Rome 1🡪 chosen law between parties prevails!
Carrier (cmr applicable mandatorily) of freight forwarder?
Limitation of liability is when the carrier said that i am only liable to pay the limit in the conventions as i am the carrier and that is what the law prescribes on me. Anything that surpasses this limit, will be left uncovered and I will not pay that.
If however, he is at fault, loss happens due to carrier, then he must pay the full amount of that goods at the time are delivered to him plus freight and some additional values too.
Compensation of delay is different than the compensation for damage or loss. If the damage to goods happens due to delay, this may be limited to loss. EG 5/10 CRATES,
Acting reckless and with knowledge🡪 limitation limit IN CONVENTION NOT APPLICABLE. 🡪 FULL AMOUNT!!
Cmr 🡪 is different test ! wilful misconduct
Countries interpret wilful misconduct differently
Eg france says that leaving truck unattended = wilful misconduct
Belgium🡪 carrier intends to cause damage. He knowingly leaves the truck unattended. Bermuda triangle Naples example. Driver knew it unsafe consequence 🡪 forum shopping 🡪 cargo interest try to get case in france or if ur carrier in Belgium.
Cim and mc 🡪 u have to give timely notice. No limit like Cmr (1 year)
Title to sue🡪 this is the cargo interest. (in hvr only B/L!!!)
Only ways shipper is liable is
Defective packing
Wrong description in consignment note that wheat is being shipped is not in the note (eg cocaine instead of sugar) carrier not liable
The above happened before the period of responsibility Of the carrier !!!!
Remember, carrier is always presumed liable!!! Burden of proof on him that he is not liable and has received goods that don’t conform with description or fault due to packing.
23.4 cmr 🡪 Freight customs duties and other charges in addition to the limitation amount. They are added to the limitation amount (?)
ASSIGNEMENT CEZIN AND ARKA AND RECOVERABLE DAMAGE
Questions:
Which law applies?
The country in which the damage occurs.
Is Cezin carrier liable for the loss of / damage to the carcasses ? Can it invoke (a) defense(s)?
Willful misconduct does not come into play. There is a tendency of always mentioning willful misconduct. This does not even come into play as carrier in this case doesn’t even intend on damaging cargo, he in his own right did not intend that the tire blew out. In exam do not even mention this, as to some extent this is a surprise (or force majeure) that he is victim of himself. So, 🡪 nonetheless, he is still liable for the damage as it happened during the responsibility of him taking over the goods, 🡪 delivery (which does not even happen). He is liable for the limit in cmr, as it would not even be there and would make him totally exempt. Carrier is always presumed liable.
For example, too high temperature is relevant. Maybe carrier didn’t follow shippers instructions.. carrier presumed liable
What are the Carrier's defenses🡪 if carrier can prove the blowout of tire was not due to a defect in vehicle (tire is part of vehicle) then he may be exempt of liability since ‘it is a circumstance he cannot avoid’. Yet this is not likely. Cezin is liable. If u can prove that the packaging was defective then there was a causal link between loss and damage. Then packaging caused the damage. Now burden shifts. Not cargo interest must prove that no, packaging was good.
Not likely since that would be hard to prove as he is presumed liable.
If Cezin is indeed liable, which amounts will it have to pay to Arka?
We assume cezin is liable.
’’replacement value (360.000,00 EUR), reimbursement of the freight (800,00 EUR), and commercial damage estimated at 250.000,00 EUR. Arka bought the carcasses for 176.000,00 EUR‘’
Replacement value (360.000,00 EUR) 🡪 problem, that’s a larger amount than the value of the goods at departure. Not recoverable as it is HIGHER than the value of goods when bought. Seller cannot recover future profits.
Freight (800,000)🡪 always recoverable. See CMR. In case of partial loss. The % of goods lost will be recovered. See in x-mas cake case only
14% of freight recoverable.
Commercial damage if 🡪 consequential loss and not recoverable
Carcasses that could be sold as animal feed🡪 court will have to look at national law. no final answer. It is very problematic. What is damage? what is loss? Eg branded clothes loss. Can u sell the rest in market. No final answer.
5. Is Arka liable for the clean-up costs? Can it invoke (a) defense(s)?
This is national law. German law where damage happened. Authorities decide this
When shipper liability become unlimited, on fault based, strict?
Shipper liability is in general fault based and unlimited under general contract law. However as general contract law applies, which is not mandatory, you could apply clauses imposing a presumed or even strict liability.
Where HVR provide no provision on delay
, then what are the consequences?
Here there are two points of view:
- no rules in convention 🡪 national law
-no rules in the convention 🡪 explicit exclusion from recoverability 🡪 no compensation
Cargo interest can file extra contractual claim to subcarrier / servant / Independent contractor.
This is possible but what about against third parties? Is it by tort?
Such action is not always possible. Conventions in general only contain a Himalaya-clause, holding all parties, (including 3rd parties)in the contract liable. Conventions state claims against such 3rd parties allowed. The question whether such claim is possible and what the ground for such claim in general depends on national law. (so it is mainly “if possible, then the convention provides for himalaya protection”)
What is a special interest in delivery?
A special amount of loss that would follow from the lack of (timely) delivery. Not necessarily limited to the value of the goods and thus often consequential damage.
-Examples:
-Christmas-cake case: special interest is that if not delivered by December 18, the cargo loses 90% of its value, despite the fact still being consumable.
- Factory standstill in case of just in time logistics: if spare parts not delivered in time, factory cannot work for 24 hours: damage € 100.000 euro.
Do I understand it right that in the Charcuterie case this was given by an ultimate delivery date?
No. This was under Contract of Sale reason for refusing the cargo for the buyer (Carrefour), seller had cargo with logo Carrefour and argued that it could thus not be marketed anymore. For this reason the court accepted the claim that the delay here resulted in a total loss.
[this question might confuse you. Please read mainly the answer]In a case that there is no convention will mandatorily apply to multimodal contract (for instance rail-road transport falls outside 1.3 Cotif-CIM), then I have to assess the applicable national law (to see the adoption of network or sui generis theory). From this point, is it correct that such national law will refer to the convention that is agreed in the contract (exclusive jurisdiction or refer to the general principle as regulated under Brussels 1 (Recast)? or I need to see the national law based on where the damage occured, as I see the concept of 'loss lies where it falls' in the slide?
Multimodal transport contract, the court must
first assess whether the convention that would be applicable to the unimodal stages, also apply to the multimodal contract. (For example MC explicitly states that it is applicable to multimodal stages.) Other conventions don`t and thus different interpretation might be given.
Interpret the Convention for unimodal carriage based on national law.
Network theory 🡪it will apply the convention.
sui generis theory 🡪 conventions don`t apply autonomously and then we have to look in national law. (to be determined on Rome I, not Brussels I).
If Conventions don`t apply, competence is dealt with under Brussels I.
It could however be that f.ex. the dutch court sees its competence confirmed under Brussels I, but that a choice of law is made for French law.
In that case French law will have to be applied.
German and Dutch national law apply the network theory again, which could lead to the applicability of the conventions` regimes.
Under Montreal Convention it seems that only the value of the goods is recoverable, is this correct?
On the contrary. Unlike for example CMR, Montreal does not contain a rule on recoverable damage and thus recoverability has to be assessed according to the national law standards. However, you should take into consideration that air cargo has a relatively high value to weight ratio, making the available compensation for for example consequential damage rather limited.
Statement:
Consequential damages (reputation for example) is recoverable in case of delay under the different conventions?
Eg 🡪 CMR explicitly refers to "other charges" only with regards to partial or total loss which covers consequential loss.
Is theft considered always a preventable event? If the carrier has shown to have taken all possible measures to safeguard the cargo, I understand that this could fall under the exoneration of 17.2, is that so?
This depends on the court. Courts uphold a very high standard.
Theft is almost considered as evidence of the fact that insufficient precaution measures were taken. Mainly armed robbery while driving (however for some regions this is even not sufficient) or theft at a secured parking place (but not at other parking places) could be considered as unpreventable and fall thus within 17.2.
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