Other
Liability for the Danger of Delay in the Carriage of Goods by Sea
Vesna Polić Foglar
Abstract
The plaintiff is the transport insurer of a policyholder which equips all vehicles manufactured by car manufacturer V. in Mexico with cockpit modules. The defendant, a logistics company, in a framework contract, undertook to transport the parts necessary for the assembly of cars by land to Bremen, load them into a container there, and send them by sea to Mexico according to precisely defined weekly schedules. However, one voyage by sea could not be carried out on time, about which the defendant informed the policyholder before the delay occurred. The defendant refused to organise replacement air transport, necessary to avoid the occurrence of delays and a stoppage in car production. The policyholder organised the air transport itself and asked the defendant to reimburse the cost. For the German Supreme Court, it was not important whether the parties concluded separate contracts for land transport to Bremen and for sea carriage to Mexico, or whether they concluded a single contract on multimodal transport for the whole journey.
Since it is known that the delay occurred on the maritime leg, maritime law applies. This law does not contain special provisions on liability for delay, so the general regulations on delay apply. The defendant argued that the debtor is in arrears only after the creditor’s notice is sent to him after the due date. In this case, the insured did not send such a notice. The purpose of the notice is to enable the debtor to see that non-fulfilment would have consequences and to encourage him to fulfil the obligation immediately. In this case, the purpose of the notice was already achieved by concluding a contract with the obligation of weekly deliveries of equipment, so the Court took the position that a special notice after the due date was not necessary. It is the obligation of the injured party to prevent or reduce the damage. The costs of air transport were necessary to prevent much greater damage.
These costs, as well as the damage they avoided, are considered compensable damage from delay. Against this obligation of the injured party stands the duty of the party which caused the damage to compensate the injured party for the costs incurred to mitigate the damage. Based on this general principle, the costs of preventing damage must be compensated according to the same basis of the claim, according to which the avoided damage would have been compensated. If the policyholder had failed to organise the air transport and thereby allowed the delay damage to occur, the defendant could have complained that the policyholder had failed to prevent or reduce the damage. Air freight costs, although incurred before the delay occurred, are caused by the danger of delay. Therefore, it was not necessary to determine whether the policyholder ordered air transportation only after the defendant was already in delay.
If, as in this case, measures to prevent or reduce damage are sought as damage caused by delay, it does not matter whether these measures were taken only after the occurrence of the event from which responsibility arises or earlier as a precautionary measure.
Keywords
Hrčak ID:
324044
URI
Publication date:
17.12.2024.
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