance judgment which had held, in favour of the plaintiffs, that the defendant was liable to compensate the plaintiff for the full value of the goods. The appeal court found that, by reason of the considerable contributory negligence on the part of the sender in not notifying the carrier in advance of the extraordinary value of the goods, the compensation due from the carrier should be reduced to only 50% of the value of the missing bottles.

Judgment

The Federal Supreme Court confirmed the appeal court judgment. It held that, in principle, the plaintiffs had the full burden of proving that the loss was caused by wilful misconduct on the part of the carrier. But as the facts presented by the plaintiffs indicated theft of the goods on the part of the carrier or its servants, the plaintiffs had established a prima facie case of wilful misconduct in accordance with art. 29 CMR, which the carrier had been unable to rebut by proving the exact circumstances of the loss.

The Federal Supreme Court further confirmed that the unlimited liability of the carrier was to be reduced by 50 % because of contributory negligence on the part of the sender. The carrier had not been notified of the unexpectedly high value of the bottles and had thus been deprived of the options of either rejecting the carriage altogether or adjusting the freight rate and preparing appropriate security measures to ensure a safe transport. The carrier had only learnt of the extremely high value of the bottles when they were handed over to the driver which was not timely enough for the carrier to react appropriately. Even though the lack of advance notification could have resulted in a full rejection of the claim, the Supreme Court considered, in favour of the plaintiffs, that the carrier should bear some liability, given the fact that it had been, at least in theory, possible for the driver to seek instructions when he learnt of the excessive value at pick-up.

Comment

The judgment is the most recent confirmation of the tendency of German courts to introduce the concept of contributory negligence into CMR cases, if the carrier was not notified of an extraordinary and unexpectedly high value of the goods at the time the contract of carriage was concluded. These principles were originally developed in connection with claims involving the transport of valuable parcels subject to German transport law, which explicitly permits a reduction in the claim amount by reason of contributory negligence. Although it may be argued that the CMR Convention does not permit the application of such domestic law principles and leaves no room to consider contributory negligence outside the scope of Art.17.5 CMR(fn.2), the judgment underlines that it is now an established rule in German jurisprudence to apply the domestic concept of contributory negligence also in the context of international conventions.

Fn.1 Art.29 1. The carrier shall not be entitled to avail himself of the provisions of this chapter which exclude or limit his liability or which shift the burden of proof if the damage was caused by his wilful misconduct or by such default on his part as, in accordance with the law of the court or tribunal seised of the case, is considered as equivalent to wilful misconduct. 2. The same provision shall apply if the wilful misconduct or default is committed by the agents or servants of the carrier or by any other persons of whose services he makes use for the performance of the carriage, when such agents, servants or other persons are acting within the scope of their employment. Furthermore, in such a case such agents, servants or other persons shall not be entitled to avail themselves, with regard to their personal liability, of the provisions of this chapter referred to in paragraph 1.

Fn.2 Art.17(5) 5. Where under this article the carrier is not under any liability in respect some of the factors causing the loss, damage or delay, he shall only be liable the extent that those factors for which he is liable under this article have contributed to the loss, damage or delay.