30.11.2018

Carrier’s liability before German courts for transported goods being damaged by refugees entering the truck

Liability lawsuits account for a considerable proportion of court proceedings in Germany in the field of transport law. German law and the Convention on the contract for the international carriage of goods by road (hereinafter referred to as CMR) both stipulate that a carrier has a limited liability for proven damage to the goods in his custody (based on the weight of the consignment). Nonetheless, in the case of so-called qualified fault, the carrier may also owe full compensation for the damage or he may be exempted from liability by providing proof of discharge. In practice, the insurance of the principal usually pays for the damage, whereby the claim for damages of the principal against the carrier is transferred to the insurance by operation of law. If the carrier (or his insurance company) refuses to pay, the matter is regularly brought to court. The jurisdiction of the German courts is based either on the provisions of the transport contract or on the law.

An interesting case concerning the carrier’s liability for damage to cargo caused by refugees travelling unrecognized in the semi-trailer was the last one I had in my practice as a lawyer. In December 2015, a German client commissioned a Polish transport company to carry out a transport from Germany to Great Britain. The drivers of the transport company drove to the Eurotunnel after being loaded in Germany. During a safety check in front of the Eurotunnel, it was established that several refugees were staying in the trailer. These were taken out of the vehicle by the French police, then the journey to Great Britain was continued and the consignment unloaded. An examination of the cargo revealed damage to the load. The transport liability insurance of the client paid for the damage and then claimed damages before a German court against the Polish carrier represented by me on the basis of an assigned right. The Koblenz Regional Court, which had jursidiction, dismissed the action brought by Verkehrshaftversicherung.

In the present case, the liability of the Polish carrier was governed by the provisions of CMR. The provisions of the CMR apply to any contract for the carriage of goods by road in vehicles against payment if the place of taking over of the goods and the place designated for delivery are situated in two different states, at least one of which is a contracting state. In the event of a dispute, the goods should be transported from Germany to Great Britain by truck, both of which are contracting states to the CMR.

According to the provisions of the CMR, the carrier is liable for damage to the goods if the loss occurs between the time when the goods are taken over and the time of their delivery. In the present case, it was undisputed that the goods had been accepted undamaged and had only been damaged in the course of the transport by the intruding refugees.

However, the Polish carrier was relieved of liability since, in the opinion of the court, the damage was caused by circumstances which the carrier could not avoid and the consequences of which he could not avert. According to Bundesgerichtshof’s case law (German supreme court), unavoidability within the meaning of the CMR can only be assumed if the carrier sets forth and proves that the damage could not have been avoided even if the carrier had exercised the utmost care possible and reasonable. It is therefore decisive whether the damage could not have been avoided even by an „ideal carrier“. The court considered this condition fulfilled. The taking of evidence (questioning of the two drivers as witnesses) showed that the refugees most probably only entered the truck during a dust-induced interruption of the journey in the area between the Calais motorway exit and the Eurotunnel during a mass rush of refugees by slitting the tarpaulin. The possibility for the drivers to prevent the intrusion of the refugees in this situation was not apparent. Before entering the Eurotunnel, the drivers also duly stopped at a checkpoint where the intruding refugees were discovered and retrieved from the vehicle. Even from an ideal carrier no more could have been demanded under those circumstances in the opinion of the court. The fact that a truck with tarpaulins was used instead of a truck with a box or box body also did not stand in the way of exemption from liability. Because if – as here – a company has just been commissioned with the transport, which only has trucks without box bodies and if a transport with such a truck is also planned in the order, the purchase and use of a truck with box body cannot be demanded from an ideal carrier for a transport to Great Britain.

It should be noted that German courts have dealt with the same problem in two other cases. In one case the Landgericht Hamburg (Regional Court) denied the carrier’s liability for the intrusion, in the other case the Oberlandesgericht Köln (Higher Regional Court) affirmed liability. The individual case is therefore decisive.

In the present case, it was decisive that the court was able to exclude other ways in which the refugees could have entered the truck. The Polish carrier had already introduced training courses for its drivers in 2013, based on the guidelines of the border and immigration authorities of the United Kingdom. Drivers were also required to keep a checklist each time the truck was parked, stating that the vehicle had been checked for signs of unauthorised intrusion before it was driven off and after each break. This checklist could then be presented to the court and its accuracy certified by the drivers. In addition, the drivers credibly stated that although they had taken a short break from changing drivers during the transport, they had taken great care to ensure that no one approached the truck.

The present case shows that the requirements for the carrier’s release from liability are strict, but that a defence is not impossible. However, it is indispensable to do everything necessary and possible in advance of the transport to avoid the damage and to record these measures as far as possible, for example by means of a checklist. It is also imperative that the drivers are highly vigilant and that the transported goods are kept under constant surveillance. An overnight stay should also only take place in supervised car parks. This applies not only to refugee cases, but also to other cases that could result in damage (such as theft).

By the way, Verkehrshaftversicherung filed an appeal against the decision of the Regional Court of Koblenz. However, this was rejected by the Court of Appeal, which fully supported my argumentation and that of the court of first instance.

Contact person: Damian Wypior, German Attorney-at-Law