Liability for Cargo Safety | ZFZ Postcard Cases
In April 2017, a transport company specializing in high value cargo commissioned a carrier to transport precious metal bearing scrap from Germany to Austria
The carrier and the company had an ongoing business relationship, making it aware of the precious cargo that was being transported regularly. The carrier, however, did not ask about the value of the transported goods specifically in this voyage. The carrier did not take any safety precautions, and in the course of the transport, the goods were stolen.
The carrier was sued by the company’s insurer for damages. The insurer argued that since the carrier did not take any safety precautions for the precious cargo, it acted with gross organizational culpability. According to the Convention on the Contract for the International Carriage of Goods by Road (CMR Convention), a carrier acting in gross culpability is not only liable for the lost goods, but for any damage caused due to the loss. On this basis, the insurer claimed damages for the lost goods, worth EUR 58,889.96, and further damages like interest rates and procedural costs of a pre-procedure, amounting to EUR 24,659.81.
The Austrian Supreme Court held that the necessity to take safety measures depends on (1) the value of the cargo, (2) the carrier’s knowledge of the value and (3) how likely it is that the cargo be stolen (e.g., weight of the goods, exploitability of the stolen goods, etc.). The Supreme Court ruled that the carrier knew – due to its longstanding business relationship with the company – that it regularly transports such high value cargo for the company. Therefore, the carrier’s failure to take the necessary safety measures constituted gross organizational culpability and the carrier was found fully liable for the damages.