Published by Manz, Vienna: 1986. Reproduced with their permission.
Univ. Prof. Dr. Peter Schlechtriem [*]
D. The Passing of Risk
1. Sales Involving Carriage (Article 67)
For sales involving carriage, Article 67(1) contains the traditional solution for the passing of risk, namely, that the risk passes to the buyer when the goods have been handed over to the first carrier for transmission to the buyer (Article 67(1) sentences 1 and 2) [348b]; the law does not distinguish between carriage by sea, road or air or by a combination of modes, and it does not split the risk in cases of multimodal transportation. The basic case - where the goods are handed over to the first carrier (Article 67(1) sentence 1) - is frequently modified by special [page 87] contractual provisions, such as trade terms, whereby a carrier is to be given the goods at a particular place for (further) transmission; the transfer of the goods to this carrier - and not to the first - marks the passage of risk (Article 67(1) sentence 2).
The passing of risk is not affected by the fact that the seller retains the transportation documents (or has already handed them over) (Article 67(1) sentence 3). Therefore, retention of the documents for example, to insure payment - and the corresponding right to control the disposition of the goods does not hinder the passage of risk to the buyer. This rule also makes it clear that the passing of risk is independent of the transfer of title.
Although the question was not discussed in Vienna, only the independent carrier was considered a carrier for the purposes of Article 67. Accordingly, if the seller transports the goods with his own personnel, even though he is not obligated to do so, he maintains the risk of loss. The passing of risk in sales involving carriage may therefore depend on the legal structure of the seller's business: If the goods are transported by a division of the firm that is not legally independent of the seller's enterprise, then Article 69 applies to the passage of risk. On the other hand, if the seller uses a legally independent (incorporated) entity that is a subsidiary of the seller's firm, Article 67 applies. As long as Article 69(2) does not apply to the sale, it is my opinion that, where the seller sends the goods using his own transportation organization, it is worth considering the Reichsgericht's solution under § 447 of the German Civil Code, which, due to the difficulties in delimitation in such cases, let the risk pass to the buyer even when the seller's own personnel is employed. The solution may be corrected by denying to the seller the exemptions of Article 79, because his personnel or the transportation organization run by him is not "beyond [his] control". In addition, destruction or deterioration of the goods caused by the seller's employees would surely fall within the meaning of "due to an act or omission of the seller" in Article 66.[page 88]
In some sales contracts involving the carriage of bulk goods, the passing of risk in the sense of Article 67(1) presupposes that the goods lost or destroyed had been clearly identified to the contract in question. Article 67(2) therefore lists the identification of the goods as an additional requirement for the passage of risk. Compared to Article 79(2) of the 1978 Draft Convention, the rule was considerably improved in Vienna. It now contains, for example, the important case of identification to the contract on the basis of freight documents that indicate that the buyer is to receive the goods.[357a] In the case of combined shipment of several goods, the goods may be identified by placing appropriate marks on them (such as the address of the buyer) or by sending notice of dispatch to the buyer, a notice which would be effective upon dispatch. (Article 27). Most importantly, identification can result from sending the buyer a shipping document so precise in its contents that it enables a particular portion of the shipment to be identified to the specific contract. [page 89]
* The author of this book participated at the Conference as a member of the delegation from the Federal Republic of Germany. The views expressed here are personal to the author and do not necessarily represent the position of the F.R.G. or its delegation.(...)
348b. A "forwarder" should be regarded as a "carrier" if he takes over the goods in order to arrange for their further transportation or if he transports them himself. See Dölle (Huber) Article 19 § 9 regarding ULIS.
349. See also Secretariat's Commentary at 201 § 6 (CIF as an example); Honnold, Two Approaches at 161 et seq. (the interplay in detail).
350. See Huber at 454; Roth at 296; Honnold, Risk of Loss at 8-11.
351. See Secretariat's Commentary at 201 §§ 9-10. Here "documents controlling the disposition" are all papers which permit disposition over the goods on the basis of the transportation contract, not just the negotiable documents of title. See Huber at 455. Therefore, the documents concerned here are those that represent claims based on the freight contract concerning the goods. On the other hand, in my opinion, the same expression in Article 58(1) and (2) has a different meaning. See supra at VI.C.1.
352. See Huber at 454; Honnold, Commentary § 368; see also Secretariat's Commentary at 201 § 6 (with regard to the equal treatment of "carrier" and "independent carrier"); A/Conf. 97/C.1/SR.32 at 5 § 29 (= O.R. 405); Sevón, Lausanner Kolloquium at 199.
353. Similar situations can be found with regard to the state trade organizations of socialist countries.
354. See infra at 4.
355. Judgment of Sept. 19, 1919, RG, 96 RGZ 258.
356. But see G. Hager, Die Gefahrtragung beim Kauf, Chapter 3-1 § IIA. (1981) (with detailed references to literature and court decisions in the F.R.G.).
357. It is not, however, necessary for the seller to employ his personnel to perform an obligation to transport the goods, which is precisely what he did not obligate himself to do. Under Article 79(1), the seller would be responsible beyond the mere fulfillment of his duties to dispatch the goods.
357a. See Honnold, Commentary § 371.
358. With respect to the necessity of receipt or dispatch of a loading notice, see generally Judgment of Sept. 19, 1916, RG, 88 RGZ 389; Judgment of Dec. 10, 1917, OLG Hamburg, 1919 Hans. GZ 161. See also A/Conf. 97/C.1/SR.31 at 7 (= O.R. 401) (discussion).
359. See H. Haage, Das Abladegeschäft 33 (4th ed. 1958).
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