The case
The fraudsters posed as employees of a company based in France and ordered flat screens worth around 100,000 euros from a German retailer by email. In the course of the criminal investigation, the e-mail account used was traced to a person based in the Ivory Coast. The screens were to be delivered to a recipient in the UK. The retailer commissioned a freight forwarder for this purpose, who in turn used a carrier.

The carrier transported the screens to the UK. On arrival at the delivery address, the carrier's truck driver discovered that the recipient company did not exist. Instead, there was a self-storage warehouse there. People were waiting outside the warehouse who claimed to be employees of the recipient company and were able to present the sales invoice and delivery bill from the German dealer. The driver handed over the screens to these people, who also signed the consignment note for the recipient. The fraudsters confirmed receipt of the screens by e-mail and then disappeared. The invoice issued by the retailer (seller) is not paid by the company based in France, stating that it did not order the flat screens. The German retailer claims damages from the carrier for the loss of the shipment and incorrect delivery. With success?

The case law
The Higher Regional Court of Koblenz has rejected the carrier's liability for damages (judgment of 09.05.2019 - 2 U 256/18). The loss of the shipment had not occurred during transportation in the care of the carrier. The seller had already committed fraudulent misrepresentation (of identity) when concluding the purchase contract. The carrier used by the freight forwarder had delivered the consignment to the authorized recipient at the commissioned place of delivery. There was no case of false delivery. In contrast to a so-called false delivery, in which the carrier is deceived about the authorization to receive the goods, in the case of a fraud against the sender, the delivery takes place with the handover to the person named by the sender, even if their identity is faked.

In a similar case, the Higher Regional Court of Frankfurt also denied liability on the part of the freight forwarder (judgment of 11.09.2019 - 5 U 196/18). The disputed question of whether the shipment was lost while in the care of the freight forwarder did not need to be decided. This is because there was no damage to be compensated. The seller's loss does not lie in the loss of the consignment but in the fact that he does not receive the consideration agreed with the buyer, i.e. the purchase price. This loss would also have occurred to the seller if the consignment had been delivered to the correct recipient.

The HansOLG Hamburg also denied liability on the part of the freight forwarder - albeit on different grounds (judgment of 15.08.2019 - 6 U 250/15). Although it assumed a loss of the consignment in the care of the freight forwarder due to incorrect delivery, it denied liability due to fault on the part of the shipper (seller) in accordance with Art. 17 Para. 2 CMR. The liability of the freight forwarder does not apply if the person entitled to dispose of the goods is at fault. Fault lies in the fact that the sender facilitated an incorrect delivery because he did not provide sufficiently precise information to identify the consignee.

About the author:
Bernhard Kahl has been a lawyer at the law firm Schnebbe Heuser & Partner in Hamburg since 2012. He previously worked for an international freight forwarder as an in-house lawyer for several years. His practice focuses on freight forwarding and transportation law, in particular international air freight law.