IPods and iPhones transported as general cargo – not grossly negligent

A consignment of iPhones and iPods was stolen at an unguarded parking lot outside Nuremburg in Germany. The Nuremburg area is known as a "hot spot" for crimes against road hauliers.

The consignor had deliberately refrained from telling the carrier that the consignment contained high risk goods. The consignor did not wish to "lay bare" the nature of the goods, because of the risk of theft. For the specific carriage, the consignor had paid for the transport of general cargo – in other words, he had not paid for special precautions to be taken.

The goods were wrapped in opaque black plastic. The carrier knew that the consignor traded electronics but did not know what kind of goods were to be transported. From a delivery note which the driver received when he took over the goods, it was, however, evident that the goods were iPhones and iPods, which usually are handled as high-risk goods.

The Supreme Court: Driver's receipt for the goods does not change the contract of carriage

Like the Maritime and Commercial Court, the Supreme Court concluded that the carrier did not act grossly negligently and thus was only obliged to pay damages corresponding to the limited liability amount.

The Court emphasized the fact that the consignor deliberately refrained from informing the carrier about the nature of the consignment. The carrier was not directly informed that special precautions were to be taken and nor was there anything else – e.g. the carrier's knowledge of the consignor's firm – that substantiated that the consignment contained goods with a particularly high risk of theft.

As the carrier had not received instructions to take special precautions, the court found it to be justified that the consignment was treated as general cargo.

The Court also found that the driver's delivery note did not change the original framework agreement providing that the consignment was to be treated as general cargo. A driver's signature on a delivery note cannot be deemed as anything more than a confirmation of the receipt of a consignment with the indicated measurements and weight. As a general rule, the carrier is therefore not obliged to treat the goods as high-risk goods based solely on the information given to the driver. This applies all the more so when it has been agreed that the goods are to be treated as general cargo.

IUNO's opinion

The consignor must give the carrier notice of the nature of the goods. If the carrier is not informed otherwise, he may assume that the consignment contains general cargo, which does not require any special precautions. If the consignor had informed the carrier that the goods were high risk goods, there would have been increased precaution requirements.

In case of failure to inform the carrier of the nature of the goods, even if it is for security reasons, one should be aware that even iPods and iPhones will be considered general cargo in case of loss.

[Supreme Court judgment rendered on 21 February 2013, case no. 3/2011]