There are special risks, which are set out below, the presence of which may exonerate the carrier. If the carrier shows on the balance of probability, that damage could have been due to one of these risks, it is presumed that it was so caused.
The claimant may then rebut this presumption, by proving that the loss or damage was not, in fact, attributable, wholly or in part to one of those risks. Proof under the CMR is determined by the law of evidence applicable in the relevant national court.
It may be possible to show, that another party was at fault in relation to the special risks. The CMR provides for the following special risks, which relieve the carrier of liability.
The use of open uncovered vehicles, where their use has been expressly agreed in the consignment note is a special risk. This appears to apply to vehicles which are open at the top. It may also apply to goods which have a top but which are open at the back and sides. The risk is that of exposure to the elements.
The presumption in the carrier’s favour does not apply if there an abnormal shortage or loss of any packet. This may arise from theft or from falling from the vehicle.
Special Risk; Inadequate Packing I
The second special risk is lack of adequate packing, in the case of goods liable to damage or wastage, if unpacked. If the sender has packed goods defectively, the carrier’s defence applies. Packing ought to enable the goods to withstand the normal risks in transportation. Packing must be sufficient for the nature of the transportation, length of the journey, road and weather conditions. Packing must allow the goods to be safely stored, sufficiently cushioned and protected.
Packing should take account of the nature of the vehicle. It should take account of the ability of the vehicle to protect the goods from heat, cold and rain. Movement on the journey must be taken into account. Questions of trade custom may determine what is appropriate. If the damage is caused by another parcel from the same consignor, there is likely to be insufficiency of packing.
The sender is liable to the carrier for damage to persons, equipment and other goods, and for any expenses which are due to the defective packing of the goods, unless the effect was apparent or known to the carrier at the time when he took over the goods, and he made no reservations concerning it (A 10 CMR). The liability must be due to defective packing. If it is caused otherwise, the defence does not apply.
Special Risk; Inadequate Packing II
The carrier should check the condition of packing. If it is defective, he should make a reservation. Otherwise, it may be difficult to prove that the packaging was defective. If there are manifest defects in packing, the carrier may in some circumstances, have a duty to rectify them.
The carrier is not required to double check the sender’s packing. In many cases, the goods will be of a specialist nature, and the sender will be in the best position to determine what the appropriate packing should be. If, however, a defect is apparent at the time of delivery to the carrier, it should draw the sender’s attention to it.
If at the time of packing there is no reasonable doubt to the carrier that the packaging is such that the goods will be damaged, and the sender has not clearly accepted this risk, the carrier should refuse to carry the goods. If the defective packing becomes apparent after delivery, the carrier must proceed in accordance with its general duties. Where the escape of the goods would be dangerous to the public or cause the vehicle to be unroadworthy, the carrier must check the packing. If the carrier breaches its duties, it may be liable in whole or in part for the damage caused.
Special Handling Risks
The carrier is relieved of liability when the loss or damage arises from special risks which are inherent in the loading, stowing, handling or unloading of the goods by the sender or the consignee or persons acting on their behalf. The above presumption applies. If the carrier proves that the loss could have been caused by the loading, the burden of proof is on the consignor to prove otherwise.
The consignor who employs another to load on his behalf retains responsibility for loading. The carrier is likely to retain a residual duty, even where loading is undertaken carelessly by the sender. This may be the case if the poor standard of loading is obvious and can be easily rectified.
Although the carrier is not obliged to check for defects, he should bring defects in the sender’s loading to his attention. The risk will remain with the sender if he does not act in accordance with the warning. If the defects in loading are patent and evident, the carrier should take action to remedy them.
The carrier should check loading from the perspective of roadworthiness. If the loading is such as to make the vehicle non-roadworthy, the carrier must take action so as to avoid danger to the public.
The relative expertise of the sender and the carrier will be relevant, in determining their responsibilities in relation to the risks. The terms of the contract of carriage may vary the position.
If the defects become evident in the course of the journey, the carrier must take steps to minimise damage and protect the goods.
Vulnerable / Sensitive Goods
Subject to the general provisions and qualifications in respect of special risks, the carrier is not liable in respect of loss and damage in relation to certain vulnerable or sensitive types of goods. Loss or damage to such goods may arise through breakage, rust, decay, leakage, the action of insects or vermin or other similar common and normal losses.
If the goods are sensitive in this way, the carrier is not liable unless the consignor proves that the loss or damage was not caused by the sensitivity. The goods must be particularly susceptible to risks such as decay, breakage et cetera in transit. Sensitivity is judged relative to the particular mode of transport and context.
If the carriage is performed in vehicles especially equipped to protect the good from the effects of heat, cold variations and temperature or the humidity of the air, the carrier is not entitled to claim the benefit of the above exception, unless he proves that all steps incumbent on it in the circumstances have been taken, with respect to the choice, maintenance and use of such equipment, were taken and that it complied with any special instructions issued to it.
Where the loss or damage could have been caused by sensitivity and the carrier has proved the steps incumbent on it have been undertaken, the claimant may counter the defence by showing the loss of damage was not in fact attributable, either wholly or partly to the sensitivity of the goods.
The carrier is relieved of liability where the loss or damage arises from the insufficiency or inadequacy of marks or numbers on the packages.
Dangerous Goods or Special Handling
In the case of dangerous goods, the carrier’s liability is dependent on whether it has been informed of the exact nature of the danger, and if necessary of the precautions to be taken. The burden of proving, that the carrier knew by other means of the nature of the danger, rests with the sender or the consignee. Certain goods are inherently and notoriously dangerous. In other cases, the carrier must be specifically advised of the danger.
Similar principles may apply to non-dangerous goods which require special handling or treatment. If the carrier has not been given the requisite information, the carrier may be able to show that the loss or damage is due to the wrongful neglect or the instructions of the client.
The CMR provides that the goods of a dangerous nature which in the circumstances, the carrier did not know to be dangerous, may at any time or place be unloaded, destroyed or rendered harmless by the carrier without compensation. The sender is liable for all expenses, loss, and damage arising out of their handing and for their carriage.
Subject to exceptions the carrier is relieved of liability arising out of the carriage of livestock. He must prove that he has taken all of the steps incumbent on him in the circumstances and that he complied with any instructions issued to him.
In effect, livestock is treated in the same way as sensitive goods. The provision is applicable to all livestock. The above provisions on taking of incumbent steps and special instruction apply. The exemptions are not as extensive as first appears. The proviso will always apply as it will be patent that livestock is being carried.
References and Sources
Convention and Legislation
Convention on the Contract for the International Carriage of Goods by Road (CMR) done at Geneva on the 19th day of May, 1956
Protocol to the Convention on the Contract for the International Carriage of Goods by Road (CMR) done at Geneva on the 5th day of July, 1978
Protocol to the Convention on the Contract for the International Carriage of Goods by Road (CMR) done at Geneva on the 27th of May 2008
International Carriage of Goods by Road Act, 1990.
International Carriage of Goods by Road: CMR 6th Edition 2014 Malcolm Clarke
C.M.R. : Contracts for the International Carriage of Goods by Road 3rd Ed 2014 Donald James Hill
The Law of Transport and Road Haulage (1999) J. Canny (Author)
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