7. Symposium of Lawyers Members of the IRU Legal Assistance Network Saint Petersburg, 30. April 2008 Responsibility of the consignor/principal in the framework of the instructions given to the transport operator Detlef Neufang Lawyer Federal Association for Transport, Economy and Logistic – BWVL - GERMANY

Responsibility under administrative or penal law Principle: A person can only be punished in accordance with personal guilt Crimes and offences can be committed by intent and/or, depending on the regulation, by negligence. Most of the relevant laws and regulations address directly driver and transport operator, only a very few apply to consignor and/or shipper.

Responsibility under administrative or penal law The rules mostly impose duties and obligations to the adressees independently, and every adressee is independantly oligated to fulfill the legal requirement. Driver, Transport operator and – if the law applies to him – consignor/shipper are personally responsible.

Aiding and abetting Even if the rule does not apply to consignor/shipper, he can be punished nonetheless, if he and the driver both acted intentionally to violate the rule (aiding and abetting/incitement) Penal law : §§ 26, 27 criminal code (Strafgesetzbuch- StGB) Administrative law: § 14 Regulatory Offences Act (Ordnungswidrigkeitengesetz-OWiG)

Examples: Excess load of vehicle The rule - Regulation on Admission for Road Traffic (Straßenverkehrszulassungsordnung-StVZO) – applies only to driver and registered user of the motor vehicle, not to the shipper. If shipper and driver both positively know, that the cargo will exceed the permissable maximum weight, they will both be sentenced (OLG Stuttgart, DAR 1990, 188). If the driver or transport operator acted in good faith that the cargo is not too heavy for the truck, they will be accused for having committed the offence by negligence. The case will be dismissed, if the error about the weight of the cargo is inevitable. Penalty: %: 30 € (driver), 35 € (registered user of the vehicle)  %: 50 € + 1 point (driver), 75 € + 1 point (r.u.)  ……..  > 30%: 200 € + 3 points (driver), points (r.u.) In case of a responsibility of the consignor/shipper under the aspect of aiding and abetting, he will be sentenced like the driver (penalty and points)

Examples: Stowage of the good Driver is always responsible for stowing and securing the cargo correctly on the truck, §§ 22, 23 StVO –If he had trusted in a wrong information of the consignor/shipper, he still can be accused for having acted negligent, unless his mistake has been inevitable Registered user of the vehicle/Transport operator is responsible according to § 31 II StVZO. –Justification possible, when driver was well trained, sufficient means for securing the cargo were on board the vehicle and the truck was not loaded on the premises of the transport operator. Incorrect information by consignor can be another argument of justification.

Examples: Stowage of the good Apart from driver and transport operator, the shipper is responsible for securing the cargo correctly, § 22 StVO (OLG Celle, VRS 112, 289f). –Justification possible, when obligation to secure the cargo was completely assigned to transport operator by (written) contract § 22 StVO does not apply to consignor who is not - at the same time – shipper of the goods. Penalty: 75 € + 3 points

Examples: Stowage of the good In case of an accident, the prosecuter will start investigatens against driver, transport operator and shipper Possible accusations could be: –creating a traffic hazard, § 315 c StGB/Criminal Code –physical injury commited by negligence, § 229 StGB/Criminal Code –involuntary manslaughter, § 222 StGB/Criminal Code

Examples: Responsibility of the consignor for driving time regulations In general, work must be scheduled in such a way that drivers are able to comply with the national and/or EC driving regulation or AETR. According to the Law on Bus and Truck Crews ( § 8 a Fahrpersonalgesetz-FPersG) consigners are – besides others – obligated to ensure that contractually agreed transport schedules respect the regulation 561/06. (relevant for just-in-time-concepts). Consignors can only be punished if they had acted intentionally; the law does not apply to a consignor‘s violation of the driving and rest times by negligence. In case of aiding and abetting and incitement, consigners are also responsible for violating national driving and rest time regulations or AETR.

Additional obligations of the consignor § 7 c GüKG/Road Haulage Act: The consignor commits an offence, if he knows or should know that the transport operator who is actually transporting the goods (even if it is a subcontractor) holds no or no valid authorisation for this transport. (Controls of documents by consignor are required). Penalty up to €

Additional obligations of the consignor § 7 c GüKG/Road Haulage Act: If the transport operator in charge is a Germany based undertaking, the consignor is also responsible for the driver‘s legal employment. (Spot checks neccessary) Penalty: up to €