a) In freight liability litigation, the question of who is ultimately entitled to compensation is irrelevant (following BGH, judgment of 20 April 1989 – I ZR 154/87, TranspR 1989, 413, 414 [juris nr. 16]).
b) The question of whether the requirements of § 435 HGB are met must also be examined even if only a basic judgment is issued under § 304 ZPO.
c) The clause in the general terms and conditions of business of a consignor according to which loaded vehicles are to be monitored during parking or parked where sufficient safety is ensured does not impose on the carrier any duties of care beyond the legal requirements.
d) No warning obligation for the consignor results from § 7a section 2 sentence 1 GüKG which may lead to a reduction of the claim for damages according to § 425 section 2 HGB, § 254 BGB.
e) If, in the absence of a qualified fault attributable to him within the meaning of § 435 HGB, the carrier’s liability is limited to the maximum amount of liability pursuant to § 431 HGB, contributory negligence on the part of the sender or consignee shall only affect his liability if his share of liability in relation to the total damage is less than the amount of liability under § 431 HGB.
f) The issuance of a basic judgement in accordance with § 304 of the German Code of Civil Procedure (ZPO) can only be considered if it is established that contributory negligence does not lead to a complete exclusion of liability (following BGH, judgement of 14 October 2010 – I ZR 212/08, NJW 2011, 2138 marginal no. 35 – Mega-Kasten-Gewinnspiel, mwN).
g) On the conditions under which, in the case of the carrier’s unlimited liability under section 435 of the German Commercial Code (HGB), the issuance of a fundamental judgment may be considered.
BGH, Urt. v. 23.7.2020 – 1 ZR 119/19 – OLG Celle LG Verden
a) Delay damage within the meaning of Art. 23 Para. 5 CMR, which coincides with an additional damage to goods within the meaning of Art. 23 Para. 1 CMR, without there being a causal connection between the two damages, is cumulative in addition to the claim for damages eligible for replacement due to damage or loss of the transported goods.
b) The debtor of a claim whose total creditorship exists in accordance with Section 428 of the German Civil Code (BGB) can in principle also offset against a counterclaim to which he is entitled only from one or one of the joint creditors. The necessary similarity between the claim of the joint creditors and the claim of the debtor against one of the joint creditors is missing, however, if the creditor against whom the counterclaim of the debtor is directed can demand performance either from himself or from a third party and he has not yet exercised his or her right to vote in accordance with Section 263 (1) of the German Civil Code (BGB).
c) Within the scope of the CMR, insofar as the consignor as well as the recipient is entitled to claim under Art a total belief, whereby the sender can optionally request performance to himself or to the recipient.
BGH, Urt. v. 19.9.2019 – I ZR 64/18
a) The provision of Art. 31 Para. 2 CMR, which establishes a suspension of lis pendens and the objection of legal force for the same disputes in proceedings between the same parties for the same matter, does not regulate the conditions under which a legal dispute is suspended with regard to another procedure can be. If the first pending proceedings have not yet ended and the question of the later enforceability of the decision to be taken therein has therefore not yet been clarified, if proceedings are pending before courts of two Member States of the European Union, instead of the action being dismissed as inadmissible, there will be a suspension in corresponding application of Art. 29 para. 1 Brussel-la-VO into consideration.
b) A new action for “the same thing” within the meaning of Art. 31, Paragraph 2, Clause 1 of the CMR is also involved if the pending proceedings are negative declaratory actions and the new proceedings are performance actions and both proceedings are pending before the courts of different member states of the European Union (task BGH, judgment of November 20, 2003 – 1 ZR 294/02, BGHZ 157, 66).
c) Since the CMR, which generally takes precedence over the Brussel-la-VO, does not contain any provision for the suspension of a procedure due to a factual connection with another procedure, Art. 30 Brussel-la-VO can be applied in the scope of the Brussels-la-VO.
d) In the proceedings of the appeal against a suspension decision, which is at the discretion of the court of first instance, the court of appeal may only revoke the decision of the suspension of first instance if there are errors of judgment; it is not authorized to substitute its discretion for the discretion granted to the first court. There is also an error of judgment if the court of first instance has not exercised its discretion..
BGH, Beschl. v. 25.7.2019 – I ZB 82/18
Damage, occasionally caused by a customs inspection, is not excluded from the exclusion of “intervention by a high hand” in the transport insurance.
BGH, Beschl. v. 22.2.2018 – IZ ZR 318/16
= TransportR. 2018, S. 207 ff (m. Anmerkung Riemer)
Claims settlement through insurance brokers
UWG § 3a nF (§ 4 Nr. 11 aF); RDG §§ 2, 3, 5
BGH, Urt. v. 14.1.2016 – I ZR 107/14
Liability of the carrier with the agreed application of the CMR
BGB §§ 164, 167, 242, 254, 280 I; CMR Art. 1, 2, Art. 17 I,
11 und IV lit. a und b, 18 II 1,41; EGBGB Art. 28 IV; HGB §§ 427 I Nr. 1, 452, 452 a; Rom-I-VO Art. 28
BGH, Urt. v. 28.02.2013 – I ZR 180/11
Proof of delivery of the goods to an authorized person
CMR Art. 17 I, 20 I; GG Art. 103 I
BGH, Beschl. v. 6.2.2013 – I ZR 22/12
If a sender of goods has positive knowledge that the consignment given for carriage contains so-called prohibited goods according to the general terms and conditions of the carrier, and if he does not inform the carrier about this before the contract is concluded, this can also be the case in the event of a loss of the consignment in the context of the assessment of the causal contributions lead to a complete exclusion of the liability of the transport company.
BGH, Urt. v. 16.7.2006 – I ZR 245/03