In daily practice, it happens time and again that truck drivers “blindly” sign the CMR consignment note or a loading list when taking over a load, without checking whether the goods listed have actually been loaded completely onto the truck. There are many reasons for this, such as lack of cooperation between the loading staff and the driver, lack of language skills or the driver’s own comfort. If, on delivery, it turns out that some of the goods listed in the consignment note or loading list are missing, the carrier is usually held liable.
The Federal Supreme Court (Bundesgerichtshof) judgment
The carrier was contracted to transport a large number of packages, including a package of carboplatin with a goods value of down 78,000 EUR. The driver was in the cab of the truck during the loading process. At the end of the loading process, the driver signed the loading list presented to him, which included a package of carboplatin, with the words “Above shipment received”. The driver locked the truck, which had been open until then, and started the journey. When the truck arrived at the unloading point, the package of carboplatin was missing.
Judgment of the German Federal Supreme Court of 22.05.2014 (case number I ZR 109/13): According to Art. 17(1) CMR, the carrier is liable for the loss of the goods if the loss occurs between the time of taking over the goods and the time of delivery. The driver had already taken over the goods when he went to the office with the warehouse staff. At that moment, the driver was in a position to protect the goods from damage by closing the hold.
The carrier cannot successfully invoke the presumption of proof under Art. 9 (2) CMR. According to this provision, the number of packages and their marks and numbers are presumed to correspond to the information given in the consignment note, unless the contrary is proved, unless the consignment note contains a justified reservation by the carrier. However, this presumption of proof applies only if the consignment note is in conformity with the provisions of Articles 5 and 6 of the CMR. If, as in the present case, neither a consignment note nor a waybill has been issued, proof of the number of consignments delivered may, in principle, also be furnished by a receipt signed by the carrier or his driver.
If the driver signs the receipt without checking the number of items, he will be acting in bad faith if he later claims that the receipt was issued “blindly”. Even if the receipt was signed without being checked, it creates a rebuttable presumption that the package of carboplatin was accepted.
The Federal Supreme Court also held that the carrier was fully liable for the damage under Art. 29 CMR. The accusation of recklessness is justified because checking the loaded goods and locking the trailer after the driver has finished loading are elementary precautions against loss of goods.
Consequences for practice
In order to avoid liability under Art. 29 CMR, it is imperative that the number (and condition) of the loaded goods be checked by the driver during loading. If the check is refused, the driver must note this in the consignment note, the loading list or the acceptance certificate. In order to avoid liability risks, the carrier is obliged to encourage the driver (or subcontractor) to take appropriate control measures.
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