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'''Germany'''
'''German Federal Supreme Court – Assessment of Damages under the Convention on the Contract for the International Carriage of Goods by Road (‘CMR’): Date of Judgment: 30 September 2010'''
'''CMR TRANSPORT: WILFUL MISCONDUCT: ASSESSMENT OF DAMAGES'''
'''Summary'''
'''Where, in the context of the international carriage of goods by road, 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
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.
Fn 2
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…….
