Ramon Schmidt, managing director of a large electronics manufacturer, curses. Two penalty notices have landed on his desk. One is for 2,800 euros against his logistics manager because a driver from his transport service providerviolated the driving and rest time regulation, and one against him personally for over 50 euros and three "points" because a truck from a transport company allegedly did not take proper load securing measures at the loading ramp.
"Why should I have to pay for it if my carrier has not got his scheduling under control and why should I get points just because a driver who is a stranger to me acts unlawfully?" Schmidt thinks and reaches for the phone. Two hours later he is wiser.
This case is fictitious, but it could easily happen. The reason for this is an unmanageable abundance of regulations and judgments that simply overwhelm non-lawyers. It is therefore imperative that both transporters and shippers and those responsible for loading are clear about their rights and, above all, their obligations.
In the area of driving and rest time regulations, transport companies can initially fulfill their tasks more easily than their customers – for them, the legal framework has been established for years. The most important point is that the transporters are legally responsible for ensuring that their drivers comply with the statutory driving and rest times and take breaks.
However, if the consignor or shipper specifies the transport plan, assigns time slots, loading and unloading times that cannot be adhered to in practice, then under the new legislation the consignor/shipper can be prosecuted for violating the driving and rest periods just as much as the managing director of the transport company.
According to the new law on driving personnel, a fine of up to €15,000 can now be imposed on the consignor in each individual case if the transportation schedules contractually agreed between the client and the carrier are not in compliance with the law.
So if a freight forwarder disputes the "feasibility" of a disposition with reference to the client, who "would set too narrow time corridors", the loading company, i.e. the shipper, will now automatically be investigated. The consequences are foreseeable.
They can only be avoided if the shipper can prove that his schedule has ensured compliance with driving and rest periods as well as breaks. However, there are many ways in which the defense can be mounted here to avoid a fine. For example, it may not matter to the consignor/client whether the haulage company is using a one-driver or two-driver crew. This alone considerably changes the fundamental "feasibility" of the specified transport time plans.
The second important area of legislation is regulated in § 22 of the German Road Traffic Regulations (StVO). This paragraph requires that the load, including the devices for securing the load, must be stowed and secured in such a way that it cannot slip, fall over, roll back and forth, fall down or cause avoidable noise.
This is linked to § 22 StVO with § 31 Abs. 2 of the German Road Traffic Licensing Regulations (StVZO). This states:
"The owner of a vehicle may not order or permit the operation of the vehicle or of a train of interconnected vehicles if he is aware or should be aware that the driver is not suitable to drive independently or that the vehicle, train, combination, load or occupation does not comply with the regulationsor that the road safety of the vehicle is compromised by the load or the occupation.
In plain language, this means nothing more than that the tractor unit or road train must be on the road without technical defects and with the load correctly secured, and the driver must be appropriately qualified. If this is not the case, under certain circumstances the managing director of the freight company may face fines and points on his license.
What is less clear is the respective interpretation of the standards when it says that "the recognized rules of technology must be observed" when securing the load. What this means in detail is highly controversial and depends on the individual case.
Often enough, the fine office criticizes inadequate load securing, although this is not true. In particular, there is a dispute about the sliding friction coefficient to be applied, the alleged discardability of the belts, and so on. To avoid a troublesome and protracted dispute, transport companies should regularly train their drivers in load securing and, in the event of proceedings, have them professionally represented.
The current practice of the authorities to impose fines when transport companies violate their duty to ensure public safety, or when they overcharge or fail to secure loads, is less of a headache for shippers or the parties responsible for loading.
Currently, due to a lack of a legal basis, neither the shipper nor the consignor can be held responsible for the road safety of the load in terms of a fine. Section 412 of the German Commercial Code (HGB) does not apply to a fine procedure, but at most establishes liability under civil law. The only exception is the transportation of hazardous goods. Here, additional legal regulations and laws apply that also make it possible to impose a fine on the sender and that specifically name the "sender" as the addressee in the legal text.
However, this does not entirely eliminate the risk of liability for shippers or consignors in this area: the Higher Regional Courts of Stuttgart and Celle have issued two contrary rulings, which are generally cited by the authorities imposing fines.
In an old and barely reasoned decision of December 27, 1982 (Verkehrsrechtssammlung, volume 64, page 308), the Higher Regional Court of Stuttgart that Section 22 of the StVO is not only directed at the driver and the owner of a vehicle, but also at anyone who is responsible for the proper stowage of the load. In particular, however, to those who have loaded the vehicle under their own responsibility. In its decision of February 28, 2007 (OLG Celle in: NStZ-RR 2007, 215), the OLG Celle took the view that the sender of the items to be transported also had the obligation to load them in a roadworthy manner.
However, the legal opinion of the Higher Regional Court of Stuttgart and Celle is rejected by the majority of lawyers, because they ignore the prohibition of analogy (Art. 103 II of the German Basic Law, Art. 7 ECHR) that applies in criminal and fine law.
The attempts of the fine authorities to present the hardly justified individual decisions of the Higher Regional Courts of Stuttgart and Celle as landmark decisions or "general opinion" must be vigorously opposed. The following arguments speak against an analogous, let alone direct application of § 22 StVO to the loader:
The official heading of Section 23 of the StVO is "Other Duties of the Driver". This wording indicates that Section 23 of the StVO is a supplement to Section 22 of the StVO, i.e. it lists the ("other") duties of the driver that go beyond the standardized duties in § 22 of the StVO. Accordingly, the duties mentioned in § 22 StVO can only be the (general) duties of the driver, but not those of third parties.
In the catalog of fines – in contrast to the dangerous goods law – there is no offense in which the shipper/consignor is explicitly named as the person responsible and possible "perpetrator".
It seems absurd to fine someone, and even worse, to have points on their license, not only for not participating in road traffic themselves, but also for having no influence over the person who actually operates the vehicle in public traffic, but ratherto burden with points in Flensburg; the latter would quickly lead to the withdrawal of the driving license even for the managing director of a small company.
In addition, there is a lack of real options for the shipper to issue instructions, as he risks legal proceedings for coercion if he tries to force the driver of a third-party freight forwarder to act or to "detain" him.
Despite the clear legal situation, the existing – albeit flawed – case law must be included by shippers in their risk management. However, if it comes to court proceedings, fines and points should not be accepted under any circumstances. In our experience, courts usually discontinue proceedings if the legal issues are presented to them in a competent manner.
Logistics companies can and must minimize the risk of liability/prosecution under competition law by appointing a responsible person for the various areas relevant to competition law. With regular, at least random, control between the corporate levels, the management or the board of directors sufficiently ensures that the relevant risks do not occur at the contracted transport company.
If you want to avoid any risk, it is not enough to trust that the contracted transport company will act correctly. If its work is monitored by defined control mechanisms, the logistics company can avoid a fine by ensuring proper delegation and having control mechanisms in place.
If you want to be on the safe side, you should introduce a compliance regulation or include appropriate regulations in the quality management system.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.