1. In the case of contractually owed delivery by personal delivery to the consignee, the mere depositing of the consignment on the consignee’s premises does not constitute delivery within the meaning of § 425 HGB.
2. If the carrier does not meet the consignee in the case of contractually owed delivery by personal handover to the consignee, he must obtain instructions from the sender (§ 419 HGB)
3. Ihe storage of pharmaceuticals on a freely accessible property, exposed to the effects of the weather, constitutes a total loss.
AG Weinheim, Urt. v. 25.05.2023 – 1 C 34/22
= Transportrecht 3 2024, S. 102 f
1. Pharmaceuticals which – after being deposited by the carrier – are exposed to access by third parties/the effects of the weather are no longer marketable.
2. Conduct of a carrier in breach of contract (here: depositing the consignment with the recipient instead of handing it over personally as contractually agreed) (always) constitutes qualified fault.
AG Weinheim, Urt. v. 14.04.2023 – 2 C 208/21
= Transportrecht 3 2024, S. 16 f
1. With (pro-rata) settlement of the damage by the carrier against the transport insurer, the carrier simultaneously recognizes the transport insurer’s right to claim; also for subsequent legal liability proceedings.
2. Costs of an expert relating to the determination of the cause/amount of damage – and not the verification of the insurer’s obligation to intervene – are subject to reimbursement in accordance with Section 5 430 of the German Commercial Code (HGB).
3. If the carrier/their insurer rejects recourse claims, they are in default.
AG Hamburg, Urt. v. 29.04.2022 – 33a C 239/21
= Transportrecht 1 2024, S. 11 ff
1. A pre-trial “no objection” to passive legitimacy is not suitable to justify a claim against the person concerned. (No. 19)
2. The burden of explanation and proof for all circumstances that justify the outfitter status is borne by the person who claims an outfitter as such. The assessment of the supplier status is not based on a formal legal position, but on the actual use of the ship for inland navigation like a ship owner. Principles of prima facie evidence do not apply. (paragraph 20)
3. The user of the ship is only an outfitter (§ 2 Para. 1 BinSchG) if the skipper is in his service, i.e. dependent on him and subject to his managerial rights. (paragraph 21)
4. Liability as a “bogus supplier” only exists in the area of legal transactions, but not within the framework of liability from tort, in particular for average claims. (Rn. 21)
5. Negotiations within the meaning of Section 203 of the German Civil Code require the obligated party to engage in discussions. This is lacking if liability is consistently rejected. (Rn. 35) (Editorial guidelines)
AG Bremen, Urt. v. 12.03.2021 – 11 C 1/20
= RdTW 10/2021, S. 405
1. A letter of settlement from a carrier in which the carrier announces settlement of the damage in the amount of the standard liability simultaneously constitutes an acknowledgement of liability on the merits, to which the carrier must adhere.
2. Deviations from the prescribed temperature constitute a total loss in the case of pharmaceuticals.
3. The depositing of pharmaceuticals in the garden of the consignee instead of handing them over personally constitutes fault in accordance with § 435 HGB.
AG Bergisch Gladbach, Urt. v. 27.07.2020 – 62 C 3/20
= Transportrecht 3 2024, S. 104 ff
In contrast to possibly according to Section 19 ADSp, a prohibition of offsetting in favor of the carrier commissioned by the user is in any case not justified according to § 32 AÖSp.
AG Hannover, Beschl. v. 04.06.2020 – 410 C 1448/20
= Transportrecht 1 2021, S. 19
Decisive for the calculation of the regular liability according to § 431 HGB is the weight of the freight item and not the weight.
AG Bremen, Urt. v. 01.02.2018 – 10 C 227/17
= TransportR. 6 2018, S. 250 ff