The proof of the number of transferred cargo can also by a certificate issued by the carrier receipt (Transfer receipt) be performed

If neither a bill of lading nor a bill of lading issued, , the proof of the number of transferred cargo from that of type. 17 Abs. 1 CMR beneficiaries by one of the carrier or sei-nem driver issued a receipt (Transfer receipt) be performed. The carrier may not rely on, the Übernahmequit-tung had no probative value or its probative value was shaken, because they “blind” was signed, if the person signing the Empfangsbestä-ment had the opportunity, to observe the loading or after completion of-sen to verify at least the number of packages.

JUDGMENT BGH I ZR 109/13 from 22. More 2014

CMR Art. 17 Abs. 1, Art. 29 Abs. 1; HGB § 435; Civil Code §§ 242 Cd, 368; Code of Civil Procedure §§ 416, 440

The I. Civil Division of the Federal Court of the oral proceedings-lung 22. More 2014 by the judges Prof. Dr. Büscher, Prof. Dr. Schaffert, Dr. Cook, Dr. Löffler and the judge Dr. Schwonke
hereby:
On the revisions of the applicant and its intervener the judgment is the 5. Civil Division of the Oberlandesgericht Frankfurt am Main from 24. More 2013 canceled.
The case is for a new hearing and decision, also on the cost of the revision process, referred back to the Berufungsge-report.
As of right
Facts:
The applicant of its argument leading marine insurers of the W. C. He. GmbH, headquartered in H. (hereinafter: Policyholders- mare). This commissioned his time in A. resident defendants, among others with the transport of two decks of three kilograms Car boplatin by truck at a fixed cost of H. to U. in Austria. The value of the packet was after the packing list each 86.000 €.
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With the implementation of transportation from bearing the intervener the applicant in H. to A. instructed the defendant its armed Helfe- also. On the afternoon of 4. August 2010 belud employee Al. the dispute- intervener the applicant that provided by the intervener the defendant truck with a variety of packages. The individual programs detected the employee Al. with a hand-held scanner. These included the two parcels of policyholder with carboplatin. During the loading operation, the driver stopped the intervener the defendant K. the leader- house of trucks on. Subsequently, the employees of the intervener the applicant and the driver of the intervener the defendant went to the office of La-gers. The driver of the intervener the defendant drew him there pre-designed packing list, on the two parcels were listed with carboplatin, under the heading “Obtained above show” from. The driver then got the lading and a seal for mounting on trucks, the intervener the applicant had been asked by the defendant available. The driver closed the previously open truck and entered the trip to A. an. When he lead-sealed the loaded truck, is not fixed- on. When the truck is unloaded in the camp of the defendant in A. lacked one of the packet with carboplatin.
The applicant stated, both packets of carboplatin were loaded onto the truck the intervener the defendant. Each of the packets have a value of 77.180,54 Had €. You have the insurance of-rungsnehmerin damage caused after deduction of a deductible of 2.500 € regulated.
The applicant has the defendant to pay 77.180,54 € taken together with interest claim, while the alternative payment of an amount of 2.500 € has applied to the policyholder.
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The district court dismissed the action (LG Hanau, Judgment of 23. More 2012 5 The 72/11, juris). However, the applicant and its Streithel-ferin have appealed, which was rejected by the Court of Appeal (OLG Frankfurt, TranspR 2013, 341 = RdTW 2014, 204). With the Berufungsge-approved by the audit report, apply for their rejection of the defendant and its military-aider, pursue the applicant and its intervener the Klagean-demanding further.
Reasons for the Decision:
I. The Court of Appeal has considered the alleged Schadensersatzan-claim of the applicant subrogated to the rights of the policyholder unfounded. There has executed:
The applicant has not demonstrated, that become lost parcel was acquired by the defendant. The evidence did not arise, that the employee Al. the intervener the applicant had loaded the freight item on the truck, and that it was at the end of the La-devorgangs there yet. The sign-off of the loading list by the driver K. under the heading “Obtained above show” have no probative value. She was not in dispute without knowledge of the driver of the full-employment charging, therefore “blind” takes place. The applicant may, on account of the signed driver from loading list require not, that the defendant should be treated as, as if they had taken the package. The active for the intervener the applicant in the camp office employees-terin knew, that the signature of the driver have no back-circuit admitted to the completeness of loading. The driver ha-
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be had to control the loading of any documents in hands and had most the packages may include, what would have been unusual. The defendant must also not be countered as contradictory behavior the sign-off of the loading list by the driver of their intervener. The driver K. have to sign-off to any legitimate ge- create, who had banned from any further inspections or Siche-assurance measures to completion of loading the intervener the applicant. That the intervener the applicant's driver K. her by the defendant to the United- addition Asked seal have left because of the signing of the packing list at your disposal, was neither argued nor from the To-stands visible.
II. The actions against these attacks assessment of revisions to the applicant and its intervener success. With the Court of Appeal on-guided reasoning can according to § 86 Abs. 1 SG on the applicant überge-gangener claim for damages by the policyholder in the manner. 17 Abs. 1 CMR will not be denied.
1. The Court of Appeal was right to consider them, that on the instructions given by the policyholder in order transport the provi-sions of the Convention on the Contract for the International Road Freight Transport (CMR) applicable. The provisions of the CMR by Type. 1 Abs. 1 of the Convention to every contract for the carriage of goods by road in vehicles, when the place of taking over of the goods and the place designated for delivery are located in two dif-ferent States, one of which is at least a State Party. In case of dispute the material should be trucked from H. to U. in Österreich be- be encouraged. Both Germany and Austria are among the United-
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States parties to the CMR. The conditions for the application of Article. 1 Abs. 1 CMR are thus fulfilled.
2. According to Art. 17 Abs. 1 CMR is liable to the carrier for the loss of the goods, unless the loss between the date of acquisition of the goods and the time of delivery occurs. The acquisition requires, that the carrier willfully himself or through his agents due to a more-common freight contract gives the direct or indirect ownership of the goods to be transported (vgl. to § 425 HGB BGH, Judgment of 12. January 2012 – I ZR 214/10, TranspR 2012, 107 Rn. 13 = VersR 2013, 251; to type. 17 CMR Koller, Transportrecht, 8. Ed, Art. 17 CMR Rn. 4; Thume in Thume, CMR, 3. Ed, Art. 17 Rn. 18; Boesche in Ebenroth / Boujong / Joost / Strohn, HGB, 2. Ed, Art. 17 CMR Rn. 9). The acquisition is also subject to the will of the Absen-OFFENDERS, give up the power to dispose of the cargo, and the will of the carrier, to take control of it (Thume supra, Art. 17 Rn. 18).
a) True, the Court of Appeal which is assumed, that the intervener the defendant the cargo with the eruption of witnesses Al. and K. to the charge office of the intervener to the applicant upon completion of loading operations by the witness Al. has taken. From an acquisition within the meaning of Article. 17 Abs. 1 CMR is assumed, if the works carried out by the sender loading operations are completed and closes the driver either hold or the material enters into the so-rich of responsibility of the carrier or his agents, that he or his agents may protect it from damage (vgl. to § 425 HGB BGH, TranspR 2012, 107 Rn. 13). These conditions were present at the time of completion of the loading operations. At this time, the driver was K. capable, the cargo by closing the cargo space from damage to
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preserve. Instead, the vehicle that he, during the period, where he visited the charge office, allowed to stand open, does not lead to a shift in the timing of the receipt of the goods.
b) The applicant is proof loaded darlegungsund for the acquisition of the parcel in question with carboplatin (vgl. BGH, Judgment of 24. October 2002 I ZR 104/00, TranspR 2003, 156, 158 = NJWRR 2003, 754). In case of dispute, it can be assumed, that the applicant has led to its burden of proof. No objection on the legal accounting point of view, al-lerdings the assessment by the Court of Appeal of evidence (to II 2 c and d). With the success of revision but contends, that the defendant at the driver's confirmation K. their intervener must be firmly hold (to II 2 and).
c) Without success of the auditing challenges the assumption of Beru-fung Court, due to the statements of the witnesses evidence was not out, that the packet in question carboplatin spent on the truck wor-was the.
aa) The district court has the testimony of the witness Al. , he had brought the two parcels of the policyholder from the vault, on the truck Witness K. loaded and scanned there, not believed. The Court of Appeal, has repeated the evidence partially, stated, the evidence did not arise, that the witness Al. the freight item was loaded onto the transport vehicle and that this was at the end of the charging process there yet. It can not be ruled out with sufficient safe, that the witness Al. Although recorded the package with dishonest intent with the detection device, but then I either not loaded or unloaded again. As well
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is it possible, that the witness K. the package did manage to page. A third-party access could not be excluded, After the truck until the return of witnesses K. has been open to the charge office.
bb) The evidence of the court below does not show any revisions and legally significant error. The evidence is in principle for the trial court, on its findings, the Court of Appeals in accordance with § 559 Abs. 2 ZPO is bound. The appellate court can only überprü-fen, whether the trial judge according to the commandment of the § 286 Abs. 1 Code of Civil Procedure has addressed comprehensively and consistently with the process material and the proof results, So the evidence is complete and legally possible and not against thinking, Nature- or empirical propositions contrary (BGH, Judgment of 24. June 2009 – VIII ZR 150/08, BGHZ 181, 346 Rn. 30).
cc) The evidence of the Appeal Court meets these requirements-to. The audit alleges vain, that the appeal court did not he-weighed, that employed for the intervener the applicant's witness Al. Carboplatin have known; he therefore knew, that it is not the precious metal platinum, but these were dangerous. In contrast, it was the driver lumbar Picking up where-K. rather be trusted, that he had kept the lost letters packet valuable and worth stealing. This revision may have not penetrate therefore, because the witness Al. has explicitly expressed in his questioning before the District Court and the Court of Appeal, not to have known, that has been in the lost packet Ge fahrgut.
d) The revision engages in vain as evaluating the Appeal Court, the proof of the adoption of the package in question is not the driver's K Transfer receipt. out on the loading list.
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aa) The applicant can not dispute arises with success to evidence-guess by Type. 9 Abs. 2 CMR appointed. Under this provision is prima facie evidence to the contrary, that the number of packages, their marks and numbers corresponded with the statements in the consignment note, if this has-no reasoned reservation of the carrier. However, this evidence presumption only intervenes, when the provisions of Art. 5 and 6 CMR corresponding bill of lading is present (BGH, Judgment of 9. February 1979 – I ZR 67/77, NJW 1979, 2471 = VersR 1979, 466; Judgment of 18. January 2001 I ZR 256/98, TranspR 2001, 369 = NJW-RR 2001, 1253). This is not the case here. The loading list does not replace the waybill.
A liability of the defendant can not be determined in connection with the in kind. 8 CMR certain obligations. As the revision itself a-grants, constitutes an infringement of any of the witnesses K. no liability against such obligations in the manner. 17 CMR (Koller, Transport Law, supra, Art. 8 CMR Rn. 1 mwN).
bb) The revision does not help in the complaint to success, the Court of Appeal had the probative value of the driver K. misunderstood signed note on the receipt of the shipment.
(1) Was – as here – neither a bill of lading nor a bill of lading-out is, , the proof of the number of transferred cargo from that of type. 17 Abs. 1 CMR claimants in principle by a certificate issued by the carrier or his driver acknowledgment (Transfer receipt) be performed (BGH, TranspR 2003, 156, 158). The for-melle probative value of such acknowledgment is governed by § 416 Code of Civil Procedure. Their material evidence depends, as with the acknowledgment within the meaning
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of § 368 BGB – on the circumstances of each case. It is subject to the free judicial evaluation of evidence (§ 286 Code of Civil Procedure) and can through each Ge genbeweis, through which the satisfaction of the court is shaken by their substantive correctness, be invalidated (BGH, TranspR 2003, 156; BGH, Judgment of 4. More 2005 – I ZR 235/02, TranspR 2005, 403 = NJW-RR 2005, 1557). The evidence to the contrary is not required (BGH, Judgment of 13. July 1979 – I ZR 153/77, World Cup 1979, 1157). A shake of evidence is concerned, when the delivery receipt contains information, the apparent or proven could not confirm the sub-drawing (BGH, Judgment of 7. November 1985 I ZR 130/83, TranspR 1986, 53, 56 = VersR 1986, 287). Accordingly, the probative value of a Empfangsquit-tung in doubt does not relate to the contents of a sealed transmission (BGH, TranspR 2003, 156, 158).
(2) The Signature of Witness K. has evidentiary force. It provides full proof for the submission of the tender acknowledgment containing-nen Statement (§§ 416, 440 Abs. 2 Code of Civil Procedure). Whether the statement contained in the Transfer receipt is exhausted to the satisfaction of the court's accurate or their evidential, must appreciate the trial judge. That no error of law in case of dispute the extent undermine.
(3) Presently see fixed, that the driver K. during the charging process- gangs was not present and has signed the note on the receipt of the shipment without examining the number of packages. In this situation it is revision unobjectionable, if the trial judge was not convinced, the package in question is in the charge of the carrier ge-reached.
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and) Contrary to the opinion of the appellate court, the defendant must, however, be held to the transfer receipt and can not rely on the fact, the driver their intervener the number of packages without verification, so to speak “blind” acknowledged.
aa) If the carrier or a switched him Fulfillment mate control the number of goods in the adoption, it makes use of the water-way but no use, and he acknowledged however their number, he acts contrary to the principles of good faith in accordance with § 242 BGB contradictory, when he later plead, is the transfer receipt “blind” issued (vgl. OLG Hamm, TranspR 1992, 359, 360; OLG Karlsru-he, TranspR 2004, 468, 470; Bästlein / Bästlein, TranspR 2003, 413, 418). In such a case, the Transfer receipt establishes the rebuttable Vermu-tung, that the number of units shown applies (vgl. BGH, Judgment of 4. More 2005 I ZR 235/02, TranspR 2005, 403, 404 = VersR 2006, 573). That conclusion is the importance, belongs to the Transfer receipt in the field of transport for the confirmation of receipt of the goods. Signed by the carrier, the Transfer receipt, without having to undergo the stated number of possible control, He holds the sender re-regularly depend on, its part to secure the necessary evidence for the acquisition of goods.
bb) In case of dispute, the conditions are, under which the appeal by the defendant to the “blind” proves signed transfer receipt as a breach of good faith.
(1) The loading list presented in dispute consists of seven fortlau-fend numbered pages, in the total 30 Packets with each sender
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and receiver, Dimensions, Weight, Delivery note, Value of goods, Tracking number and order number are called. On the last page of the total number of packages and the total weight is given. On the first page above are located under the name and address of the applicant, the intervener tour number, the date, the name of the clerk and the tele-phone- and fax number. Directly below the intervener the applicant has a stamp applied, on the pre-printed under the heading “Obtained above show” the date, the license plate, the signature and the name were indicated in block letters. This stamp can be found as the hallmark of entries from the witness K. driven truck, the signature of the witness and his name in block letters. In addition to the completed stamp the seal is in a pre-printed field handwritten notes.
Since the driver's signature K. below the specified tour- Number and stamp form “Obtained above show” is mounted, it has the function, to take over the responsibility for the higher level in the short text and complete it spatially. The probative value of the sub-scripture then recognized the driver K Statement. , to have received from the intervener the applicant a shipment to a particular tour.
(2) The witnesses from K. Transfer receipt issued material contains the declaration, he total 30 Has taken Packages. This off-interpretation of the Senate may itself carry out, there are to be expected in view of the extensive evidence before the district court and the partial repetition of the evidence before the Court of Appeal so far no other hard Stel-payments. After that, the driver's signature K. more info on the packing list compiled by the intervener the applicant as a receipt for the lost packet.
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(3) According to the findings of the District Court, on the Berufungsur-part has referred, it was the object of the intervener the applicant, to load the truck, take it-the charged packages by using a scanning device to, match the data read with the packing list and check it, whether all the packets were scanned on the packing list. In this case, the witness Al were. with the loading and scanning, the witness W. entrusted with the balance of the transmitted data from the scanner with the loading list. The intervener the defendant, for the witness K. worked, however, was not responsible for the loading. According to the findings of the appellate court the driver to load list was first-times associated with the template for signature note. He was thus not to review the packing list during the loading without their own bills of lading able. But the driver had the opportunity, to observe the loading or after its completion before the signing of the transfer receipt to verify at least the number of packages. Of this he has no use ge-making and nevertheless signed the Transfer receipt.
(4) From the entire behavior of the intervener the applicant obtained, that it has taken the driver's signature on the occasion, to waive wei tere measures to control the integrity of the program and to ensure no further evidence of the delivery of the goods. She handed the driver the charging papers and handed him her asked by the defendant available seal for sealing the truck. Without Be-Long is in this context, that the staff of the intervener the applicant have known the driver's lack of control. It was not their job, to stop the driver to control measures. The defendant must be held to the established by the signing of the transfer receipt Vertrauenstatbe-standing. Even if the Übernahmequit-
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tion has been signed without control, they founded the rebuttable presumption for the acquisition of two parcels with carboplatin. These Ver-presumption has not been rebutted the defendant. According to the findings of Beru-fung Court is not to clarify, whether the packet in question has been adopted by the armed heddle-rin the defendant.
3. The Court of Appeal went off in the context of an auxiliary whereas it, that the defendant only limited in the amount of 25 Liable billing units. That does not withstand legal scrutiny of audit.
a) Full compensation – on the restriction of the type. 23 Abs. 3 CMR also – owes the defendant only, if the requirements of Article. 29 CMR present. According to this provision, the carrier may not invoke limitations of liability, if the damage was caused intentionally or by the intention of equal standing fault (Art. 29 Abs. 1 CMR). The same applies, if its servants or Verrich-tung mates falls such qualified at fault (Art. 29 Abs. 2 Set 1 CMR).
Since, according to the between the insurance company and the defendant ge-connected transport contract type. 5 Abs. 1 the RomIVO, which is relevant in case of dispute, German law shall apply, is within the framework of type-men. 29 Abs. 1 CMR § additional 435 To use the German Commercial Code (BGH, Ur part of 4. July 2013 – I ZR 156/12, TranspR 2014, 146 Rn. 15 = RdTW 2014, 55). Under this provision, the carrier can not rely on legal or contractual limitations of liability, if the damage is due to an act or omission, whom the carrier or in § 428 HGB-mentioned person has intentionally or knowingly frivolous.
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The condition of recklessness requires a very serious breach of duty, in which the carrier, its servants or flagrant about the security interests of the contractor hinwegset-zen. The subjective requirement of consciousness from the loss probability is the doer intruding from his reckless behavior recognition, it'll probably be a de-damage (BGH, TranspR 2012, 107 Rn. 27). What security precautions to be taken by the carrier, depends on the circumstances of the individual case.
The Senate is consistently held assumption, that it is in the handling of freight, as that in issue, is a be-especially susceptible to damage area, must therefore be organized so, that generally a- and output of goods to be controlled, so stockouts can be held early. Without adequate A- and exit controls, would normally be a physical comparison of the pa-pier- or. Require IT moderately controlled product, can be a reliable over-view of run and fate of the individual in the transfer stations- and outgoing goods are not collected with the result, that the entry ei-nes damage and the damage area in time, spatial and personel-ler respect can not be limited. The requirement of section Stel-lenkontrollen is reinforced, when – as in the case of dispute, – legally independent third-party companies are involved in the provision of transport services. In § 435 HGB required frivolity of the carrier or its “Leu-te” may result from inadequate organization of the operation ergic-ben. In a business organization, the A- and output controls the order-impact of freight does not provide consistently, is justified as a rule the accusation of reckless behavior, because it is at this
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Measures to elementary precautions against loss of goods is (BGH, Judgment of 25. March 2004 – I ZR 205/01, BGHZ 158, 322, 330 f. further references.).
b) This qualified the exam negligence within the meaning of Article. 29 Abs. 1 CMR to be applied standards do not meet the purpose of the alternative-identified considerations the Court of Appeal.
aa) The Court of Appeal has meant, a qualified fault of the defendant was not presented. The defendant had complied with its rather a responsible-secondary burden of proof. The circumstances of the acquisition and transport to unloading in A. were communicated by the defendant in detail. It can not be excluded after, that the consignment from the care of the intervener the defendant was abhandenge-come, by had been stolen from the open vehicle. Failure to make a backup of fault on the truck driver while. But it was not the same header, because the witness K. local conditions from- had extensive evidence, for a favorable issue to ver-trust.
bb) The Court of Appeal has not reflected to a significant circumstances in his view, Having regard to the other his views on To-states, not found.
The Court of Appeal did not consider, that according to the findings of the driver for the intervener the defendant to the custody of the goods transported by a “blind” has assumed issued receipt. In addition, he has drunk his truck with an open shutter door of the receipt of the cargo documents unattended open. The driver has waived in part to a complete control of the acquired broadcast
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and threatened the other hand the cargo accepted. For there was, as the Court of Appeal also noted, the possibility, have stolen from the open truck the lost packet that third parties, because at this time, two other vehicles loaded close the WUR. These oversights do not exclude the adoption of a lack of Orga nization of the operation at the entrance control and insufficient instructions to the driver on the protection of the cargo at the intervener the defendant. This can be accused of recklessly within the meaning of § 435 Establish HGB.
From here onwards, the Court of Appeal, the driver had sufficient evidence on local conditions, to rely on a favorable outcome, do not show, on which they are based hard Stel-payments.
III. The judgment of the appellate court may then not stand ha-ben; it should be repealed. Since the matter is not ripe for final decision, it is referred back to the Court of Appeal.
If the reopened appeal proceedings arising, that the defendant meets a qualified fault of the loss or damage, Appreciated, the Court of Appeal in another context To-standing, that the intervener the applicant the driver left her ceded by the defendant to seal the uncontrolled disposal, in the context
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an examination of a possible contributory negligence of the intervener the applicant (§ 254 BGB) be taken into account in the development of the damage (vgl. BGH, Judgment of 30. January 2008 – I ZR 146/05, TranspR 2008, 117 Rn. 34; Judgment of 13. June 2012 – I ZR 87/11, TranspR 2012, 463 Rn. 22 = RdTW 2013, 24).
Büscher Schaffert cooking
Löffler Schwonke
Lower courts:
LG Hanau, Decision of 23.05.2012 – 5 The 72/11 -
OLG Frankfurt am Main, Decision of 24.05.2013 – 5 You 138/12 -

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