The case: The seller based in Italy sells its goods on the basis of Incoterms 2010 "ex works" to a company based in France. However, the goods are to be delivered to a recipient in Great Britain. The buyer organizes the collection of the goods in Italy and the transport to the recipient in Great Britain. After delivery of the goods, the seller realizes that he has most likely been taken in by a fraudster. The supposed buyer company knows nothing about the order, the recipient has disappeared and can no longer be contacted. The seller therefore turns to the forwarding company entrusted with organizing the transport and demands compensation from it on the basis of the CMR. The plaintiff claims that the driver made a mistake during delivery.

The answer: No, says the Regional Court of Saarbrücken in its ruling of June 27, 2018, Ref. 17HK O 9/16 (the decision is final), such a "secondary liability" of the forwarding company does not exist. A claim by the seller is already ruled out due to the seller's lack of active legitimacy. The regulations on international road transport (CMR) are exhaustive and only the persons explicitly named therein can assert claims in the cases regulated therein. The sender, who appears in various places in the CMR as a claimant, is, however, according to the relevant opinion, only the respective contractual partner of the carrier. This was not the plaintiff in the present case. A comparison with the position of the consignee, who as a rule is also not the contractual partner of the carrier, is ruled out. This is because the consignee is explicitly named in the CMR as another party entitled to claim. A "non-contractual consignor", on the other hand, does not appear in the CMR. An unintended regulatory gap is not discernible. Recourse to national law is not possible, as this would contradict the primacy of the CMR.

Practical implications: The decision is interesting for both shippers and forwarders/carriers. On the seller's side, it is important to pay more attention to who you are contracting with, especially when dealing with new customers, and to make appropriate inquiries to ensure that you do not fall for a fraudster, as happened in this case. At the same time, you should be aware of the rights and obligations associated with the chosen Incoterm and what consequences this may have in the event of damage. Conversely, for the commissioned freight forwarder/carrier, the contractual agreements in such a case constellation can also have an influence on the assessment under transport law.
can also have an influence on the assessment under transport law. He can therefore successfully defend himself against a claim by third parties not involved in the contract.

About the author:
Lawyer Carsten Vyvers (40) is a trained forwarding agent. The specialist lawyer for transport and forwarding law works at the law firm Arnecke Sibeth Dabelstein Rechtsanwälte Steuerberater Partnerschaftsgesellschaft mbB in Frankfurt am Main. He advises companies in the transportation, forwarding and logistics sector.