Federal Court of Justice Reported to Have Clarified the Characteristic of “Carelessness” in Transport Law - Germany
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The Federal Court of Justice (BGH), with its decision of 25 March 2004 (I ZR 205/01), is reported to have clarified the characteristic of "carelessness" of a freight carrier.
The measures concerning limitations of liability provided for in a shipping contract may not apply under certain circumstances, provided that the damage incurred has been intentionally or carelessly caused and in the knowledge that such damage could occur.
In the case before the BGH, the claimant brought claims against a freight forwarding company for the loss of the commodities that were to be transported. The commodities should have been delivered by a third party contractor of the transporting company. However, in the course of the various transport routes, the property is said to have gone missing and it can no longer be determined where this occurred.
According to the opinion of the BGH, "carelessness" as defined by the Commercial Code first of all requires a very serious breach of duties. Such a breach has occurred inter alia, if the freight carrier blatantly disregards the contractual partner’s security interests.
The equally necessary requirement for awareness of the occurrence of possible damage would not, according to the view of the BGH, be fulfilled merely by the presence of the characteristic of carelessness. Moreover, the content and circumstances of this careless behaviour are to be considered. In particular, the principles derived from experiences and the typical course of events should be taken into account.
In the present case, the Court took these principles for granted. Thus, the BGH commented that if the company organisation of the freight carrier does not consistently provide for the control of incoming and outgoing goods when handling the freight, the allegation of "carelessness" is ultimately justified.
Transport law is becoming increasingly important due to consistently increasing transportation numbers. A challenge that transport law faces is that it already consists in abundance of relevant statutory provisions, which in addition to national standards and agreements also include international provisions. It is therefore advisable to obtain expert legal advice from a lawyer immediately when and - if possible - even before difficulties arise.
ABOUT THE AUTHOR: GRP Rainer LLP
GRP Rainer LLP is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices in Cologne, Berlin, Bonn, Dusseldorf, Essen, Frankfurt, Hamburg, Hannover, Munich, Stuttgart, Bremen, Nuremberg and London UK.
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
In the case before the BGH, the claimant brought claims against a freight forwarding company for the loss of the commodities that were to be transported. The commodities should have been delivered by a third party contractor of the transporting company. However, in the course of the various transport routes, the property is said to have gone missing and it can no longer be determined where this occurred.
According to the opinion of the BGH, "carelessness" as defined by the Commercial Code first of all requires a very serious breach of duties. Such a breach has occurred inter alia, if the freight carrier blatantly disregards the contractual partner’s security interests.
The equally necessary requirement for awareness of the occurrence of possible damage would not, according to the view of the BGH, be fulfilled merely by the presence of the characteristic of carelessness. Moreover, the content and circumstances of this careless behaviour are to be considered. In particular, the principles derived from experiences and the typical course of events should be taken into account.
In the present case, the Court took these principles for granted. Thus, the BGH commented that if the company organisation of the freight carrier does not consistently provide for the control of incoming and outgoing goods when handling the freight, the allegation of "carelessness" is ultimately justified.
Transport law is becoming increasingly important due to consistently increasing transportation numbers. A challenge that transport law faces is that it already consists in abundance of relevant statutory provisions, which in addition to national standards and agreements also include international provisions. It is therefore advisable to obtain expert legal advice from a lawyer immediately when and - if possible - even before difficulties arise.
ABOUT THE AUTHOR: GRP Rainer LLP
GRP Rainer LLP is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices in Cologne, Berlin, Bonn, Dusseldorf, Essen, Frankfurt, Hamburg, Hannover, Munich, Stuttgart, Bremen, Nuremberg and London UK.
Copyright GRP Rainer LLP
More information about GRP Rainer LLP
View all articles published by GRP Rainer LLP
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
