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. 23.07.2020 – 1 ZR 119/19 – OLG Celle LG Verden
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. 22.02.2018 – IZ ZR 318/16
= TransportR. 2018, S. 207 ff (m. Anmerkung Riemer)
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, Urteil vom 28. Februar 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, Beschluss vom 6. Februar 2013 – I ZR 22/12