A railroad undertaking is liable in cross-border motorail traffic pursuant to Art. 36 § 1 of the CIV Uniform Rules is in principle strict liability for damage caused to a passenger's motor vehicle during the period of custody.
On appeal by the plaintiff, the judgment of the 1. Civil Chamber of the Regional Court of Dortmund of 5. March 2013 annulled.
The defendant's appeal against the judgment of the Dortmund District Court of 30. March 2011 is dismissed.
The plaintiff claims compensation from the defendant for damage to his car during its carriage on a car train.
The plaintiff booked the transport of his motor vehicle with the defendant on 26. June 2007 from Narbonne in France to Kornwestheim in Germany. The vehicle was loaded onto an open transport wagon in France for transport to Germany. When the vehicle was picked up at its destination, it had a hole in the windshield, scratches in the paint behind the driver's door, a scratched bumper and a damaged taillight. It is disputed between the parties when and under which circumstances the damage was caused.
The plaintiff is of the opinion that the defendant is liable for the damages found when the vehicle was picked up at the place of arrival. He therefore demanded that the defendant pay 1.The Court of Appeal claimed € 511.01 plus interest and reimbursement of pre-court legal costs in the amount of € 261.21.
The defendant has opposed the action. It argued that the alleged damages resulted from the special risk of carriage with open wagons, for the consequences of which it was not liable.
The court of appeal dismissed the claim, which was largely successful at first instance. In the appeal allowed by the Court of Appeal, which the defendant seeks to have dismissed, the plaintiff seeks to have the judgment of the court of first instance restored.
The Court of Appeal held that the plaintiff was not entitled to the damages claimed. In this regard it stated:
The defendant was relieved of its liability in principle pursuant to Art. 36 § 1 of the Uniform Rules concerning the Contract of International Carriage of Passengers by Rail. 36 § 3 lit. A and b CIV exempt. The wording "lack of or defects in the packaging" in kind. 36 § 3 lit. A of the CIV Uniform Rules also covers the case of the "open wagon risk". The vehicles loaded on open wagons – unless they are new vehicles ex works – usually do not have any packaging and are not required to have such packaging. The wording of Art. 36 § 3 lit. A of the CIV Uniform Rules also covers the risks associated with carriage on open wagons. The evidentiary presumption in dispute in favor of the defendant under Art. 37 § 2, sentence 1 of the CIV Uniform Rules had not been disproved by the plaintiff, who had the burden of proof.
The plaintiff's appeal against this assessment is successful. It leads to the restoration of the judgment of the court of first instance.
The court of appeal correctly assumed that the defendant's liability for the damage to his car claimed by the plaintiff was assessed in accordance with the provisions of CIV. According to Art. 1 § 1 of CIV, the Uniform Rules apply to any contract of carriage of passengers by rail, whether for reward or free of charge, when the place of departure and the place of destination are situated in two different Member States – in this case France and Germany. If compensation is claimed for damage to a vehicle carried with the goods, then in accordance with Art. 47 of CIV, the provisions on liability for luggage should be applied.
According to Art. 36, § 1 of the CIV Uniform Rules, the carrier is liable, irrespective of whether he is at fault, inter alia, for the loss or damage caused by damage to luggage between the time when the carrier takes it over and the time of delivery. The luggage must have been damaged during carriage by rail.
The court of appeal assumed, in agreement with the district court, that the damages ascertained when the vehicle was picked up at its destination in Kornwestheim were not yet present at the time the defendant took over the passenger car. Therefore, they could only have occurred during the period of the defendant's liability, with the consequence that the conditions for liability in accordance with Art. 36 § 1 of CIV are fulfilled. The appellate court does not recall anything against this.
Contrary to the view of the Court of Appeal, the defendant's liability for the damage in question is not excluded.
An exclusion of liability according to Art. 36 § 2 of CIV, the Court of Appeal was correct in its conclusion. According to this provision, the carrier is exempted from liability in accordance with Art. 36, § 1 of the CIV Uniform Rules, insofar as the damage was caused by circumstances which the carrier could not avoid and the consequences of which he was unable to prevent. The proof that the damage was caused by one of the types of damage specified in Art. 36 § 2 of CIV is incumbent upon the carrier in accordance with Art. 37 § 1 of CIV to the carrier. Accordingly, the latter must show in detail that the damage that has occurred could not have been prevented even by exercising the utmost economically reasonable care.
The lower courts assumed that the defendant had only made a blanket assertion that the damage ascertained could also have been caused by stone chipping or vandalism, which was not sufficient to justify an exclusion of liability in accordance with Art. 36 § 2 of CIV was not sufficient. This does not show any error of law. The appellant does not object to this.
The appeal successfully challenges the view of the Court of Appeal that the liability of the defendant for the damages in dispute is excluded pursuant to Art. 36 § 3 lit. A and b of CIV exclude.
By type. 36 § 3 lit. A CIV, the carrier is excluded from liability in accordance with Art. 36 § 1 of the CIV Uniform Rules, insofar as the damage has arisen from the special risk connected with the absence of packing.
The Court of Appeal assumed that the wording of Art. 36 § 3 lit. A CIV also includes the case of an "open wagon risk". The vehicles transported on a motorail train usually do not have any packaging and, as a rule, do not have to have such packaging because the potential risk during transport on a motorail train is no higher than when the vehicle is used in normal road traffic. The transport by rail was only a substitute for the use of the vehicle on the road.
The Senate is unable to agree with this assessment of the court of appeal. The appeal successfully complains that the Court of Appeal did not take sufficient account of the provisions on the carrier's exclusion of liability in other international transport conventions. In Art. 23, § 3 of CIM, which applies to the international carriage of goods by rail, expressly distinguishes, with regard to the carrier's exclusion of liability, between carriage of the goods in open wagons and the absence of packaging of the goods. A similar differentiation can also be found in Art. 17 para. 4, lit. A and b CMR. The grounds for exemption from liability in accordance with Art. 36 § 3 of CIV, on the other hand, does not provide for such a distinction. It cannot be assumed that the differentiation between the special risks of freight transport on open wagons and the lack of packaging of the goods was inadvertently omitted from the Uniform Rules concerning the Contract for International Carriage of Passengers by Rail.
The provision of the type. 36 § 3 lit. A CIV regulates the case that a packaging of the goods, which is intended per se, is either completely missing or is present but defective. On the other hand, the case structure in which the goods are not usually packed and therefore no particular danger emanates from a lack of packaging does not fall within the scope of application of the Art. 36 § 3 Book. A CIV. If this were not the case, it would not be possible to decide on Art. 36 § 3 lit. A CIV of the kind. 23 § 3 lit. A of CIM, which regulates the exclusion of liability for the carriage of goods on open wagons for the scope of application of CIV, has also been introduced. However, there is no indication for such a disclaimer in the relevant provisions of the CIV. The Revision rightly points out that it is incompatible with the mandatory and exhaustive nature of the provisions of CIV to apply the provisions contained in Art. 36 § 3 of CIV to include the exclusion of liability for the carriage of goods on open wagons.
The defendant can also not successfully rely on the exclusion of liability according to Art. 36 § 3 letter. B CIV appointed. According to this provision, the carrier is exempted from liability under Art. 36 § 1 of the CIV Uniform Rules exempts the driver from this obligation, insofar as the damage to the goods has arisen from their natural state. The court of appeal did not deal with this ground for exclusion of liability in more detail. However, it is correct to assume that motor vehicles transported on a motorail train do not regularly have to have a wrapping, because the potential danger in such transport is not higher than in the case of use of the vehicle in road traffic. The revision points out rightly that then also no special danger from the natural condition of the motor vehicle in the sense of art.