When does 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.
When 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 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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