On the qualified negligence of the carrier in the case of theft from a truck parked overnight at an Italian rest stop; the validity of a general terms and conditions clause according to which the driver may only drive to guarded parking lots

Within the framework of transport contracts, the carrier is responsible for the security of the transported goods. This includes not only proper transportation but also protection against potential damage such as theft. Jurisprudence from the Munich Higher Regional Court makes it clear that the carrier's security precautions must be consistent with the specific risks of the transport. Of particular importance in this regard is the extent to which clauses in general terms and conditions (GTC) are effective and what requirements must be placed on the carrier with regard to theft protection.

Judgment of the Higher Regional Court of Munich

A provision in the general terms and conditions according to which the driver may only drive to guarded parking spaces constitutes a surprising clause within the meaning of Section 305 c Paragraph 1 of the German Civil Code (BGB) and therefore does not become part of the contract if the carrier was not informed of this provision either in the transport order or verbally before the conclusion of the contract.

The security precautions that the carrier must take to fulfill its contractual obligation to protect the goods entrusted to it from theft during transport depend on the circumstances of the individual case. The decisive factor is whether the measures taken meet the standards of care required for the transport to be carried out. The greater the risks associated with the transport of goods, the higher the demands placed on the security measures to be taken. Of considerable importance in this context are whether the transported goods are easily usable and therefore particularly vulnerable to theft, their value, whether the carrier had to be aware of the particular risk, and what specific options existed for a secure break in the journey in order to comply with prescribed rest periods.

If the freight carrier is unaware that they are transporting goods at risk of theft and the transport order only refers to "groupage," they cannot be expected to implement increased security measures. If they take their rest at a rest stop that is open throughout the night and choose a parking space in an area where several trucks are parked side by side, they cannot be accused of aggravated negligence.

Conclusion

The decision of the Munich Higher Regional Court shows that clauses in general terms and conditions that require the driver to use only guarded parking lots are invalid if they were not communicated to the carrier prior to the conclusion of the contract. With regard to theft during transport, the carrier is only liable if it was aware of an increased risk of theft or if it failed to take appropriate security precautions in a dangerous situation. However, if the carrier is not informed of the risk of theft and chooses a suitable rest area to comply with rest periods, it cannot be accused of qualified negligence.