Episode 50: Who is responsible for loading in companies?

At seminars, events or meetings in companies, one question is discussed as frequently as it is controversially, even though the rules are relatively simple.

“What about responsibility?”

It often seems to me that the reason for this is that some people don’t want to admit or push away unpleasant truths/facts.

However, this only works to a certain extent. In the area of load securing, the bar is not set at €60 and a point in Flensburg, but at the criminal offense of negligent bodily injury or, worse still, negligent homicide. These offences could arise as a result of a lack of or inadequate training of employees, inappropriate organizational structure, non-existent procedural instructions and/or failure to carry out checks.

The main difference is, among other things, that it is no longer the central fines office that reports the case, but a public prosecutor. He searches for the person responsible and questions all those involved until he has found him. In quite a few companies, only the managing director remains because he has not correctly implemented §130 OWiG “Violation of the duty of supervision in companies and businesses”.

In the following article, I would like to present a few aspects and correlations in the hope that every management level understands which obligations must be fulfilled in order to act in compliance with the law.

If you want/need to take a closer look at the subject, I would recommend the book opposite.

Even if the title does not suggest it, the supervisors and responsible persons are meant, because the load securing officer is an advisor and not a responsible person.

You can find more information here.

First of all, it is important to know that two areas of law play a role in load securing, which are often confused and mixed up. Namely commercial law (HGB or CMR) and public law (StVO). This can have fatal consequences. It can be illustrated most clearly by the “ex-work” business agreement, i.e. the classic collector situation.

The sales department concludes a purchase contract with the customer on the basis of commercial law and agrees that the customer will collect the goods themselves or arrange for them to be collected. The risk is transferred to the customer when the goods are made available and when the delivery documents are signed, stating something like “Goods accepted correctly”. This means that the supplier no longer has any obligations because the purchase contract has been concluded. Many people now think they can sit back and relax.

But there is more.

At the beginning of a transport, the goods are placed on or in the means of transport. In this example, this is the task of the driver. For collegial reasons, the forklift driver helps out. In doing so, he acts as the customer’s vicarious agent.

What is forgotten is the fact that the obligation to secure loads is regulated by public law (§22 StVO) and this applies regardless of the ownership of the goods. With the EX-Work regulation, the distributor has handed over the claim to the customer, but not the obligation to secure the load or to check it. This remains with the loading company.

Regardless of any contracts, the entrepreneur/managing director or operations manager sits opposite the legislator to represent his rights and obligations. This responsibility is reserved to him and he cannot delegate it. What can be delegated is the fulfillment of duties. With this delegation, the person who accepts this transfer assumes their own responsibility. This is not the same as that of the managing director, but relates exclusively to the fulfillment of the delegation.

In load securing, the duty to do so can be delegated to a logistics manager, for example, who is then responsible for fulfilling this duty. However, the managing director is only exonerated if he makes this delegation in the form of a written “order” in accordance with §9(2) OWiG “acting on behalf of another”.

“(2) If someone is authorized by the owner of a business or another person authorized to do so

1. instructed to manage the business in whole or in part, or

2. expressly instructed to carry out tasks on his own responsibility which are incumbent on the owner of the business, and acts on the basis of this instruction, a law according to which special personal characteristics justify the possibility of punishment shall also apply to the authorized representative if these characteristics are not present in him, but in the owner of the business. “

One of the most common reasons why things go wrong in practice is that, on the one hand, there is no “explicit (written) mandate” and, on the other, the delegatee is not allowed to act “on their own responsibility”. If these decisive characteristics are not present, the managing director remains responsible.

As long as the punishment remains in the area of administrative offenses, the management often gets off scot-free because the control authorities are satisfied with the truck and forklift driver, although the legal situation would allow a different punishment. However, if a criminal offense is found, a public prosecutor investigates and the situation looks completely different. Then, for example, the measures taken to prevent the offense or at least make it unlikely will be reviewed.

The basis for such checks is then §130(1) OWiG “Violation of the duty of supervision in companies and businesses”. “Anyone who, as the owner of a business or company,intentionally or negligently violates the fails to take supervisory measureswhich are necessary to in the business or company to prevent breaches of obligationswhich apply to the proprietor as such and the breach of which is punishable by a penalty or fine, acts in breach of the regulations if such a breach is committed, which would have been prevented or made considerably more difficult by proper supervision. The necessary supervisory measures also include the appointment, careful selection and monitoring of supervisors.”

The entrepreneur/managing director or operations manager concerned must now explain what considerations he has made and what measures he has taken to prevent the incident. This is referred to as “gross organizational negligence” if, for example, load securing is not checked at all and defects cannot be detected as a result.

The following points can be summarized from commentaries on relevant judgments. The duty of supervision is fulfilled by:

– Creation of a suitable company organization and definition of tasks
– Transfer of tasks to suitable persons
– Proper instruction of the recipients of instructions
– Appropriate monitoring of progress (documentation/records/reports)
– Monitoring of the recipients of delegations (random checks) (source, inter alia, decision of the Higher Regional Court of Jena of 2 November 2005 – 1 Ss242/05)

This legal situation can also be illustrated with an excerpt from a hearing form:

“The obligation to secure the load of a vehicle in accordance with §22 StVO applies not only to the driver and owner but also to any other person involved in the loading process. This also includes the consignor of the load. By knowing the decisive characteristics of the load, such as weight, slip resistance and material, it is the consignor who can most reliably assess the securing of the load. The person responsible is the person in your company who has been assigned effective and independent responsibility for monitoring the loading activity. As a rule, this is not the worker carrying out the work. If no effective transfer of responsibility has taken place, the managing director is responsible .”

This makes it clear that the fulfillment of duties always lies with the entrepreneur/managing director or operations manager. Only by organizing processes in a legally compliant manner and correctly delegating duties to the next management level can he relieve himself. This is one of the most important tasks of the management.

I will answer the question of “and how do I do that?” in the next post.

I hope that everyone who reads these articles stays on the ball and eagerly awaits the next post.

Yours, Sigurd Ehringer

Sigurd Ehringer

✔ VDI-zertifizierter Ausbilder für Ladungssicherung ✔ Fachbuch-Autor ✔ 8 Jahre Projektmanager ✔ 12 Jahre bei der Bundeswehr (Kompaniechef) ✔ 20 Jahre Vertriebserfahrung ✔ seit 1996 Berater/Ausbilder in der Logistik ✔ 44 Jahre Ausbilder/Trainer in verschiedenen Bereichen —> In einer Reihe von Fachbeiträgen aus der Praxis, zu Themen rund um den Container und LKW, erhalten Sie Profiwissen aus erster Hand. Wie sichert man Ladung korrekt und was sind die Grundlagen der Ladungssicherung? Erarbeitet und vorgestellt werden sie von Sigurd Ehringer, Inhaber von SE-LogCon.