1. A consignment that has been handed over to a third party who is not the recipient is lost if it cannot be recovered immediately and can still be delivered to the authorized recipient.
2. Inadequate entry/exit controls justify the accusation of qualified fault.
3. Corresponding fault on the part of a parcel service provider is (already) to be assumed if they do not give a substantiated presentation on their corresponding business organisation.
4. A clause of a parcel service provider, according to which the customer has to point out a value in excess of EUR 5.00 per kg or a particular susceptibility to damage in good time, and if there is no corresponding indication, it should apply that the loss or damage is only due to the missing reference / missing agreement is ineffective according to § 449 HGB.
5. A parcel service provider cannot invoke contributory negligence for failure to declare the value if he does not substantiate that and how he would have proceeded when declaring the value of the shipment if (before) the claimant had stated that the parcel service provider delivered the shipment with knowledge of the value of the goods for transport and would have transported them without further security measures.
6. The objection of contributory negligence wg. A omitted declaration of value is (especially) excluded if employees of a parcel service confirm that the value of a shipment (with medicines) is irrelevant for its acceptance for transport and treatment.
OLG Hamm, Urteil vom 06.10.2022 – I-18 U 166/20
= Transportrecht 4 2023, S. 162 ff
1. A contract for the hoisting of a yacht from the water, its transfer to the storage location and the subsequent storage over the winter is – if the port/shipyard company freely decides how and where the yacht is stored – as a mixed contract, specifically qualify as a freight/storage contract.
2. When assessing liability, the main focus of the service owed is to be taken into account.
3. Conflicting provisions in the general terms and conditions of the port/shipyard operation, according to which tenancy law is to be applied, are ineffective according to §§ 307 Para. 2 No. 2, 305 c) Para. 1 BGB
4. In the event of evidently inadequate storage, the Hafen-Wertbetrieb i.ü. but there is also an obligation to inform, in the event of breach of which the port/security company is liable according to § 280 Para. 1 BGB, should tenancy law apply
5. The statute of limitations for claims against the warehouse keeper only begins when the goods are outsourced, but not when the damage occurs or becomes known.
OLG Schleswig-Holstein, Urteil vom 22.08.2022 – 16 U 114/21
= Transportrecht 5 2023, S. 238 ff
An application according to Section 321 (1) ZPO for supplementing the cost award of a judgment must be submitted separately by each secondary intervener within the period of Section 321 (2) ZPO.
OLG Dresden, Urteil vom 20.07.2022 – 13 U 2080/21
= Transportrecht 6 2023, S. 280 f
1. The (joint) fault of a joint creditor who is not the vicarious agent of the other joint creditor has individual effect according to §§ 429 Paragraph 3, 425 Paragraph 2 BGB.
2. There is no attribution standard (as with the carrier, § 428 HGB) for the relationship between sender and recipient.
3. The claimant must fully prove the quantity and quality of the goods given for transport in accordance with § 286 ZPO. Only with regard to the determination of the amount of damage of goods determined according to their value-forming factors do the simplifications of proof of § 287 ZPO apply, so that an estimate could be made in this respect.
4. Regarding the requirements for providing evidence regarding the quantity and quality of the goods given for transport..
OLG Düsseldorf, Urteil vom 30.03.2022 – I-18 U 139/16
= Transportrecht 10 2022, S. 426 ff
1. The insurer who relies on a right to reduce benefits from Section 81 (2) VVG must provide evidence of the standard of culpability.
2. The decisive factor for the extent of the insurer’s freedom from performance is whether the gross negligence in the specific case is close to conditional intent or rather in the border area to simple negligence. It is always necessary to weigh up all the circumstances of the individual case.
3. The expression “instant failure” describes the fact that the actor neglects the due diligence required in traffic for a short time. However, this circumstance alone is not sufficient to deny gross negligence. Rather, further subjective circumstances must be added which make it seem justified in the specific individual case to assess the accusation of guilt as less than gross negligence after weighing all the circumstances.
4. In contrast to the regulatory decision of an insurer, which represents neither a legal transaction nor a transaction similar to a transaction, the exercise of the right to reduce benefits standardized in Section 81 (2) Insurance Contract Act is a (structuring) declaration by the insurer. The declaration of the (proportional) reduction in insurance benefits is therefore contestable.
OLG Rostock, Hinweisbeschl. vom 10.03.2022 – 4 U 38/21
= Transportrecht 03 2023, S. 285 ff
1. When transporting frozen goods (alone) the violation of the provisions of the TLMV and/or Directive 89/108/EEC constitutes material damage within the meaning of Article 17, Paragraph 1 of the CMR.
2. The sender of frozen goods is not obliged to check the function of the refrigeration unit before/when loading the truck; a failure to check does not justify contributory negligence on the part of the sender within the meaning of Article 17 V CMR.
3. The carrier is to be accused of qualified fault within the meaning of Art. 29 CMR if he does not check the proper functioning of the refrigeration equipment before and during the transport.
OLG Frankfurt, Urteil vom 11.02.2022 – 13 U 358/19
= Transportrecht 10 2022, S. 434 ff
1. A factual assessment of evidence is subject to correction by the Court of Appeal only in the case of errors in the gathering of evidence, correction of the factual bases, the erroneous recording of which or the determination of new facts is permissible and necessary.
2. Moisture orders placed on moisture-sensitive goods during cross-border transport justify a sufficiently concrete suspicion of damage to the substance within the meaning of Art. 17 CMR, on the basis of which the costs of examining the goods to determine and reduce damage are to be reimbursed.
OLG Bamberg, Hinweisbeschluss vom 25.08.2021 – 1 U 194/21
= Transportrecht 05 2022, S. 229 ff
1. If the carrier’s assistants are involved in loading, it does not automatically follow that the carrier has already taken care of the goods in accordance with § 425 HGB.
2. Likewise, the provision of a vehicle with a lifting platform, the carrying of industrial trucks for loading goods by the driver of the performing carrier, or the regular loading of goods with his own industrial trucks by the performing carrier at the expense of the contractual carrier do not justify an obligation to load, so it is not proven that the contractual carrier was aware of the relevant circumstances.
OLG Stuttgart, Urteil vom 25.08.2021 – 3 U 91/20
= Transportrecht 05 2022, S. 191 ff
1. Decisive for the application of the exemption from liability under Article 17(4)(c) CMR is who carried out the loading.
2. If special lifting devices are required for loading the goods to be transported, which the carrier does not have with him, the sender is obliged to load them.
3. If the carrier’s employees (then) become involved in the loading of the goods with the approval of the sender, they act as the sender’s assistants.
OLG Schleswig-Holstein, Urteil vom 03.05.2021 – 16 U 141/20
= Transportrecht 02 2022, S. 61 ff
1. The claimant has to present and prove the requirements of § 435 HGB.
2. However, if a consignment is damaged in its custody, the carrier has a secondary burden of proof. And not just a research obligation.
3. According to this, the carrier has to substantiate the operation and technical condition of the means of transport, their maintenance and inspection. Otherwise a qualified fault on the part of the carrier is to be presumed.
OLG Stuttgart, Urteil vom 14.04.2021 – 3 U 176/18
= Transportrecht 10 2021, S. 421 ff
1. In view of the detailed and largely mandatory legal regulations associated with the transport law reform of 1998, the ADSp are no longer tacitly included as a “ready-made legal system”.
2. The damage to a consignment (wooden box) stored on the property boundary by a container stacked at a higher level on the neighboring property due to wind pressure is not inevitable for the storing carrier within the meaning of Section 426 of the German Commercial Code (HGB) if a general warning of a storm low was given the day before.
3. The (interim) storage of a consignment before the execution of a later sea transport is to be assigned to the land freight law, which is why the local liability limits apply.
Hanseatisches OLG Hamburg, Urteil vom 11.03.2021 – 6 U 81/19
= Transportrecht 9 2021, S. 403 ff
1. The sender is not to be blamed for contributory negligence if he does not make any (safety) requirements with regard to the means of transport when transporting a consignment by truck to England; despite the well-known risk of shipments being damaged by migrants.
2. Conditions similar to a civil war at the canal ports do not constitute an exclusion of liability according to Art. 17 Para. 2 CMR when a tarpaulin trailer is provided.
OLG Koblenz, Urteil vom 04.02.2021 – 6 U 728/20
= Transportrecht 6 2021, S. 272 ff
According to § 148 ZPO, recourse proceedings are to be suspended if it is disputed in another judicial process whether the claimant in the recourse proceedings is responsible for the damage at all.
Hans. OLG Hamburg, Beschluss vom 28.01.2021 – 6 W 2/21
= Transportrecht 5 2021, S. 253 f
1. A contract for the installation of a rectifier system from the means of transport into a switch room by means of a crane is to be qualified as a freight contract within the meaning of §§ 425 ff. HGB.
2. The carrier is not insured under assembly insurance and there is no multiple insurance in addition to the carrier’s transport liability / liability insurance.
OLG Köln, Beschluss vom 20.01.2021 – 3 U 89/20
= Transportrecht 5 2021, S. 236 ff
1. The assignment by the insolvency holder converts the cover claim aimed at exemption into a payment claim.
2. Reflecting the obligations of the policyholder under the insurance contract, if the insurer is called upon after the insolvency administrator has assigned the coverage claims over the policyholder’s assets, the insurer is obliged to obtain information on the policyholder’s liability from the policyholder and therefore the insurer cannot declare himself ignorant of the liability of the policyholder.
Hanseatisches OLG Bremen, Urteil vom 02.10.2020 – 2 U 168/19
= Transportrecht 6 2021, S. 281 ff
1. A fundamental judgment is admissible if findings regarding contributory negligence on the part of the claimant can be made later in the appeal proceedings.
2. In principle, a damage compensation creditor has to explain and prove that the debtor has breached his duty and that this was the cause of the damage. However, if it is certain that the cause of the damage is only one from the debtor’s area of responsibility and risk, the debtor must exonerate himself not only with regard to the subjective side, but also with regard to the objective breach of duty.
Hans. OLG Bremen, Urteil vom 17.07.2020 – 2 U 180/19
= Transportrecht 2 2023, S. 477 ff
1. An illness of the driver during a transport, which requires the driver to be taken to hospital, does not constitute inevitability in the case of a subsequent theft of a shipment in the sense of Art. 17 II para. 2 CMR if the driver can inform his employer before being picked up at the hospital.
2. Rather, it constitutes a qualified fault according to Art. 29 CMR to leave known valuable goods (branded textiles) unguarded in a public parking lot in the south of England.
OLG Düsseldorf, Urteil vom 13.05.2020 – 1-18 U 120/17
= Transportrecht 11/12 2020, S. 477 ff
1. If a framework agreement with an independent legal entity of the Deutsche Post AG group stipulates that another independent legal entity of the Deutsche Post AG group becomes the contracting partner for international parcel shipments, a corresponding representation of the person carrying out the international shipping shall apply independent legal person in any case with corresponding billing of the transport service as approved.
2. Although Art. 55 Universal Postal Treaty 1999, Art. 38 Universal Postal Treaty 2004 stipulates that the previous Universal Postal Treaty loses its validity with the ratification of the subsequent Universal Postal Treaty and the Federal Republic of Germany has not ratified the Universal Postal Treaty 2006 (and subsequently), the provisions apply of the Universal Postal Treaty and the Postal Parcel Convention in favor of Deutsche Post AG continue to apply.
OLG Köln, Urteil vom 19.03.2020 – 3 U 79/19
(see on this Czerenka in TransportR. 2020, p. 425 (attached to the decision))
= Transportrecht 10 2020, S. 118 ff
1. By sending the damage documents to the transport insurer, the policy holder simultaneously declares the assignment of his rights of recourse under the freight contract to the transport insurer.
2. By sending the damage documents to the insurer, the policy holder simultaneously declares the assignment of his claims from the freight contract to the insurer. Goods which cannot be delivered in the foreseeable future, e.g. due to a refusal of acceptance by the consignee, are deemed to be lost in accordance with Art. 17 para. 1 CMR.
3. leaving a consignment standing in a transhipment warehouse regularly gives rise to the accusation of qualified fault under Art. 29 CMR, as this can only be explained by inadequate entry/exit controls.
4. if the goods no longer have any objective value at all for the consignor from an economic point of view because the consignee has refused to accept the goods, the consignor may refuse to take back or further exploit the goods. lf the consignor is not in breach of his duty to minimise loss or damage, he is not liable.
OLG Stuttgart, Urteil vom 27.11.2019 – 3 U 239114
= Transportrecht 7|8 2020, S. 344 ff
In the case of a so-called incoming fraud, the sender does not have any claims against the carrier in accordance with Art. 17 ff. CMR even if the carrier cannot prove the delivery of the goods handed over to him for transportation to the freight contract recipient, since the sender is harmed in the same way would have occurred regardless of whether the goods were lost in the carrier’s custody or were delivered to the recipient.
OLG Frankfurt am Main, Urteil vom 11.09.2019 – 5 U 196/18
= TransportR. 1 2020, S. 21 ff
1. The clause of a Freight Framework Agreement stating that loaded lorries are “to be parked there where adequate safety is ensured” shall be valid and interpreted as meaning that loaded lorries may be parked only where they are against access by thieves are effectively protected (eg fenced premises with access control, lockable buildings or garages).
2. The breach of corresponding security requirements and / or their failure to pass on grounds for a qualified fault according to § 435 HGB.
3. The objection of contributory negligence wg. Failed declaration of value can only be significant if the value of the shipment has been at least ten times the regular liability.
4. Inadmissible findings in a basic judgment (also) on the amount of the claim do not bind the appellate court (§ 318 ZPO), but are nevertheless not suitable to help an appeal to success.
OLG Celle, Urteil vom 13.06.2019 – 11 U 6/19
= TransportR. 10 2019, S. 428 ff
Unlike in the case of a so-called wrong delivery, in which the carrier is deceived about the right to receive, in the event of an incoming fraud against the sender, delivery takes place in the sense of Art. 17 para. 1 CMR with handover to the person named by the sender, their identity may also be faked (in delimitation / specification to OLG Hamm, judgment of 26.08.2013 – 1-18 U 164/12 [= TranspR 2013, 431] and OLG Düsseldorf, judgment of 05.06.2002 – 18 U 215/01)
OLG Koblenz, Urteil vom 09.05.2019 – 2 U 256/18
= TransportR. 1 2020, S. 24 ff
Premature termination of the contract of carriage
1. The precondition of an obstacle to transport or delivery within the meaning of § 419 I 1 HGB is not that the agreed transport within the meaning of § 275 BGB has become impossible. Rather, it is sufficient that the transport cannot (any longer) be carried out in accordance with the contract.
2. Such an obstacle (1. above) exists if the carrier loses possession of the goods because the sub-carrier now carries the goods further on the basis of a contract of carriage concluded directly with the sender.
3. If the carriage is terminated prematurely due to an obstacle to carriage or delivery, the freight fiiluer retains the right to the full freight in accordance with § 420 III HGB (German Commercial Code) if the obstacle is attributable to the risk area of the consignor.
OLG Hamm, Urteil vom 14.02.2019 – 18 U 160/15
= Recht der Transportwirtschaft 9/2020, S. 338 ff
If the judgment of the first instance concerning the admissibility of the subsidiary intervention is admissible, an appeal against that decision is an immediate complaint.
OLG Hamburg, Urteil vom 24.01.2019 – 6 U 277/15
= TransportR. 10 2019, S. 460 ff
1. If a freight forwarder undertakes (even) to package the goods, works contract law will apply if it is not a subordinate, transport-related activity.
2. Defects of the packaging justify (then) claims according to § 634 No. 4 i.V.m. § 280 BGB, since upon detection of the defect (only) at the destination a supplementary performance of the contract is no longer possible and the purpose of the packaging has been omitted.
3. The handing over of the packaged goods to the following carrier does not justify acceptance i.S.d. § 640 BGB a.F.
OLG Hamburg, Urteil vom 24.01.2019 – 6 U 62/16
= TransportR. 10 2019, S. 456 ff
1. If an insurance broker establishes himself as an insurer when concluding an insurance contract, he must be treated as such.
2. Coverage under a liability insurance already exists with serious assertion of claims against the policyholder.
3. The permanent connection of a yacht to the shore power supply (during winter storage) is part of keeping or using a yacht.
OLG Celle, Urteil vom 13.12.2018 – 8 U 142/18
= TransportR. 10 2019, S. 446 ff
1. If the liability of the carrier meets § 606 sentence 2 HGB a.F. with the non-liability of the carrier according to § 608 (1) Nr. 5 HGB a.F. together, a distribution of liability is to be made by reference to the legal concept of the 254 BGB.
2. On the requirements of an organ fault according to § 660 (3) HGB a.F.
3. When calculating the maximum amount of liability pursuant to § 660 (1) HGB a.F., the damage to be compensated must first be determined, then a reduction in the obligation to pay compensation pursuant to § 254 BGB must be taken into account and then (only) the correction of the substitute limit used.
Hans. OLG Hamburg, Urteil vom 08.11.2018 – 6 U 222/16
= TransportR. 2 2019, S. 84 ff
1. If a negative declaratory action has been filed in the Netherlands, a claim for damages (in terms of time) pursuant to Art. 30 (1) EuGWO shall be suspended.
2. Even if the claims of the defendants there had already been transferred to the plaintiff in the proceedings in Germany prior to filing the lawsuit in the Netherlands, the proceedings are related to each other.
With note of lawyer Benjamin Grimme
OLG Düsseldorf, Beschluss vom 09.10.2018 – 1-18 W 15/18 (n.rk.)
= TransportR. 3 2019, S. 140 ff
1. The clause of a transport order »Please make sure that there is sufficient insurance cover. (…) Only keep the truck in guarded parking lots, whose security correspond with the requirements of your insurance company. «It should be interpreted that parking in unguarded parking lots is not permitted.
2. The violation of the corresponding security requirements constitutes a qualified fault according to Art. 29 CMR.
Hans. OLG Bremen, Urteil vom 10.08.2018 – 2 U 7/18
= TransportR. 2 2020, S. 77 ff
However, even in the case of an application for assessment, the applicant must state and prove that damage has been caused in the custody of the carrier.
Art. 3, 17, 29 CMR; § 264 Nr. 2 ZPO
Hanseatisches OLG Hamburg, Urteil vom 05.04.2018 – 6 U 225/16
= TransportR. 7|8 2018, S. 303 ff
An insurer who relies on the fraudulent misrepresentation of his policyholder in order to justify his exemption from performance, has the intention to deceive of the policyholder.
However, the policyholder has a secondary burden of presentation; an intention to deceive is therefore to be assumed if the policyholder is too does not make a presentation in the relevant circumstances.
OLG Frankfurt am Main, Hinweisbeschluss vom 14.03.2018
und Zurückweisungsbeschl. v. 09.04.2018 – 3 U 178/16
= TransportR. 10 2018, S. 386 ff
The overturning of a truck in strong winds without the occurrence of further circumstances justifies no qualified fault of the carrier.
Art. 29, 32 CMR
Hanseatisches OLG Hamburg, Beschluss vom 07.03.2018 – 6 U 40/16
= TransportR. 7|8 2018, S. 301 ff
1. The carrier’s period of custody shall continue to exist even if there is a temporary or definitive obstacle to delivery because the consignee refuses to accept the goods.
2. The meticulous handling of the TLMV is indispensable to avert significant risks to the health of consumers. Frozen goods which have been transported in non-compliance with § 2 (4) TLMV are no longer marketable and thus damaged within the meaning of the CMR because of the consequences under food law and the possible damage to the image which would occur if a trader placed frozen products on the market which are not permissible under food law. The actual microbiological condition of the goods is therefore no longer relevant.
3. In the case of frozen goods transport, the carrier is responsible for ensuring that the goods can be transported at all times in accordance with the contractual agreements; this also applies if delays occur which require the goods to remain in the transport vehicle for a longer full stop of time. If, against this background, he uses a vehicle without active refrigeration, he thereby consciously assumes – in the sense of qualified fault – the risk of spoilage of the goods in the event of delays in the transport.
4. Qualified fault in accordance with Art. 29 (1) CMR precludes invoking exemptions from or limitations on liability in accordance with Art. 17 (2) and (4), Art. 18, 23 CMR.
OLG Düsseldorf, Urteil vom 08.11.2017 – 1-18 U 173/15
= TransportR. 5 2018, S. 197 ff
The parking of a transport vehicle loaded with groupage in an unguarded commercial area justifies (even on weekends and even if the carrier is aware that there are easily deductible goods under the groupage) not easily the charge of a qualified fault.
OLG Nürnberg, Beschluss vom 14.08.2017 – 12 U 2204/15
= TransportR. 3 2018, S. 118 ff
A freight carrier who asserts claims under § 414 (1) HGB because of damage to his truck to the sender is not to be blamed for contributory negligence under § 414 (2) HGB if the driver – despite expressed doubts about the safe / reliable loading / Packaging – trusts in the sender’s declaration that the goods are always packed / loaded the same way.
With note of lawyer Benjamin Grimme
Saarl. OLG, Urteil vom 08.02.2017 – 5 U 29/16 (rechtskräftig)
= TransportR. 11|12 2017, S. 453 ff
Road transport / CMR
Art. 17 Abs. 2 CMR
OLG Köln, Urteil vom 25.08.2016 – 3 U 28/16
Urt. v. 28.08.2016
Inevitability of damage to the goods in the event of a tire fire
OLG Hamm, Urteil vom 21.04.2016 – Az. 18 U 17/14
(§ 426 HGB, § 7 II StVG a.F., GüKG)
RdTW 3/2017, S. 111 ff
1. If the location of the damage is still unknown at the time when the damage notification should have been made, Section 452 b HGB with its reference to Section 438 HGB is applicable.
2. Basically, the claimant bears the burden of explanation and proof that the opposing party is to be blamed for qualified fault with the result that the opposing party cannot invoke existing legal or contractual limitations of liability in his favour. The claimant already fulfills the burden of proof incumbent on him if his statement of claim according to the circumstances of the case
qualified fault with a certain probability and only the opposing party can contribute in a reasonable way to the clarification of the damage that has occurred in his area. The same applies if there are indications of a corresponding fault from the undisputed facts.
3. In the event of an out-of-court settlement of a damage, the relevant date for the conversion of the special drawing right cannot be determined according to Art. 23 Para. 1 Sentence 2 MC because there is no judicial decision. However, Art. 1 § 3 of the law on the harmonization of liability law in air traffic (BGBI. 2004 | p. 550) otherwise refers to § 431 IV HGB, so that the day on which the goods are accepted for carriage is important. (Editorial guidelines)
OLG Hamburg, Urteil vom 17.03.2016 – 6 U 4/15
= RdTW 2 2017, S. 72 ff
1. The contractual carrier has to allow the intentional embezzlement of the goods by a subcontractor commissioned via the freight exchange (Art. 3, 29 CMR).
2. The shipper shall not be accused of contributory negligence if he does not make any determinations concerning the registration number of the truck and the identity of the driver, at the place advised by the contracting carrier, at the time of collection of the goods and indicating to the shipper beforehand Carrier’s reference number appears.
Schleswig-Holsteinisches OLG, Urteil vom 18.12.2014 – 16 U 24/14
= TransportR. 4 2015, S. 157 ff
OLG Naumburg, Urteil vom 28.3.2014 – 10 U 5/13
= VersR. 2015 Heft 3, S. 102 ff
Air transport contract
WA Art. 22, 25
OLG Köln, Urteil vom 15.2.2005 (22 U 145/04)
On the due diligence requirements for a forklift truck driver when unloading bulky crates from a truck.
HansOLG Hamburg, Urteil vom 30.01.2003 – 6 U 110/01
= TransportR. 3 2003, S. 122 ff
A warehouse keeper who rents a warehouse building is not required to inspect it or have it inspected with regard to its structural safety in the absence of specific indications.
HansOLG Hamburg, Urteil vom 20.12.2001 – 6 U 100/01
§§ 435, 452 HGB
OLG Düsseldorf, Urteil vom 12.12.2001 – 18 U 79/01