Exclusions of liability part of road. 2

Last week I described the basic conditions for exemption of liability of road. The domestic and international law have a number of conditions favored, that significantly improves the legal position of the carrier in a dispute concerning damage to the shipment.

Prima facie evidence instead show

As already indicated in previous parts of the article, attempt to bring the carrier's liability required to state an, that the damage resulted from the circumstances listed exhaustively. In many cases, such evidence can not be, because the carrier is not able to determine at what time and under what circumstances the resulting damage (np. during the long transport of sealed shipments). The situation is definitely preferred for the carrier, when it comes to any of the favored conditions for exemption of liability specified in Article. 65 paragraph. 3 pr. wire. i art. 17 paragraph. 4 CMR. What is the difference? Carrier to be sufficient to demonstrate, that there has been any of the situations described in those regulations and Prima facie evidence of, that in the circumstances of the case the damage could arise because of this. Then, under Articles. 65 paragraph. 4 pr. wire. i art. 18 paragraph. 2 CMR is presumed to, that the damage is for this reason. It is up to the person entitled to the show, that this circumstance did not cause damage, which is generally impossible.

Prima facie evidence must relate to the circumstances of the incident and can not have an abstract character. The carrier must, therefore, propose and justify the sequence of reasoning, which implies, a circumstance that is the most likely cause of damage, taking into account such factors as type of injury, its size, time of creation and detection, etc.. In many cases this will require expertise and will need to appoint an expert. However, if the carrier fail to perform reasoning, person entitled to claim compensation will be in a very difficult process. There must indeed have, what was the real cause of the damage (other than that indicated by the carrier), but not well enough to prove, that the injury might well arise for another reason. It must be demonstrated, that the injury is certainly not the result of the circumstances cited by the carrier.

The scope of responsibility of privileged exemption is very similar both in national law and the CMR Convention. They differ slightly and that the circumstances of the relatively rare. The situations that occur commonly regulated in both acts almost identically.

Loading and unloading is not the carrier

Art. 65 paragraph. 3 Item 4 i art. 17 paragraph. 4 lit c) show, that the preferred carrier liability exemptions include situations, when the damage was caused by loading, arranged or unloaded by the consignor or consignee or persons acting on their behalf. Of course it's not about the damage caused during the loading and unloading, as for the carrier does not respond by definition - in fact bears the responsibility for the condition of the consignment in transit. This applies to damage, that arose during transport, but their cause was improperly executed steps of loading by the recipient or sender. Underline requires, that the carrier does not have to prove, that these operations were done incorrectly and that led to injury. It is sufficient to demonstrate, that in the circumstances of the case, such a cause is most likely. Clearly, however, demonstrate the failure load significantly increases Prima facie evidence of such.

As indicated in the entry Fri. The effects of improper loading and securing of goods by road in the doctrine and case law is disputed, whether the carrier is entitled to rely on this premise just in case, when done check the correct loading, or notified the sender that perceived deficiency of cargo operations.

The type of an exclusion, the carrier is one of the most widely used of all exemptions favored, though, and so carriers in many cases, even in such circumstances, accept responsibility for damage, without attempting to exercise their rights excluding compensation.

Defective packing

Another quite frequently mentioned condition for terminating the liability is described in Article. 65 paragraph. 3 Item 2 pr. wire. i art. 17 paragraph. 4 point b CMR packaging of the product defect or lack of, if the goods due to their inherent nature, is in such circumstances vulnerable to damage. Whether a package is reasonable depends on circumstances of the case. It is, that the package should be adjusted to normal conditions of transport and can not be expected, that it seeks to ensure the safety of the goods, eg. during a road accident. The doctrine also stresses, that the condition can be applied not only in the case, defective merchandise when improperly packaged, but also as a result of improper packaging of one product to the customer damaged goods to another customer. This does not apply to the situation now and the damage to the goods belonging to another person (although the carrier will have the right of recourse against the person giving the goods in the wrong package).

In discussing this condition should be noted about the regulation of art. 781 § 2 k.c. i art. 9 paragraph. 2 CMR. In light of these provisions if the carrier bill of lading does not raise objections to the shipment (including packing), presumed to be, that the shipment was in good condition. This does not preclude a subsequent demonstration, that the packaging was defective, but such proof is difficult to significantly.

The natural characteristics of the goods

Another exception is the privileged nature of certain goods which may cause total or partial loss or damage, in particular through the breaking, rust, decay, dry, leakage, normal wastage, or the action of insects and rodents (art. 65 paragraph. 3 Item 3 pr. wire. i art. 17 paragraph. 4 d point of the CMR Convention). It should be emphasized, that this applies only to such categories of goods, the full protection from harm is not possible, and no such, which the security was abandoned. For example, in one of the Belgian judgments were, that in the case of transport of glassware, to release from liability must be shown, that the natural properties of glass in the circumstances, had in practice lead to the inevitable loss. Because the nature of glass itself does not cause, that the injury is always possible to avoid. Moreover, in the case of the CMR Convention in Article. 18 paragraph. 4 clearly indicated, that if the carriage is performed in vehicles specially equipped to protect the goods from the heat, cold, changes in temperature or humidity, the carrier can rely on the natural properties of the product as a cause of terminating its liability only, he proves, that all steps incumbent on him in the circumstances with respect to the choice, maintenance and use of such devices and that it complied with any special instructions, issued to him.

Incorrect description of consignment

That condition occurs in two forms. W art. 65 paragraph. 3 Item 1 pr. wire. refers to the assignment as inaccurate or insufficient items excluded from carriage or transported under special conditions or careless by the sender of these conditions. And in art. 17 paragraph. 4 e point of the CMR Convention speaks of insufficiency or deficiency of marks or numbers on the packages. The law authorizes the freight carrier to be replaced by confusion as to the nature of a shipment of special features, which requires special care during transportation. The CMR Convention's liability are covered and all situations, the consignment is wrongly labeled, but it is the wrong description must be probable cause of the injury. Frequently this will also apply to cases, resulted in the erroneous description of the consignment, the carrier shall not be transported in a consignment, in which the type of consignment should be transported (np. No food will be transported in cold).

Transportation attended

W art. 65 paragraph. 3 Item 5 pr. wire. provides for the exclusion, which has no counterpart in the CMR Convention. It refers to damage caused during carriage of consignments, which according to the law or the contract should be supervised, if the damage resulted from causes, which had prevented the caretaker. This premise is not too often apply. In practice it may occur during transport, eg. materials containing classified information, or animals. The relevant provisions provide for the need for surveillance of such goods in certain circumstances. Requiring the supervision of the contracts, carrier is a party, is quite exceptional.

Carriage of live animals

W art. 17 paragraph. 4 f point of the CMR Convention as the basis for a self-exclusion of liability of carrier shall indicate the transport of live animals. It's a kind of natural condition a special form of product characteristics. Of course, this does not mean, that regardless of the circumstances in all cases the carrier's liability for damage in shipment, including live animals is disabled. The carrier is also in such cases is bound to the custody of the shipment. The provision of Article. 18 paragraph. 5 Convention states because, that the carrier can rely on the provision of transport of animals only, he proves, that all steps incumbent on him in the circumstances and that he complied with any special instructions, issued to him.

The use of open vehicles

Another specific condition for terminating the carrier's liability set out in the CMR Convention on the carriage of goods vehicles using the sheet open and nieprzykrytych, if their use has been expressly agreed and specified in the consignment (art. 17 paragraph. 4 a point of the Convention). Important limitations on the scope of application of this condition is the text of Article. 18 paragraph. 3 Convention which is, that in this case, the carrier must prove, and not only be able to substantiate, that the damage resulted from such a vehicle transport, if the damage is the excessive loss or disappearance of the consignment. It should be emphasized, that to this exemption could be applied must be cumulatively satisfied the two conditions: use of an open vehicle must be agreed, Moreover, such a reconciliation must be included in the bill of lading.

Concluding Remarks

The conditions for exempting the carrier, contrary to appearances can often be applied. This applies especially to the condition relating to loading and distribution of goods by the sender, What is the full load road transport rule. The carriers, however, rarely benefit from the significant features, they give them these rules. Often this is caused by a desire to maintain customer, which makes, that the carrier assumes liability for damage, which could avoid. In a significant proportion of cases, but this is unfortunately the result of lack of awareness of the carriers as to their entitlements.