Compensation for Damage to Transported Goods According to §§ 451, 407, 425 HGB (§ 398 ZPO)
The Cologne Regional Court in a decision dated January 9, 2018 – Case No. 16 S 5/16 – partially granted a compensation claim regarding damage to transported goods. The judgment shows which requirements must be met for damages to transported goods to be effectively enforced against the transport company.
This is an appeal proceeding. The Cologne Local Court had previously dismissed the claim in its entirety. The Regional Court partially overturned this judgment and ruled:
The judgment of the Cologne Local Court 142 C 322/14 dated April 4, 2016, is partially overturned on the appeal of the plaintiff and appellant dated July 8, 2016, and is reworded as follows:
The default judgment of the Cologne Local Court 142 C 322/14 dated August 31, 2015, is upheld insofar as the defendant was ordered to pay the plaintiff €580 plus interest at a rate of 5 percentage points above the respective base interest rate since April 11, 2014, as well as pre-trial attorney’s fees in the amount of €79.97. The appeal is dismissed for the rest.
The costs of the legal dispute in the 1st and 2nd instances are borne 85% by the plaintiff and 15% by the defendant.
The judgment is provisionally enforceable.
The revision is not allowed.
Facts of the Case:
The parties are disputing compensation claims due to alleged damage to transported goods amounting to €3,800 plus interest at a rate of 5 percentage points above the respective base interest rate since April 11, 2014, as well as payment of pre-trial attorney’s fees amounting to €218.72. For a more detailed presentation of the facts and dispute in the first instance, reference is made to the contested judgment. (§ 540 Para. 1 No. 1 ZPO ). The Local Court dismissed the claim.
With his appeal, the plaintiff challenges the Local Court judgment with the aim of obtaining a conviction of the defendant in accordance with the first instance applications. He criticizes the fact-finding by the Cologne Local Court as incomplete and therefore erroneous, and on the other hand, the Local Court erroneously assumed that the further transport of the transported furniture pieces to the plaintiff’s apartment was no longer carried out by the defendant, but was arranged by the plaintiff himself.
The Plaintiff and Appellant Requests,
to amend the judgment of the Cologne Local Court 142 C 322/14 dated April 4, 2016, and to order the defendant, while maintaining the default judgment of August 31, 2015, to pay the plaintiff €3,800.00 plus interest at a rate of 5 percentage points above the respective base interest rate since April 11, 2014, as well as pre-trial attorney’s fees in the amount of €218.72.
The Defendant and Appellee Requests,
to dismiss the appeal.
The defendant and appellee defends the first instance judgment; she considers the statement of witness T. in the first instance proceedings to have been correctly assessed by the Local Court as inconclusive and claims of the plaintiff to be excluded beyond that, since even with a flawless receipt of the transported goods, damage in the plaintiff’s area of responsibility could not be ruled out.
In the oral hearing on December 20, 2016, the court pointed out that regarding the amount of damage, the decisive factor is the difference between the value of the undamaged removal goods at the place and time of acceptance for transport and the value of the damaged goods at the place and time of acceptance, with a legal presumption that the damage occurred in the amount of any repair costs.
The Court of Appeal took evidence by examining witness T. according to the evidence order dated February 28, 2017. Regarding the result of the taking of evidence, reference is made to the minutes of the session dated October 17, 2017.
Reasons for the Decision:
The appeal, filed in due form and time, is admissible in its entirety. It is also partially successful on the merits:
The Plaintiff is Entitled to Damages Pursuant to §§ 451, 407, 425 of the German Commercial Code (HGB) against the Defendant in the Amount of 570 € Due to the Damage to the Highboard and Sideboard.
According to § 425 Para. 1 HGB the carrier is liable for damage resulting from loss or damage to the goods during the period from taking over for transportation until delivery. A moving contract pursuant to § 425 HGB was concluded between the parties. On January 19, 2014, the plaintiff signed an order from the defendant for the transport of moving goods from D. in Germany to A. in Spain. In fulfillment of this order, the defendant carried out the move on January 28, 2014, including the furniture in dispute. Based on the evidence taken by the Court of Appeal, the Court of Appeal is convinced that damage to the sideboard and highboard occurred between takeover and delivery, i.e., during the carrier’s liability period. In this respect, the plaintiff, who bears the burden of presentation and proof, has succeeded in proving damage to the goods by the carrier.
In principle, it is at the discretion of the Court of Appeal whether it re-examines witnesses who have already been examined in the lower court according to § 398 Para. 1 of the German Code of Civil Procedure (ZPO) However, the Court of Appeal is obliged to re-examine if it wants to assess the credibility of the witnesses differently than the court of first instance
(BGHZ 158, 269 (274) = NJW 2004, 1876 = BeckRS 2011, 06097 Para. 6).
The same applies if the Court of Appeal wants to interpret the recorded statement of a witness differently than the judge of the lower court (BGH, NJW 1982, 1052 (1053); NJW 1984, 2629) or if it considers the statement of a witness to be too vague and in need of clarification
(BGH, NJW 1982, 1052 (1053); NJW-RR 2002, 1649 (1650))
or if it wants to give the statement a different weight, a different scope, or an interpretation that deviates from the literal meaning (BGH, NJW 2015, 74, zVb para. 23). In all these cases, a re-examination of a witness can only be omitted if the appellate court relies on circumstances that do not concern the witness’s judgment, memory, or truthfulness, nor the completeness or consistency of their statement (BGH, NJW 2011, 3780 with note Voit, NJW 2011, 3782 = NZBau 2011, 746 para. 16; BauR 2013, 1726 = BeckRS 2013, 12816 para. 12).
(Quoted from BGH NJOZ 2015, 310, Beck-Online)
Based on these standards, the Court of Appeal re-examined witness T. As a result, the chamber considers the evidence to be established that the sideboard and highboard were not damaged when the moving goods were taken over. During her examination on October 17, 2017, witness T. stated that the sides and fronts of the cabinets were visible. According to her recollection, there was no damage to them. In particular, nothing that would have been obvious. Damage as shown in Photo A was neither perceived nor seen on the cabinet.
The same applies to Photo C, as far as a cabinet is visible there. No damage was visible on any of the cabinets as shown on pages 66 or 69 and 70 of the file. She would have perceived such damage if it had already been present before takeover, as she had been standing directly in front of the furniture. The witness’s statement is comprehensible and overall credible. The credibility of the witness is further emphasized by the fact that she admitted knowledge gaps regarding the coffee table and the bed and only stated that she could make statements about the cabinets. By doing so, the witness has shown that she made her statement objectively and free from tendencies to incriminate or exonerate. The explanation that her perceptual ability regarding the two cabinets was based on the fact that these two pieces of furniture, about which she could not make a statement, were in storage and packaged, is true to life and consistent.
The damage to the cabinets that occurred after takeover also occurred before delivery and thus still within the defendant’s area of responsibility. Insofar as the defendant claims that any damage during transport from the truck to the plaintiff’s apartment no longer occurred within the timeframe of their liability, this is incorrect. According to the order, the defendant owed transport to the unloading point “Plaintiff’s name, Location/Facility, Floor: Ground Floor”. Based on the specification of the floor, the order description, considering the standard of the objective recipient’s perspective to be applied according to §§ 133, 157 BGB, can only be understood to mean that delivery and thus unloading by the defendant should take place in the plaintiff’s apartment. By using Mr. S. for the transport of the remaining distance, the defendant must accept his breaches of duty within the framework of an attribution according to § 428 S. 2 HGB.
The claim has also not expired according to § 451 f HGB. According to § 451 f No. 2 HGB, claims for damage to the removal goods expire if the damage was not externally visible and if no damage report is made within 14 days after delivery. In the case at hand, the furniture was packaged (compare the facts of the first instance judgment). Opening the packaging upon delivery is only necessary if damage is to be expected from the external appearance of the packaging (cf. Koller Transport Law 2013, § 451 letter f HGB marginal no. 2). The appellant, who bears the burden of presentation and proof in this regard, has not presented anything to this effect, so the 14-day period runs. The plaintiff’s damage report was made within this period.
Regarding the amount of damage, the value estimated by the carpentry G. of 310,- € for the sideboard, 270,- € for the highboard, thus 580,- € without VAT, was to be taken as a basis. In case of damage to the transported goods, according to § 429 Abs. 2 S. 1 HGB the difference between the value of the undamaged goods at the place and time of acceptance for transport and the value that the damaged goods would have had at the place and time of acceptance is to be compensated.
According to § 429 Abs. 2 S. 2 HGB, it is presumed that the costs to be incurred for damage reduction and repair correspond to the difference amount to be determined according to S. 1. With regard to the repair costs estimated at unit prices and thus substantiated, the defendant has not substantively and thus not significantly countered. Insofar as she refers to the unit prices being overstated in the result, it is not apparent which of the unit prices detailed by the plaintiff should lead to the overstated result, so that it is not apparent to the plaintiff what any evidence should be directed at. A mercantile depreciation, as the plaintiff first presented in the written statement of 09.02.2017, is not plausibly stated. It is not apparent to what extent such a depreciation is even conceivable for the cabinets to be considered damaged here, as nothing has been presented about a corresponding market. Furthermore, such a claim also fails due to § 432 S. 2 HGB.
The Ancillary Claims Dependent on the Main Claim Were also Justified as Part of the Damages in Proportion to the Merits of the Appeal.
In other respects – i.e., regarding the other pieces of furniture whose damage the plaintiff complains about – the appeal was to be dismissed as unfounded. The plaintiff, who also bears the burden of presentation and proof in this respect, was unable to prove that damage did not already exist before the defendant took over.
The testimony of witness T. was inconclusive in this regard, as she was unable to make any statements about the furniture in the warehouse, such as the bed, the coffee table, and the living room suite, because she stated that she had not looked at the furniture that had to be brought up from the basement. Insofar as the witness stated with regard to the living room suite that the tear visible in the photo must have been recognized during loading and could easily occur when loading the piece of furniture, this is not a statement that the witness made based on her own perception, but on general experience, which is why the chamber was prevented from basing a conviction on this statement.
The described experiences also do not allow any conclusion as to during which transport process the tear occurred. It could just as well have occurred during transport to the basement and thus have already existed before takeover.
Insofar as the plaintiff claims for additional furniture mentioned in the statement of claim, he has not conclusively presented the alleged damage even after judicial notice.
The revision is not to be allowed, as the legal case is neither of fundamental importance nor does the development of the law or the assurance of consistent jurisprudence require a decision by the court of revision.
The procedural ancillary decisions are based on §§ 92 para. 1, 97 para. 1, 708 No. 10, 711, 713 ZPO.
Amount in dispute for the appeal proceedings: €3,800
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