Carrier's Liability for Loss or Damage in International Carriage of Goods by Road

It is the cornerstone of the law governing the international carriage of goods by road, from which all other legal relations derive. The Convention applies not to domestic but to international carriage of goods by road. It follows that its exclusive application to domestic carriage is ruled out.1 As against national legislation, the Convention operates as lex specialis. Its precedence is established by Article 10 of the Constitution of the Czech Republic. The Convention itself then asserts that precedence in Article 41, the so-called blocking provision, which renders void any contractual stipulation derogating from it directly or indirectly.

The carrier's liability for damage is governed, among other provisions, by Chapter IV of the CMR Convention. Under the individual provisions of the Convention, that liability may be summarised as follows:

Liability of the carrier for delay in delivery under Article 19 of the CMR Convention

Liability of the carrier for failure to collect a cash-on-delivery charge under Article 21 of the CMR Convention

Liability of the carrier for the loss of documents accompanying the consignment under Article 11(3) of the CMR Convention

Liability for loss of or damage to the consignment under Article 17(1) of the CMR Convention

The carrier's liability arises neither on conclusion of the contract of carriage nor on issue of the consignment note, but only when the sender hands the consignment over to the carrier,2 and it continues until the consignment is delivered. Until the moment of taking over, all acts of the parties involved are governed by national law. Taking over changes the legal regime, and from that moment the parties' conduct is governed by the Convention. Taking over is to be understood as taking over for the purpose of performing the carriage, not for ancillary activities such as storage. Storage may of course come first, but a clear distinction must be drawn between goods stored under an agreement of the parties for longer-term storage and goods stored only for the time strictly necessary before the carriage itself.3

Under Article 3 of the Convention, the carrier is liable for all persons who take part in the carriage on its behalf, as though the acts and omissions of those persons were its own. That provision entitles the principal to pursue its entitlements against its contractual partner irrespective of whether that partner performed the carriage itself or entrusted performance to others.4

Practice to date has revealed difficulties in the interpretation of Article 17. The decisions of individual States have not so far been harmonised and reveal two competing approaches to the carrier's liability. The first proceeds from the carrier's absolute liability, leaving it to the carrier alone to prove the contrary. The second rests the carrier's liability on negligent conduct.

The words of Article 17(2), "circumstances which the carrier could not avoid and the consequences of which he was unable to prevent", mean that it is for the carrier to prove that it faced force majeure (vis maior) or an unforeseeable accident. The article rests, however, not only on accident and force majeure but also on human fault - fault not attributable to the carrier. The term force majeure is usually associated with a natural event or disaster, but in a broader legal context it may also cover intervention by the State, a strike, a road accident and similar events. Force majeure is thus understood as something unforeseeable which the carrier could not by its own efforts have prevented. It must be an event coming from outside in some extraordinary manner. It cannot, for instance, be an accident caused by the technical condition of the carrier's own vehicle or by the driver's state of health.5

As to theft of the consignment from the vehicle or theft of the whole vehicle, the carrier is liable for this too where a member of the crew or another of its employees took part in the theft. The carrier is likewise liable for negligence on the part of the crew during the carriage which results in the theft. Nor is theft treated as vis maior where it can in some way be prevented, or where at least every possible effort could have been made to prevent it. Theft of goods from an unguarded lorry is avoidable and therefore does not constitute an unavoidable event. Only where the carrier has secured the vehicle against theft to the point that nothing further could have been done can its conduct be regarded as sufficient ground for discharge from liability.

The carrier must at all times proceed with due care and is regarded as a professional possessing the ability and the means to prevent any damage from arising. That consideration supports the second approach, which rests liability on negligence. If the carrier wishes to be discharged from liability where damage occurs, it must therefore prove that the damage arose through circumstances which no diligent carrier could have prevented or avoided.6 The Convention nevertheless focuses on the outcome of the carrier's activity, the degree of its fault being only a secondary factor. Even so, the carrier is afforded a range of means of proving its innocence, or rather of proving that its degree of fault in the damage is negligible or non-existent.

1 NOVÁK, R. Mezinárodní kamionová doprava plus. Praha, 2003, p. 120

2 KROFTA, J. Přepravní právo v mezinárodní kamionové dopravě. Praha: Leges, 2009, p. 108

3 ROUBAL, V. Přepravní smlouva v mezinárodní silniční dopravě: Výklad a texty Úmluvy CMR. Praha: Česmad Bohemia, 2007, third, supplemented edition, pp. 50-51

4 ROUBAL, V. Přepravní smlouva v mezinárodní silniční dopravě: Výklad a texty Úmluvy CMR. Praha: Česmad Bohemia, 2007, third, supplemented edition, p. 11

5 KROFTA, J. Přepravní právo v mezinárodní kamionové dopravě. Praha: Leges, 2009, p. 120

6 ROUBAL, V. Přepravní smlouva v mezinárodní silniční dopravě: Výklad a texty Úmluvy CMR. Praha: Česmad Bohemia, 2007, third, supplemented edition, p. 53