Carriage of goods by road : the liability of the carrier.

Abstract

The recently promulgated Act on the International Carriage of Goods by Road (Chapter 486) gives effect to and incorporates the Convention on the Contract tor the International Carriage of Goods by Road, better known by the acronym of CMR, which was signed in Geneva on the 19 th May 1956. This International Convention is becoming increasingly prominent. The CMR applies to contracts for the carriage of goods by road, however such a contract must be made for a reward and not gratuitous. The place of delivery and the place from where the carrier leaves with the goods must be situated in two different countries. One of such countries must be a party to this Convention. Carriage by road is one of the last types of transport to be the subject of uniform law. This Convention governs liability, mainly that of the carrier, therefore it provides a single set of rules which govern this liability, instead of being regulated by different national provisions of the various states on whose territory the carriage takes place. In the thesis I will be dealing specifically with the liability of the carrier. The carrier is the person who contracts to carry, whether or not such person actually carries the goods himself, therefore he can perform this undertaking either personally or through a sub-contractor. The CMR, in Article 3, makes the carrier responsible for the faults of his people. There is no need of the carrier's own fault; the crucial requisite is that the employees of the carrier or the persons who carry out the carriage act within the scope of their employment. Once they act on their own initiative, the carrier is no longer liable. The CMR also specifies the amount of compensation due by the carrier to the sender for loss and damage to the goods being transported. With regards the liabilities of the carrier stipulated in the Convention, I looked at court judgments of the courts of states parties to this Convention. This gives us a clearer picture on how these articles of the Convention are applied. In this thesis, I will also be looking at the defences that are available to the carrier. If the carrier manages to prove one of the defences listed in the CMR, the carrier is exonerated wholly or in part, depending on the case. An alternative available to the carrier is by resorting to a secondary defence, that is the special risks listed in the CMR. In this case, the carrier must prove that the risk occurred. In addition, he must prove that such risk could have caused the damage or loss, there is no need to prove that the risk did actually cause the damage or loss.