The HGB regulates the non-feasibility of carriage in deviation from the provisions of the BGB regarding defaults in performance. Whether carriage can be deemed impracticable does not depend on the fact that carriage is actually definitively impossible, but on the fact that carriage cannot be performed in accordance with the contract.
A distinction is made between a transport obstacle and a delivery obstacle.
An obstacle to carriage exists if - as already explained - carriage cannot be performed in accordance with the contractual agreement. However, if the contractual agreement is taken as the sole basis, this may be a unilateral disadvantage for the carrier. In the individual case, it must be examined whether the carriage is actually (still) possible at all or whether the performance represents a completely disproportionate burden when viewed objectively.
However, the provisions on the impossibility of carriage in the event of an impediment to carriage apply only if carriage has already commenced at the time of the occurrence of the impediment.
An impediment to delivery, on the other hand, exists if delivery is not possible or is delayed indefinitely. The carrier must be prevented from completing the carriage at the delivery point. This is the case, for example, if the carrier cannot identify the consignee, the consignee refuses to accept the cargo or the unloading deadline simply cannot be met.
If there is either an obstacle to carriage or delivery, the carrier is obliged to inform the person authorized to dispose of the goods immediately and to obtain his instructions. The person authorized to dispose of the goods, on the other hand, must issue the necessary instructions without delay. In the absence of such instructions, the carrier shall be entitled to take appropriate measures himself after expiry of a reasonable period of time.
In the event of an impediment to carriage or delivery, the carrier shall be entitled to remuneration and reimbursement of expenses. However, he shall no longer be entitled to the agreed freight. However, the right to remuneration and reimbursement of expenses shall lapse if the impediment originates from the sphere of risk of the carrier. In this case, fault on the part of the carrier is not required.
