Germany CMR Damages
German Federal Supreme Court – Assessment of Damages under the Convention on the Contract for International Carriage of Goods by Road (‘CMR’): Date of Judgment: 30 September 2010
CMR TRANSPORT: WILFUL MISCONDUCT: ASSESSMENT OF DAMAGES
the loss is caused by wilful misconduct on the part of the carrier, the claimant has the option of computing his claim for damages either on the basis of the relevant domestic law or of claiming the market price according to Art. 23 para. 1 and 2 CMR. In the latter case, the limitation of 8.33 SDR/kg according to Art. 23 para. 3 CMR continues to apply. (See footnotes for the text of these Articles)
Note contributed by Daja H. Böhlhoff, LLM (Maritime Law), Solicitor of German law firm Blaum Dettmers Rabstein and International Contributor to DMC’s CaseNotes
The shipper instructed the defendant carrier to arrange for the road transportation of 3,384 laptop computers (total weight: 7,979 kg) from Regensburg, Germany to Cambiago, Italy. The shipper’s “Security Guidelines for Road Transportation” were incorporated into the contract of carriage and stipulated that the driver had to spend the rest periods at secure, lighted and guarded parking sites and that the vehicle was not be left unattended at any time. In addition, the carrier warranted that the driver would drive from the shipper’s works directly to the carrier’s premises in Bozen, where he would spend the rest period, and then drive afterwards directly to the consignee.
After the driver had taken over the goods, he drove to the carrier’s premises from where he left the next morning. Three hours later he stopped at an unguarded service area, locked the truck, went to the rest room and had a coffee at the restaurant. When he wanted to continue his journey, the truck and trailer had disappeared. The plaintiff claimed damages in the amount of EUR 990,929.56, arguing that this amount constituted the market price of the stolen goods according to Art. 23 para. 1 and 2 CMR.
The first and second instance courts ruled in favour of the plaintiff that the loss was caused by wilful misconduct pursuant to Art. 29 CMR on the part of the carrier. Because none of the CMR limitations and exclusions applied, they ruled that the plaintiff was entitled to compensation on the basis of the market price.
The Federal Supreme Court overruled the first and second instance judgments in so far as the assessment of compensation was concerned. The judges agreed that the loss was caused by wilful misconduct pursuant to Art. 29 CMR. They held, however, that if the claimant chose to rely on Art. 29 CMR and avoid all limitations of liability, the amount of compensation would have to be calculated according to the provisions of the applicable domestic law and the losses substantiated in detail. The claimant could not invoke Art. 23 CMR to calculate the amount of compensation on the basis of the market price and apply Art. 29 CMR at the same time.
Art. 29 CMR rendered all CMR provisions limiting the carrier’s liability inapplicable; these provisions included Art. 23 CMR in its entirety, including the references to the market price as basis of compensation. If, however, the claimant chose to rely on Art. 23 para. 1 and 2 CMR to calculate the amount of compensation with reference to the market price, and thus not to rely on Art. 29 CMR, Art. 23 CMR would in turn have to be applied in its entirety including Art. 23 para. 3 CMR, which limits the due compensation to 8.33 SDR per kilogram. As a consequence, the carrier was entitled to limit its liability to an amount of EUR 77,563.40. The case was referred back to the appellate court for re-assessment of the scope of damages.
The judgment is groundbreaking in so far as it is the first Supreme Court judgment to clarify the options available to the claimant in a case of wilful misconduct, a question that had been the subject of conflicting judgments and discussions in legal literature for a long time. The claimant will now have to assess carefully whether it is more advantageous to present a case of wilful misconduct, avoid the limitation of 8.33 SDR and substantiate the losses suffered in detail as prescribed by domestic law, or opt for the market price – which can in many instances be higher and easier to substantiate that the losses actually suffered – and accept the limitation per kilo in return.
Article 23 1. When, under the provisions of this Convention, a carrier is liable for compensation in respect of total or partial loss of goods, such compensation shall be calculated by reference to the value of the goods at the place and time at which they were accepted for carriage. 2. The value of the goods shall be fixed according to the commodity exchange price or, if there is no such price, according to the current market price or, if there is no commodity exchange price or current market price, by reference to normal value of goods of the same kind and quality. 3. Compensation shall not, however, exceed 25 francs per kilogram of gross weight short. "Franc" means the gold franc weighing 10/31 of a gramme and being of millesimal fineness 900. 4. In addition, the carriage charges, Customs duties and other charges incurred in respect of the carriage of the goods shall be refunded in full in case of total loss and in proportion to the loss sustained in case of partial loss, but no further damage shall be payable. 5. In the case of delay if the claimant proves that damage has resulted therefrom the carrier shall pay compensation for such damage not exceeding the carriage charges. 6. Higher compensation may only be claimed where the value of the goods or a special interest in delivery has been declared in accordance with articles 24 and 26.
Article 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…….