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Federal Court of Justice reported to have clarified the characteristic of carelessness in transport law

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.

GRP Rainer Lawyers Tax Advisors, Cologne, Berlin, Bonn, Düsseldorf, Essen, Frankfurt, Hamburg, Hanover, Munich, Stuttgart, Bremen, Nuremberg and London explains: 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.

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