The clause in the General Terms and Conditions of a consignor according to which loaded vehicles must be parked under surveillance or where sufficient security is guaranteed does not impose any duty of care on the carrier that goes beyond what is required by law.
This requirement is formulated so openly that it can also be understood in a way that does not go beyond what is already required of a carrier by law. According to this, the greater the risks associated with the carriage of goods, the greater the demands to be made on the safety measures to be taken. Of considerable importance in this context is whether the transported goods are easily marketable and thus particularly at risk of theft, what value they have, whether the carrier should have been aware, due to a particular risk situation, that the theft of the transported goods could occur if the loaded transport vehicle is parked unguarded, and what concrete possibilities there are for a secured interruption of the journey in order to comply with prescribed pauses.
Carriers are therefore already obliged by law to park a loaded truck in a safe place. This applies especially if there is an additional contractual agreement to this effect (also in the general terms and conditions).
In practice, however, this should not infrequently cause difficulties, as there are only an insufficient number of guarded parking spaces in many regions in relation to the constantly increasing volume of traffic.
Source: decision of 23.07.2020 – I ZR 119/19