One of the strengths of e-commerce, the possibility to get delivery at home, is also the heel of Achilles. According to the European Commission, 30% of consumers were confronted with delay in delivery and 8% with packages that were never delivered. Moreover, a substantial amount of goods gets damaged during delivery. EU consumer law lies the risk for such damage, loss or delay with the seller. This paper examines in how far the seller’s liability is back to back with the carrier’s liability and, if a recourse gap exist, how the ambit of this gap can be reduced.
EU Consumer law is highly protective and mandatory, not allowing to derogate from these rules. Since the Consumer Rights Directive 2011 the risk for any loss or damage during the delivery rests upon the seller. According to article 20 of the Consumer Rights Directive, the risk only passes to the consumer when the consumer or a third party indicated by the consumer, has acquired the physical possession of the goods. The Consumer sales Directive contains the remedies available to the buyer in case of loss or damage during the shipment. The priority remedies are reparation or replacement of the damaged package, and this free of any charge. Also in case of delay in delivery, the Directive puts the risk with the seller and entitles the buyer to terminate the contract. Thus, in all situations where loss, damage or delay comes into existence during transport, the seller will have to refund and possibly additionally compensate the buyer (such claim is subject to national law).
Even though the seller can start a recourse action against the carrier, there can be a substantial recourse gap between the seller’s liability exposure and personal damage and the liability exposure of the carrier. European transport law, which is to a large extend equally mandatory, provides only for a limited compensation in case of loss or delay. First of all, in most carriage regimes damage is calculated in an abstract way, based upon the market value of the goods. Consequently, for example reputation damage, that might be extremely great in case of seasonal presents that are not-delivered or delivered late, will not be taken into account. Moreover, often even the market value of the goods will not be fully compensated. Under the Montreal Convention, the carrier’s liability for loss or damage is limited to 19 SDR/kg and under CMR to 8,33 SDR/kg. The compensation for delay is under CMR even limited to the amount of the freight. Consequently, the seller’s liability is often far from back to back to that of the carrier. Moreover, the carrier’s liability is not only limited, it is often also unpredictable: limits can possibly be broken through, but the threshold are often high and in case of multimodal transportation or freight integration the applicable liability regime and thus compensation remains even unknown until after the performance of the contract.
The paper makes three types of recommendations to reduce the recourse gap or at least to make it more predictable. From a practical point of view, first organisational and contractual techniques are suggested that allow parties to limit the recourse gap. As the e-commerce sector contains a large number of start-ups and micro-entrepreneurs without great legal knowledge, in addition suggestions are being made for an EU legal intervention in order to prevent this gap from affecting the viability of e-commerce. The EU didn’t intervene in carrier liability so far. However, as the EU states that “Realising the internal market for online services is one of the key factors in the effort to make the European Union the most competitive and dynamic knowledge-based economy in the world”, also the elimination of obstacles in carriage law to the development of these online service, should be of paramount importance for the EU.
