Inadequate Cargo Securing: When Is the Carrier Liable?

Sept 3, 2026 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) addressed the question of under what circumstances a carrier can invoke the exemption from liability under the CMR when the carrier is already aware of insufficient cargo securing prior to the start of the journey.

Improperly Secured Cargo

The shipment consisted of large-format windows scheduled for delivery from Slovenia to Austria. Loading and securing procedures were conducted by the sender's personnel. Prior to departure, the driver observed that certain elements of the cargo were insufficiently secured against tipping and communicated these concerns to the sender.

After the driver's concerns were initially ignored, he consulted with his supervisor. Despite the expressed concerns, the sender confirmed that the cargo was properly secured and instructed the driver to proceed with the transport. During the journey, the load tipped over and was damaged.

Exemption from liability

According to the CMR, the carrier is generally not liable for damages resulting from the particular risks associated with loading, stowing, or securing the goods performed by the sender. However, this exemption from liability does not apply if the carrier is found to have acted with gross negligence or intent. The burden of proof for such fault lies with the party suffering the damage.

No gross negligence identified, despite acknowledgment of risk

According to case law, gross negligence requires an extraordinary and conspicuous disregard for the required level of care. The occurrence of the damage must have been likely foreseeable.

The OGH determined that the criteria for gross negligence were not satisfied in this particular case. Crucially, the driver did not disregard the inadequate cargo securing; instead, he brought the issue to the sender’s attention and consulted his supervisor. Since the sender confirmed the transport should proceed despite these notifications, the carrier was not considered to have committed a particularly egregious breach of care.

OGH 7 Ob 54/26f (24 June 2026)