Article 29 of the CMR Convention states that a carrier may not exclude, limit or otherwise shift the burden of proof under the CMR Convention, if the damage has been caused by their wilful misconduct or default on their part which is considered to be equivalent to wilful misconduct in the eyes of the Court seized (Article 29).
The CMR 'limit' is 8.33 SDs per kg, which, depending on the respective value and weight of the goods, can significantly hamper any recovery.
This limitation means that there is certainly an incentive for the sender to demonstrate wilful misconduct and a need by the carrier to refute such allegations. Currently in the UK, there is a high hurdle for a claimant to show wilful misconduct ; hence the UK is known to be a 'carrier friendly' jurisdiction.
Some key points to consider for establishing wilful misconduct are:
- what conduct is expected of someone entrusted with the property of another;
- whether that person's acts or omissions were so far outside the range of what was to be expected that it could properly be considered misconduct;
- whether the person knows and appreciates that is misconduct, yet intentionally or recklessly persists in the act, failure or omission regardless of the consequences; and
- did the 'wilful misconduct' cause the loss and damage.
A driver may be provided with written instructions, such as to only park in secure locations, which are well lit and have CCTV coverage, not to leave the loaded trailer alone and to only use a truck with certain security features. If this was the case, a deliberate disregard of those express instructions may be an important consideration in determining liability.
In addition, if someone carrying the goods knew that loss or damage might result from their actions but nevertheless deliberately took a risk when it was unreasonable to do so, they could be said to have acted with reckless carelessness.
For the purposes of assessing the question of wilful misconduct, the English Courts are likely to consider that a sender is entitled to expect a carrier to comply with reasonable commercial transport instructions.
The problem with carriers' instructions are that they can be very specific and, for reasons totally outside of the driver's control, can sometimes be impossible to comply with. Drivers should try to comply with instructions as much as possible and in circumstances where this is not possible, a driver should contact the sender to agree alternative instructions or comply as closely as possible. For example, if a driver is required to park at a specific location which is secured, has CCTV and well lit but cannot reach the location before their daily driving limit is reached, they could mitigate the risk of a court finding that there is wilful misconduct if they can identify a location which similar protections, rather than just the first car park they find.
However, ultimately it is going to be a factual question around what the driver was required to do, what they could have done and what they actually did and/or did not do at the time the loss occurred.
