Walter P., logistics manager for a large electronics manufacturer, is cursing. A fine notice for 2,800 euros has landed on his desk because a driver for his transport service provider has seriously violated the driving and rest period regulations. "Why should I have to pay for it if my carrier can't manage his scheduling?" P. wonders, and picks up the phone. Two hours later, he has a better idea: in fact, the service provider was only able to meet his deadlines because the driver was on the road an hour and a half longer than prescribed by the Driving and Rest Periods Ordinance. This means that P. shares responsibility, which costs his company a lot of money.
This case is fictitious, but it could easily happen. The reason for this is the confusing abundance of regulations and judgments that simply overwhelm non-lawyers. It is therefore imperative that both carriers and shippers are clear about their rights and, above all, their obligations.
Carriers have a duty
Transport companies can handle this task more easily than their customers – for them, the legal framework has been in place for years. The most important point is that the transporters are responsible for ensuring that the drivers observe the legal driving and rest times and take breaks. These provisions are set out in the EC Regulations, for example Regulation 561/2006. If a company fails to ensure compliance with these provisions, the corresponding administrative offence under the law on driving personnel can be punished with a fine of up to 15,000 euros. It makes no difference whether the company has acted intentionally or negligently.
Caution is also advised when agreeing on a transportation schedule with the shipper. If it is not ensured that the legal driving and rest periods as well as the breaks are adhered to, a fine of up to 15,000 euros per case can also be imposed. Finally, transport companies are obliged to document driving and rest times in full. If they fail to do so, the law on driving personnel applies: the law also stipulates fines of up to 15,000 euros per case for administrative offences in this area.
The second, not insignificant area of law that trucking companies have to deal with is regulated in Section 22 of the German Road Traffic Act (StVO). This section clearly requires that the load, including the devices for securing the load, must be stowed and secured in such a way that they cannot slip, fall over, roll back and forth, fall down or create avoidable noise, even in the event of an emergency stop or sudden evasive maneuver.
Less clear is the requirement 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 fines office complains that the load has not been secured sufficiently, although this is not the case. To avoid a tiresome and protracted dispute, transport companies should have their drivers regularly trained in load securing.
It goes without saying that hauliers must comply with the provisions of Section 31 of the German Road Traffic Regulations (StVO). This states: "The operator of a vehicle may not order or permit the operation of the vehicle or a combination of connected vehicles if he is aware or should be aware that the driver is not suitable to drive independently or that the vehicle, the train, the team, the load or the occupation is not in accordance with the regulationsor that the road safety of the vehicle is compromised by the load or the occupancy.</p> <p>In plain language, this means nothing other than that the articulated or road train must be on the road without technical defects and with the load correctly secured, and that the driver can demonstrate the appropriate qualifications, i.e. the necessary driving license.</p> In addition, the owner of a vehicle can be asked to pay up if his vehicle is overloaded when it is on the road. Finally, the company is obliged to ensure that all drivers are aware of the details of permissible loading.
Shippers are also in the liability boat
These requirements for the transport industry are common knowledge. What is less well known is that legislators and some authorities responsible for issuing fines – and, currently still in some regions, courts – are investigating the shipping industry or pronouncing convictions.
For example, under the new Driving Personnel Act, a shipper can now be fined up to €15,000 per individual case if the transportation schedules contractually agreed between the client and the carrier are not legally compliant. 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.
The current practice of the authorities fining transport companies for violations of traffic safety obligations, overloading or load securing violations also causes less headaches for shippers or those responsible for loading. However, due to the lack of a legal basis, neither the shipper nor the consignor can currently be held liable for a fine for the road safety of the load. The only exception to this is the transport of dangerous goods. Here, additional legal regulations and laws apply.
However, this does not eliminate the problem of liability for the shipper in this area: the Higher Regional Courts of Stuttgart and Celle have issued two contrary rulings, which are usually cited by the authorities imposing fines. In its 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, but in particular at the person who has loaded the vehicle under his own responsibility. In its decision of February 28, 2007 (OLG Celle in: NStZ-RR 2007, page 215), the Higher Regional Court of Celle took the view that the sender of the items to be transported also had the obligation to ensure that the load was secure.
However, both decisions are rejected by the majority of expert lawyers, because they ignore the prohibition of analogy in criminal and fine law (Art. 103 II of the German Basic Law, Art. 7 ECHR). The following arguments speak against an analogous, let alone direct application of Section 22 of the StVO:
- The official title 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") obligations of the driver that go beyond the standardized obligations in Section 22 of the StVO. Accordingly, the obligations mentioned in Section 22 of the StVO can only be the (general) obligations of the driver, but not those of third parties.
- The catalog of fines does not include any offense in which the shipper/consignor is explicitly named as the person responsible.
- It seems absurd to fine someone, and even add points to their driving record, not only for not participating in road traffic themselves but also for not being able to influence the person who actually puts the vehicle on public roads,to have points on their record in Flensburg; the latter would quickly lead to the managing director of a small company losing his license to drive.
In view of this inconsistent – albeit erroneous – case law, shippers/consignors must assess their respective risks in order to avoid getting caught up in proceedings involving fines and points on their driving licenses in Flensburg.
Avoiding fines
Logistics companies can and must minimize the risk of liability/prosecution under administrative fine law by appointing a responsible person for the various areas relevant to administrative fine law. With regular monitoring, at least on a random basis, between the corporate levels, the management or the board of directors can sufficiently ensure that the relevant risks do not arise with the contracted transport company. It is not enough to trust that the contracted transport company will act correctly. If the work of the transport company is monitored by defined control mechanisms, this alone can stop the investigation/prosecution of the logistics company under competition law. To be on the safe side, a compliance regulation should be introduced or corresponding regulations should be included in the quality management system. Walter P. has certainly already done this.
| haulier |
Shipper |
| No agreement on transportation schedules that do not ensure compliance with the legal driving and rest periods |
No agreement on transportation schedules that ensure compliance with legal driving and rest periods |
| responsible for ensuring that drivers comply with legal driving and rest periods |
- |
| responsible for the documentation of driving and rest times |
- |
| responsible for securing the load |
According to the Higher Regional Court of Stuttgart and the Higher Regional Court of Celle: responsible for securing the load |
| responsible for the roadworthiness of vehicles |
- |
| responsible for ensuring that no overloaded vehicle enters traffic |
According to the Higher Regional Court of Stuttgart and the Higher Regional Court of Celle: also jointly responsible for overloading |
| No payment based on distance traveled or quantity of goods |
- |
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.