Transportation law
Being right: That's how it is - settled is settled
It is not uncommon for goods in the transportation business not to reach their destination, or to reach it damaged. As a gesture of goodwill, out-of-court settlements of damages are often granted. Do these have a settlement effect if they are accompanied by a reference to the settlement of further claims?
The case: Due to the loss of or damage to various consignments, the sender demands compensation from the carrier. After several conversations and email discussions, the claimant is sent a document entitled "Settlement details" and asked to complete it. Among other things, the document states that the carrier is offering an amount in excess of the minimum liability under national transport law to settle all claims associated with the transportation in question. The signature line is also preceded by the statement that payment of this amount will settle any claims against the carrier and its affiliated companies. The sender signs the document and returns it to the carrier. After the sender has received the agreed claim settlement from the carrier, he reports the claims to his transport insurance company. After the claim has been settled, the insurance company now asserts claims for damages against the carrier. The carrier refers to the final settlement of the claim that has already taken place.
The answer: The carrier rightly argued that the damages had already been finally settled, decided the Regional Court of Darmstadt (judgment of June 5, 2018, Ref. 12 O 76/17). The claims settlement was effective. This also included the final settlement effect in favor of the carrier or at the expense of the claimant. The latter had not only spoken to the carrier several times beforehand, but had also signed the corresponding document. There was also a mutual concession, as the carrier had paid more than required by law.
Practical tip: Even if it is almost customary in the industry from the point of view of customer loyalty to settle a claim out of court as a gesture of goodwill, even if the carrier's responsibility for the damage is unclear, such a payment should not be made prematurely. In most cases, attempts are made at a later stage of the proceedings to interpret such goodwill payments as an admission of guilt. To avoid such risks, it is advisable - as in this case - to draw up a short settlement declaration. This prevents you from having to "pay twice" in the end. Whether you should actually offer more than the statutory basic liability of 8.33 special drawing rights* per kilogram remains to be seen. In particular, if contributory negligence on the part of the sender causing the damage also comes into consideration, the waiver of such an objection is also sufficient to affirm that the carrier has given way.
*Special drawing right: artificial unit of account of the International Monetary Fund, which is calculated to the day.
About the author:
Lawyer Carsten Vyvers (39) is a qualified 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.
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