ARIZON ABOGADOS S.L.P.
21st November 2019
NEWS & ARTICLES
CARRIER’S LIABILITY IN CASE OF THEFT IN INTERNATIONAL CARRIAGE CONTRACTS BY ROAD
Recent Spanish case law establishes patterns of exoneration of liability to the carriers, in case of theft of goods during the performance of the carriage contract by road, quite restrictive that –in most cases- they do not comply with them.
In contracts for land transport where it is applicable the Convention of 19th May 1956 (hereinafter, CMR), the carrier would be found liable for any loss, fault or delay, unless it was unavoidable by force majeure (art.17.2 CMR). As a matter of fact, there is a reversal of the burden of proof whereby the carrier would be the person in charge of evidencing that he could not have avoided those losses (art. 18 CMR).
However, the CMR establishes a liability limitation in cases of lack of “willful misconduct” from the carrier in the good’s loss (art. 23 and 29 CMR). So, the core question it is what case law considers should fall into the meaning of willful misconduct when there is a theft in a road carriage contract, so that the liability limitation can be applied to the carrier.
In this sense, Spanish case law states that the existence of willful misconduct does not imply that there must be an intention to harm (or far from it, committing a criminal offence) but the very fact that the carrier had taken risks or had not acted with the expected diligence (not having taken enough control and surveillance measures) it is sufficient to consider that there was a willful misconduct in the theft.
Thus, the High Court from Barcelona held (in accordance with other judgements):
“(…) that fraud, as a subjective component of the debtor’s responsibility as a result of breach of contractual obligations, does not require the concurrence of an intention to harm or harm the creditor, much less the commission of a crime , but only that the infringement of legal duty is voluntary and conscious, in tune with the STS doctrine, among others, of March 9, 1992, which states that “the results that, without being intentionally persecuted, must be misunderstood , appear as a necessary consequence of the action.”
Equally, the configuration of eventual fraud in the good’s theft can be found in the judgement from the Supreme Court of 4th July 2016 –among others-, in which it is shown that to analyse if there is fraud, it should be considered «the carrier’s consciousness about the risk in producing damages in the goods object of the transport contract», whose evaluation must be done objectively depending on the actions or conducts that may be taken in the development of the carriage contract that may be required from a professional.
This way, one may wonder what the Supreme Court considers should those “risky conducts” that may lead the carrier to be found liable for the good’s theft consist in. In the Judgement from the Supreme Court from 10th July 2015, in relation to the circumstances of the theft, the Court considered risky the following actions:
“In relation to the circumstances of the theft that were proved, the following should be noted:
A. The transporter parked the truck in a parking lot of an unattended gas station, accessible to anyone and known for the parking of trucks carrying international transport. This parking was done without any special surveillance measures during the night where the theft occurred.
B. The merchandise presented a weak protection when it was introduced in a trailer covered by a mere tarp.
C. The driver reported the facts the next day, when he was warned of the robbery by other drivers who had parked in that area.”
Consequently and considering the abovementioned case law, it can be stated that –in case of theft- the carrier must evidence that it took sufficient control and surveillance means with the expected diligence from a professional, so that is not considered that there has been fraud or willful misconduct and, therefore, the limitations of Article 23 CMR will apply to him.
On the other hand, it is normally considered that no responsibility should reach the carrier in case of violence or intimidation against people. In case violence was applied on the things, it is also required to the carrier to prove that he fully adopted the appropriate measures of security, according to criteria of professional diligence (Judgement from the High Court of Cordoba from 28th May 2013) .
In conclusion, when there has been a theft in the performance of an international carriage contract by road to which the CMR applies, carriers have the burden of the proof to evidence that the loss of the goods was the result of an unavoidable cause of force majeure to exonerate themselves, which will be justifiable when there has been violence or intimidation to persons. For any other case -even when violence was used in the things- the carrier must demonstrate that he used means of surveillance and control with the diligence of a professional in order to be exonerated or, at least, to be applied (at the discretion of each Judge and the circumstances of each case) the limitation of damages of the CMR.
Arizon Abogados S.L.P