Austrian Supreme Court: No Loss on Delivery to Designated Recipients

Nov 4, 2022 Benn-Ibler Rechtsanwälte

If a carrier delivers to a recipient named by the sender either as designated in the consignment note or designated by instruction, no loss during the shipping period can be claimed. It is irrelevant whether the recipient is a fraudster who has bought from the sender under a false name.

The plaintiff is involved in trading of goods. The defendant runs a freight forwarding and transport company. The plaintiff had commissioned defendant with twelve different shipments. During delivery of the goods there were repeated changes of address and contact persons, partly at the request of the plaintiff's buyer, partly at the request of the plaintiff herself. It became apparent that the individuals to whom the goods were delivered had been purchasing them from the plaintiff by fraudulently using multiple companies and names, without any intent to pay. The plaintiff claimed that it should have been obvious to the delivery drivers that the recipients were scammers. The plaintiff claimed damages of approximately EUR 121,000.00 in accordance with Article 17(1) of the Convention on the Contract for the International Carriage of Goods by Road (CMR). The defendant countered that the plaintiff herself had acted carelessly, and filed for the case to be dismissed.

Both the court of first instance and the court of appeal did not uphold the plaintiff. The Austrian Supreme Court (Oberster Gerichtshof) agreed with these decisions as follows:

According to Art 17 Para 1 CMR, a carrier is liable for total or partial loss of the goods between the time of acceptance and the time of delivery. However, according to para. 2, the carrier is not liable if the circumstances that led to the loss could not have been avoided and their consequences could not have been avoided. The period during which the goods are in the care of the carrier, and thus also the period of liability under Article 17(1) of CMR, ends with delivery. Delivery is required to be made to the lawful consignee of the goods. The lawful consignee can be not only the recipient named at the time of conclusion of the contract, but also the recipient determined later by mutual agreement or through specific orders. If the carrier thus delivers to one of these persons, no loss is incurred, even if the recipient has made the purchase under a false name.

OGH 7 Ob 126/22p (24.08.2022)