OGH: No exemption from liability under the CMR

Apr 22, 2022 Benn-Ibler Rechtsanwälte

If the hauler is responsible for gross negligence within the meaning of Article 29 of the Convention on the Contract for the International Carriage of Goods by Road (CMR), the person entitled to compensation may demand compensation for all damages that can be compensated according to the national law that is additionally applicable in this case, without limitation of the amount. Limitations of the hauler's liability based on the CMR do not apply.

The plaintiff is the transport insurer of the policyholder. The policyholder repeatedly organises transports via the defendant, a freight hauler, in a continuous business relationship. In this business relationship, specific values of the transport goods were not disclosed, and the defendant did not inquire about them either. In the present case, a delivery - divided into three packages - was then organised, whereby the valuable and easily usable contents of one package were stolen.

The plaintiff claimed gross organisational negligence, as the defendant did not take anti-theft precautions. The defendant, on the other hand, argued that the CMR were not applicable due to the lack of a fixed cost agreement and that even if the CMR were applicable, the claim was not justified.

The Austrian Supreme Court (Oberster Gerichtshof, OGH) decided as follows:

Since Section 413 of the Austrian Commercial Code (Unternehmensgesetzbuch, UGB) on the rights and obligations of a freight hauler applies as in the case of freight hauling, CMR is also applicable. According to Art 17 para 1 CMR, the hauler is liable for the total or partial loss of and damage to the goods, provided these circumstances occur between acceptance and delivery. However, the burden of proof for any intent is not on the hauler, as in the case of slight negligence, but on the aggrieved party. The alleged organisational negligence needs an objective and subjective serious breach of the care required in transport. The awareness of the dangerousness of one's own conduct is important. Exemption from liability due to theft by third parties was not to be granted to the defendant because this did not occur due to unusual circumstances despite extreme care.

The OGH judged the defendant's conduct to be qualified negligence and restored the judgment of the trial court that had dismissed the action.

7 Ob 150/21s (26.01.2022)