The sender instructed the carrier with the transport of products for blood collection and transfusion from Germany to Austria. In the course of regular contractual relationships a general ban on stacking was agreed between the parties with regard to the pallets to be shipped. Both the transport contract and the delivery note signed by the driver included the note “non-stackable”.
In violation of the agreement, the pallets received were stacked in the possession of the carrier. Part of the consignment was damaged and duly destroyed by the Sender. For technical and economic reasons it was not possible to examine preservation of the sterility of the damaged products. The products were accordingly no longer suitable for their intended use.
The carrier rejected the claim for compensation for the loss with the argument that the damaged products should have been surveyed by experts, and the party suffering the loss had violated its obligation to mitigate its loss by destroying the products, so that the exact amount of the loss could no longer be established.
In other respects the liability of the contractor was limited to 8.33 SDR/kg of the damaged product. The carrier argued further that the stacking of the pallets was accidental in the course of normal working procedures, without special negligence. Finally, the damage was unforeseeable given the external compactness of the cartons. “The destruction of damaged freight does not constitute a violation of the obligation to mitigate loss if sale is excluded in any case.”
„The destruction of damaged freight does not constitute a violation of the obligation to mitigate loss if sale of goods is excluded in any case.“
Our approach:
After out-of-court agreement failed we filed suit to enforce the sender’s Claim. In our view the stacking during transport was a breach of contract that should be regarded as gross negligence. Further, there was no violation of the obligation to mitigate loss, as restoration of the sterility of the products was not possible.
The result:
A violation of the contractually agreed ban on stacking is to be regarded as gross negligence within the meaning of Art. 29 CMR under Austrian law as well. The destruction of damaged cargo does not constitute a violation of the obligation to mitigate loss if sale is excluded in any case. The Austrian higher appeals court agreed with our position and held the carrier liable to payment in full.