In accordance with the CMR Convention, the road transport operator is liable for the total or partial loss of goods or for damage to goods occurring between the time of acceptance of the goods and their delivery, as well as for delay in delivery. The carrier shall, however, be relieved of this liability if the damage resulted from circumstances which he could not have avoided and the consequences of which he was unable to prevent. The question is, how to interpret it?
The circumstances which the carrier could not avoid and the consequences of which he could not prevent are the ‘thin red line’. As long as he does not cross it, he is liable for the damage caused. After crossing it, when the case is so sophisticated that only a prophet could really predict the damage, the carrier becomes free of liability. In other words, the compensation from the operator’s liability insurance policy (OCP) will not be paid.
How to determine if he crossed the line? Unfortunately, this has to be decided on a case-by-case basis. Let’s check how the courts see it. An interesting example is the ruling of the Danish Maritime and Commercial Court in Copenhagen, which ruled on Case H-14-13 in 2014.
Who’s to blame for the damage caused by robbery?
The Norwegian company sold a batch of pickled herring. The base was Incoterms DDP. The goods were supposed to go from Norway to Greece. The seller, in accordance with Incoterms, commissioned the transport to a Norwegian carrier (No 1). The same Norwegian carrier contracted the transport to a Danish carrier (No 2), which in turn contracted part of the transport to another Danish carrier (No 3).
Carrier No 3 knew he was carrying salted fish, but he was not given any information or instructions. In particular, he was not informed that stops must take place at guarded parking lots.
During the transport planning process, carrier No 3 realized that the set was too heavy to travel in Austria and arranged rail transport to Trento in northern Italy. From there, the set was to go to the port of Bari. In Foggia, the driver stopped at an unguarded parking lot. As you can easily guess, a robbery occurred during this stop and the cargo was taken.
The case was first brought before a Norwegian court, which ruled that carrier No 2 was liable for the damage and ordered damages. In this situation, carrier No 2 sued his subcontractor, No 3, in Copenhagen.
He didn’t foresee it, so he’s guilty
The third carrier defended himself fiercely. He claimed that it was all the fault of his client, who booked a ferry from southern Italy, although he knew very well that the vehicle was going all the way from Trento. This forced the driver to spend the night in southern Italy, a place where it is not safe. Then why should he be responsible for it now?
But the court found that carrier No 3 was liable for the damage suffered. The court stated that every carrier should know well that southern Italy is not safe and that herring is allegedly much desired by robbers. In that case, the carrier should stop at a guarded parking lot, even if he did not receive such guidelines. There was such a parking lot in the area and the carrier should plan the route in such a way as to get to the parking lot, that’s all.
The court, therefore, concluded that the carrier would only cross the ‘thin red line’ which releases him from liability if he stopped at a guarded parking lot. It doesn’t matter that Carrier No 3 didn’t receive any instructions on this matter. In other words, according to the court, the carrier could have foreseen and prevented damage caused by parking in a dangerous area.
Of course, this ruling by the Maritime and Commercial Court in Copenhagen is not binding on the courts in other countries.