Termination of the transport contract of the delayed transport company
In a (non-final) ruling dated May 21, 2014, the Cologne District Court – case no. 134 C 293/13 – ruled in a transport law case that the transport costs cannot be reclaimed after termination due to a 3-hour delay of the carrier at the loading location due to termination by the customer if a fixed loading date was not agreed and no other disadvantage to the customer has been demonstrated.
The claim for reimbursement was partially granted due to expenses saved as a result of the transportation order not being fully executed.
The Cologne District Court ruled in favor of the plaintiff:
The defendant is ordered to pay the plaintiff € 1,000 plus interest in the amount of 8 percentage points above the applicable prime rate since October 22, 2013 and to indemnify the plaintiff against her extrajudicial legal fees in the amount of € 124.00. The remainder of the claim is dismissed.
The plaintiff and the defendant are each ordered to bear 50% of the costs of the legal dispute.
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Facts:
(Delayed transportation company)
The plaintiff is seeking reimbursement of transportation costs paid in the amount of € 2,000.00 from the defendant, a transport company.
The parties concluded a transport contract on August 1, 2013, on the basis of which the defendant undertook to transport a car from S., Switzerland, to K. for the plaintiff on August 10, 2013. The time of loading was specified in the contract document as August 10, 2013 at 8:30 am. The unloading point was to be August 12, 2013, 6:00 am. The return transport from K. was to take place on August 13, 2013.
Furthermore, it was agreed that German law, the general terms and conditions customary for the transportation of goods by road and the provisions of the CMR shall apply. K. was agreed as the place of jurisdiction.
On August 2, 2013, the plaintiff transferred the agreed transport price of € 2000.00 to the defendant. By email of the same day, the plaintiff’s employee informed the defendant, giving directions, that the place of loading should be the customs office S./T.
By email dated August 10, 2013, 11:32 a.m., the plaintiff canceled the transport contract and requested the defendant several times, most recently in a letter from a lawyer dated October 8, 2013, setting a deadline of October 21, 2013, to repay the € 2,000.00 paid. No payment was made by the defendant.
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The plaintiff claims that on August 10, 2013, no vehicle of the defendant arrived at the agreed loading location at the agreed loading time. When her employee called the defendant at around 8.45 a.m., she was informed that the defendant’s vehicle would not arrive for at least three hours, as it was still more than 238 km away from the agreed loading location. Since it was important to the plaintiff that the vehicle be delivered on time in K., her own employee drove the vehicle to K.. The plaintiff believes that against this background it was entitled to terminate the transportation contract.
The plaintiff requests that
the defendant be ordered to pay her € 2,000.00 plus interest at a rate of 8 percentage points above the applicable prime rate since October 22, 2013 and to indemnify the plaintiff against her extrajudicial legal costs in the amount of € 255.85.
The defendant requests that
the action be dismissed.
The defendant claims that its drivers had already arrived at the meeting point indicated by the plaintiff at 7 a.m. on August 10, 2013. After repeated telephone calls, it then emerged that the plaintiff’s driver had been waiting at a different location. The defendant argued that a three-hour delay at a distance of over 550 km did not entitle the client to terminate the transportation contract. It was already not apparent that the plaintiff’s interest in transportation by the defendant no longer existed at the time the defendant’s car arrived at the place of loading. In any case, the plaintiff had not made it sufficiently clear when concluding the contract that it insisted on compliance with the fixed loading time. She was therefore not entitled to have the goods loaded at 8.30 am.
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Reasons for the decision:
The admissible action is justified to the extent shown in the operative part.
The plaintiff has a claim against the defendant for repayment of an amount of € 1,000.00 in accordance with Section 812 (1) sentence 2 Alt. 1 BGB.
The plaintiff has paid the defendant the agreed transportation costs of € 2,000.00. However, following termination of the transportation contract, the defendant is only entitled to retain € 1,000.00. It must repay the remaining € 1,000.00 to the plaintiff.
-transport contract-
The plaintiff terminated the transportation contract concluded with the defendant in accordance with Section 415 (1) HGB. Nevertheless, the defendant’s claim to the agreed freight in accordance with § 415 para. 2 sentence no. 1 HGB continued to exist. It is true that the reason for the termination – failure of the defendant’s drivers to arrive at the agreed place of loading at the agreed time – was within the defendant’s sphere of risk (§ 415 para. 2 sentence 2 HGB). Insofar as the defendant initially claimed that it had already been at the meeting point specified by the plaintiff at 7.00 a.m., this blanket statement was not sufficient in view of the specific plaintiff’s statement to the contrary regarding the agreed meeting point and the telephone notification by the defendant’s drivers. In addition, the defendant took the position that a three-hour delay did not entitle the client to terminate the contract.
However, the plaintiff did not sufficiently demonstrate that it no longer had an interest in the transportation three hours after the agreed loading time (Section 415 (2) sentence 2 a. E. HGB). The transport contract states that the goods were to be handed over in S. on August 10, 2013 at 8:30 am and unloaded in K. on August 12, 2013 at 6:00 am. The agreed unloading time in K. was therefore almost 45 hours away.
– Delayed arrival at the place of loading –
The journey from S. to K. only takes approx. 5-6 hours. Against this background, it is not apparent why the plaintiff’s interest in having the transport carried out by the defendant should have ceased to exist. Insofar as the plaintiff claims to have lost confidence in the reliability of the defendant’s drivers due to their delays, the court is of the opinion that the late arrival at the place of loading cannot in itself lead to a loss of confidence, especially since it was a long-distance route where delays cannot always be avoided.
This applies in any case if the client has not made it sufficiently clear to the carrier upon conclusion of the contract that he links his interest in performance to compliance with the loading time specified in the contract. In the present case, no such express indication was made by the plaintiff. The mere indication of a date or time (here: 8:30 a.m.) is not sufficient for the assumption of a relative fixed-date transaction
(see Palandt/Grüneberg, BGB, 70th edition 2011, § 323 RN 20),
in particular because the unloading was not to take place until over 45 hours later. It is also not sufficiently clear from the e-mail of August 1, 2013 submitted by the plaintiff that it would lose its interest in the defendant carrying out the transport if the goods were taken over three hours later. Rather, the email only points out that the delivery in K. must take place as agreed, which would have been possible without any problems in view of the generous time span between loading and unloading, even if the departure at the loading location had been delayed by three hours.
According to § 415 para. 2 sentence 1 no. 1 a. E. HGB, however, the defendant must allow the expenses saved as a result of the termination of the contract to be offset against the agreed freight. The defendant has not provided any information on the amount of its saved expenses. The plaintiff’s assertion that the defendant saved € 1,000.00 in any case due to the omission of the return transport from K. to Z. appears plausible and has not been disputed by the defendant. The plaintiff’s submission can therefore be taken as undisputed (Section 138 (3) ZPO).
Other bases for the plaintiff’s claim are not apparent. In particular, a reclaim of the entire transportation costs in accordance with §§ 323 Para. 2 No. 2, 346 BGB is ruled out, as according to the above, it cannot be assumed that this is a relative fixed-date transaction for which the setting of a deadline by the plaintiff would have been dispensable.
The claim for interest awarded follows from Sections 286, 288 (2) BGB. The plaintiff can also claim indemnification from the defendant for her pre-trial legal costs in accordance with § 2, 13 RVG, No. 2300, 7002 VV RVG, calculated on the basis of an object value of € 1,000.00, from the defendant on the grounds of default (§§ 288, 286 BGB).
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