Loss and theft of cargo
The most common case of cargo loss during transport is cargo theft. As Germany is a central European transit country for international road transport, numerous criminal gangs have specialised in stealing goods from unmonitored car parks and depots. These thefts pose a significant liability risk for hauliers, as German courts, in accordance with the case law of the Federal Court of Justice, often find qualified fault without limitation of liability.
In such cases, however, Polish liability insurers will only pay the maximum liability amounts under Article 23(3) of the CMR Convention. The defence against a claim is therefore in most cases aimed at proving that there is no case of qualified fault, so that the liability is subject to the limitation of liability under Article 23(3) of the CMR Convention.
Typical damage caused by delay is when production in a factory comes to a standstill due to a late delivery, or when work on a construction site cannot be carried out due to a lack of materials. Since industry has virtually no raw materials or auxiliary materials in stock, its business model is based on just-in-time delivery. Hauliers must then contractually commit to delivering the goods by a fixed date. Risks such as unforeseeable transport disruptions due to traffic jams or bad weather make it difficult to deliver on time. Failure to meet the agreed delivery date can have serious consequences. Because of the delay, shippers do not pay the agreed freight and often claim damages in excess of the agreed freight costs. In most cases, the aim of defending a claim is to prove that the shipper is not entitled to compensation, or not to the amount claimed.
Damage during transport
When goods are damaged in transit, there is often a dispute as to who is liable for the damage. The four most common causes of transport damage are:
Accidents during handling
During transshipment, i.e. when lorries are loaded and unloaded, accidents can occur that cause damage to the cargo. The question is who was responsible for loading and unloading and whether the damage could have been avoided by proper loading and unloading.
Certain goods, such as food or medicines, must be kept at a certain temperature during transport. If this temperature is not maintained, the goods may be damaged and become unusable. The first question to ask is what temperature, if any, was specified in the contract of carriage and what temperature the goods were at when the carrier took them over. If the temperature specified in the contract was not maintained during transport, the carrier is liable for the resulting damage.
Improper load securing
If the load is not properly secured, it may slip or tip over during transport, causing damage. Legal disputes often arise over who was responsible for securing the load. In general, the consignor is responsible for ensuring that the goods do not get damaged during transport (securing the load). The truck driver, on the other hand, is responsible for ensuring that the loaded vehicle can be driven safely on the road (safe loading). In the event of damage, it must be clarified who actually carried out the load securing and whether and to what extent other persons are liable.
Improper packaging can cause damage to goods during transport. For example, packaging that is too weak may not adequately protect the contents. Improper packaging can result in the carrier being completely exonerated. This often has to be proven by an expert in court.
If a Polish carrier is sued in Germany, it is important to defend the claim effectively and, if possible, prove that there is no or only limited liability. If the transport in which the damage occurred was carried out by a subcontractor, it is important to properly inform the subcontractor of the legal dispute and to claim compensation from the subcontractor.
Grau Rechtsanwälte PartGmbB represents transport and forwarding companies in all judicial and extrajudicial proceedings related to road transport, in administrative offence proceedings and offers effective debt collection.