Carrier not liable for French identity theft

A Danish company that sells cosmetics sold a consignment of goods to a French chain of department stores. The goods were carried to France and when the driver arrived at the designated place of delivery, it did not look as the driver expected. The carrier contacted the seller, who in turn contacted the buyer. The buyer advised of another address and the seller guided the carrier there.

The driver spoke with the employees at the new address and was in touch with the seller, sending photos of the new place of delivery. The carrier delivered the goods and got a receipt for the delivery.

Afterwards, the seller realized that they had been defrauded as the buyer did not pay for the goods. The perpetrators had committed an identity theft by acting as if they were employees of the French department stores. The seller believed that this could have been avoided if the carrier had been more careful and claimed a recovery.

However, the fraud had taken place even before the carriage had begun and the driver had taken precautions by contacting the seller, when the first place of delivery did not appear right. The carrier also argued that the seller had accepted the delivery of the goods at the new address

Carrier not liable

The court found that the goods were lost due to the fraud, and that this had occurred already when the agreement to sell the goods was made between the seller and buyer.

Nevertheless, the liability of the carrier had to be assessed under the CMR. Then the carrier is liable for loss of the goods until it was delivered. The carrier can only escape liability if the carrier shows, for example, that the loss occurred as a result of the seller’s own instructions or due to circumstances which the carrier could not prevent.

Since the carrier had reacted when the first place of delivery seemed suspicious and informed the seller about how the matter developed and as the seller had accepted the new place of delivery, the court concluded that the carrier was entitled to rely on the instructions he got. The carrier could not in the circumstances realize that this was a case of fraud from the place of delivery alone. The court therefore concluded that the loss had occurred due to the instructions of the carrier and circumstances which the carrier could not prevent. It followed that the carrier was not liable.

IUNO’s opinion

The case shows that although the fraud was in full swing when the goods were loaded on to the trailer and there was no true buyer that the carrier could deliver to, the carrier’s liability fell under the scope of the CMR. Then the carrier has to prove that it is not liable for the loss. What it takes to do that depends largely on the facts when the delivery is made. IUNO recommends that both parties – sellers and carriers – are very alert about who they sell to – and to whom they deliver.

[Sø- og Handelsrettens judgement of 7. juli 2022 i sag BS-43209/2021-SHR]