OLG Frankfurt am Main, 24.05.2013 – 5 U 138/12
1. For the point in time where the „goods are taken over“ according to art. 17 para 1. CMR, the end of the loading process is decisive.
2. Goods placed on the cargo area of an open truck are regularly considered to be in possession of the freight carrier and not in possession of a third person, on whose premises the truck stands or who expects the cargo or unloaded it.
Art. 17 CMR
1. The carrier shall be liable for the total or partial loss of the goods and for damage thereto occurring between the time when he takes over the goods and the time of delivery, as well as for any delay in delivery.
2. The carrier shall, however, be relieved of liability if the loss, damage or delay was caused by the wrongful act or neglect of the claimant, by the instructions of the claimant given otherwise than as the result of a wrongful act or neglect on the part of the carrier, by inherent vice of the goods or through circumstances which the carrier could not avoid and the consequences of which he was unable to prevent.
(a) Use of open unsheeted vehicles, when their use has been expressly agreed and specified in the consignment note;
(b) The lack of, or defective condition of packing in the case of goods which, by their nature, are liable to wastage or to be damaged when not packed or when not properly packed;
(c) Handling, loading, stowage or unloading of the goods by the sender, the consignee or person acting on behalf of the sender or the consignee;
(d) The nature of certain kinds of goods which particularly exposes them to total or partial loss or to damage, especially through breakage, rust, decay, desiccation, leakage, normal wastage, or the action of moth or vermin;
(f) Insufficiency or inadequacy of marks or numbers on the packages;
(g) The carriage of livestock.
5. Where under this article the carrier is not under any liability in respect some of the factors causing the loss, damage or delay, he shall only be liable the extent that those factors for which he is liable under this article have contributed to the loss, damage or delay.