The most common cases of carrier liability are:
- theft of goods;
- delay in delivery;
- damage or deterioration;
- loss or failure to deliver.
Carrier liability: international consignment note or CMR in road transport
According to the rules of the Geneva Convention regulating international transport, the transporter is liable for the goods carried in case of:
- delay in delivery;
- total or partial loss;
- degradation occurred between collection and delivery.
International consignment note. How it works and what is the use in road transport of goods. Carrier liability
The CMR consignment note is a document certifying that the goods transported are collected by the carrier in a country and are to be shipped and delivered in another country. The document supports the contract of carriage for an international journey, which is drafted by the sender or the carrier and countersigned by the carrying courier. The consignment note is deemed as proof of the agreement on the carriage of goods between the two parties, determines the modality and conditions of the operation performed, which must adhere to the international CMR convention. The uniform regulation stated by the CMR has been largely inspired by the norms regulating maritime and air transport. To sum up, the consignment note regulates the contract for the international carriage of goods by road and intermodal transport, especially regarding the documents used and the carrier’s liability.
General clauses of exclusion of carrier liability
These are the different types of carrier liability:
- strict liability, whereby the carrier cannot produce any proof in their favour;
- presumptive liability iuris tantum, whereby a favourable proof is admitted. Only one reversal of the burden of proof is admitted;
- cases where the classic rule of ex recepto liability will determine the judgement – objective liability for infringement of the contractual obligation towards the goods collected.
According to CMR however, carrier liability disregards the concept of negligence and does not identify with a hypothesis of objective liability, either. Art. 17.2 of the Geneva Convention states cases in which the carrier is relieved of liability.
Liability of the carrier in international transport according to CMR and to the Civil Code and compensation limit
When ascertaining liability of the subject performing the transportation, it is useful to remember the following:
- case-law has equalized gross negligence to intention when it comes to carrier’s liability in international transport;
- the theft of goods can be deemed as fortuitous event only when absolutely inevitable;
- the compensation limit is not active in those situations depending on the carrier’s reckless conduct;
- the application of CMR is only effective when expressly mentioned by the parties in their contractual agreement.
Carrier’s responsibility as per Civil Code art. 1693
The carrier is responsible for loss and deterioration of the goods collected for transport from the moment of reception to that of delivery to the recipient. They can be relieved from liability if able to prove that the loss or deterioration of the goods have been caused by:
- fortuitous event;
- their packaging;
- the nature or faults of the goods themselves.
If the carrier unreservedly accepts the goods to transport, it is presumed that no visible packaging fault is present. This rule configures an ex recepto liability, as it stems from the collection of the good. Legal theory places contractual liability aside the extra-contractual liability. The norm envisages a particularly strict responsibility and states that the relieving proof does not operate negatively. That is to say, the carrier does not have to demonstrate to have used due diligence, but must prove the cause of the loss or deterioration among the ones stated. I.e.:
- delivery to subject other than the recipient;
- fortuitous event or other event completely unpredictable and inevitable by the carrier, e.g. a lightning that sets the goods on fire;
- loss of an easily perishable good which is already partially deteriorated good;
- omitted indication of the goods being deep-frozen and therefore in need of particular care in handling.
How the compensation system works for the carrier
Once the carrier’s objective responsibility for infringement of the obligation towards good in custody is ascertained, they will have to pay the entitled party a compensation. The compensation system set by the regulations on international transport is organised according to the reintegration of the assets of the party damaged by the loss or deperition of the shipment, according to pre-established standards. To this regard, the international legislator introduced rules which were already valid for maritime shipowners’ liability, and the limit of the carrier’s risk to a maximum amount per kilogram of transported goods. The role played by the compensation limit has proved to be pivotal in ensuring dynamic transports and adequate compensations, given the ratification of Conventions of uniform regulations everywhere in Europe.
The value of the carrier’s compensation for the goods
Compensation is calculated according to the value of the merchandise at the time and the place of receipt thereof for transportation, according to a series of standards, i.e.:
- the Stock Exchange Course;
- the current market price;
- the usual value of the merchandise.
A common principle in the uniform regulation is the exclusion of compensation limits when the damage can be ascribed to the dole of the carrier or to their behaviours lacking the minimum professional diligence required and that make them tout court responsible for the merchandise received. In regards to that, when configuring the carrier’s liability in international transport, the CMR refers to causes of exclusion of any compensation limit according to special drawing rights, to dole or negligence. In the Italian experience, the equivalence of dole and gross negligence is well consolidated in the field of goods transport, so that compensation limits will not apply in all those cases of inexcusable negligence or omission to observe the minimum diligence.
The problems related to protecting the owner of the goods in the international transport contract
The parties of an international transport contractare at least three:
- the sender, owner of the goods;
- the shipping agent that organises the transport of the goods;
- the carrier that transports the goods.
However, it is often the case that between the sender and the carrier there is no contractual relationship, because the contract of transport is between the shipper and the carrier – therefore, the owner of the goods would not be able to hold the carrier responsible for any loss or damage to their goods, failed delivery, etc.
Shipping agents’ liability and carrier’s liability
The Court of Cassation has already clarified (Decisions n. 1312 of 21/01/2005; n. 13375 of 08/06/2007; n. 18512 of 25 August 2006; Court of Bolzano, 7th January 2009) that in a transport contract made through a shipping agent, the sender is not entitled to hold the carrier responsible for any damage caused by the failure to perform the contract, as per art. 1705, second paragraph, of the Civil Code, which only legitimates those actions aimed at the satisfaction of credits arising from the exercise of the mandate – therefore excluding actions for damages. The proceedings will nevertheless be possible against the shipping agent, who is to execute the mandate with reasonable care and due diligence. Hence why the owner of the goods cannot hold the carrier responsible for compensation of the lost merchandise, neither will he be able to proceed against the shipping agent for the carrier’s responsibility, considering that the shipper’s responsibility is different and far more limited than the carrier’s.
The owner’s exposure to risk in transport contracts and regulatory vacuum
The Court of Cassation has established that being the shipper an agent without representation of the main contractor, gains the rights and takes the obligations connected to his position and to the one of the sender, since they have a contract for the transportation of goods, and cannot expect the sender to proceed against the auxiliary carrier in case of anomalies in the execution (Decision n. 4928 of 28 February). According to this judgment, to protect the sender, owner of the goods, the shipping agent must proceed against the carrier responsible for the damage. However, entitlement to actions for damages against the carrier is upon those subjects who suffered damage from the loss or deterioration of the goods. The shipping agent must prove to have suffered damage – more often than not, they cannot claim a real right against the carrier. The damage suffered by the owner who relies on a shipping agent who in turn relies on the transport services of a carrier, is not yet entirely solved.
