Is the carrier also liable for damage to the packaging?
The plaintiff had been commissioned by the defendant to transport beverages and, in addition to the payment of unpaid freight, demanded compensation for the additional transport costs incurred because the recipient had refused to accept the transported goods. The reason for the refusal was visible damage to the packaging (in this case: special displays, which by their nature are not intended for consumption). In the statement of claim, it was claimed that the carrier was only responsible for the goods or the goods to be transported, but was not liable for the packaging. Since the sender is responsible for proper packaging, the carrier only has to carry out an external inspection and only check whether the packaging has any obvious defects. Therefore, the recipient has no justifiable reason to refuse to accept the transported goods if the packaging is only defective.
The Supreme Court took a different view. It confirmed the opinion of the previously appealed instances, according to which damage to beverage displays designed for the storage and placement of goods is to be qualified as damage to the goods, even if the goods themselves were not damaged.
Specifically, the following can be inferred from the ruling:
- The transported goods include not only the goods themselves, but also the packaging added by the sender for protection. Therefore, protective sleeves, pallets and beverage "displays" designed for sale also count as packaging. Damage to packaging that prevents the further intended use of the goods is to be qualified as damage to the cargo.
- In principle, the carrier is liable for all damage to the goods within the transportation period, i.e. between acceptance and delivery of the goods to the recipient. This is a strict liability regardless of fault ("presumed fault liability in the period of care").
The sender must demonstrate and prove that the carrier has taken over the goods in perfect condition, that they have suffered damage and that this damage occurred before delivery if he wishes to sue the carrier.
- Under certain circumstances, the carrier may be released from liability under Art. 17 para. 4 CMR. One of these reasons can be found in lit. b: Exemption from liability is given if the loss or damage is due to the lack of or defects in the packaging.
- If the carrier can show that, in the circumstances of the case, the loss or damage could have arisen from one or more of the special risks referred to in Art. 17 para. 4 CMR, it is presumed under Art. 18 para. 2 CMR that the loss or damage also arose from this. However, the party entitled to dispose of the goods has the opportunity to prove that the damage did not arise or did not arise exclusively from one of these risks.
- For the causality between a circumstance within the meaning of Art. Para. 4 CMR and the damage to the goods, it is sufficient to demonstrate its possibility by means of a substantiated factual submission. It is not necessary for the probability of causation to actually be proven.
Practical tips: What should the carrier bear in mind?
1. checking the goods and packaging upon receipt.
It should be noted here that the CMR does not impose any obligation on the carrier to check the packaging (7 Ob 20/09f). The carrier only has a duty to inform its contractual partner that the packaging is unsuitable if the packaging defect was obvious.
If there is no packaging defect that is obvious to everyone, the carrier cannot generally be accused of breaching a duty to warn (see OGH: 7 Ob 5/13f) if it has not informed the sender of the defect. The possibility of invoking a packaging defect then remains unrestricted.
2. entry of reservations on the consignment note:
- In any case, it is recommended that reservations regarding the packaging be entered in the consignment note, firstly due to the evidentiary function of the consignment note in accordance with Art 8 CMR and secondly due to the legal presumption of the correctness of the packaging in the event that no entries are made in the consignment note. At most, the carrier's obligation to check the external condition of the packages and the packaging can be used to impute contributory negligence to the resulting damage.
- A missing entry leads to the assumption that the goods and their packaging were in good external condition when packed. However, it should be noted that this does not automatically lead to the conclusion that the packaging was actually suitable for protection against the stresses to be expected on the specific transport route and road conditions during normal transportation.
- An entry by the carrier results in a reversal of the burden of proof, i.e. the sender must then demonstrate and prove that the goods suffered damage after acceptance and before delivery if he wishes to blame the carrier.
Excursus: What is transport packaging?
Transport packaging refers to all packaging materials, packaging aids and packaging materials used to protect goods against loss and damage due to the stresses and strains of the transportation and logistics process. It also serves to ensure safety during transportation as a prerequisite for safe loading and safe loading and handling of the goods.
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