CARRIER’S LIABILITY FOR DAMAGE AND LOSS UNDER THE CARRIAGE OF GOODS BY ROAD CONVENTION
Ozge Hakdan Erguc
Attorney At Law
Under the Carriage of Goods by Road Convention, the carrier is liable for any loss of or damage to goods that occurs during transportation and as well as for any delay in delivery. Under the Carriage of Goods by Road Convention, the carrier is liable for any loss of or damage to goods that occurs during transportation and as well as for any delay in delivery. Even the sender undertakes loading and stowing of goods, the carrier must observe it in case of the lack of or defective loading and if the carrier does not warn the sender or prevent the loading the carrier shall be liable for contributory negligence.
The defendant carrier had undertaken to transport cardboard box from Turkey to Russia by road. During transportation goods had slipped down and therefore damaged. The carrier claimed that the damage occured for defective loading, handling and stowing which undertaken by the sender. By reason of that he could not be liable for the damage; dismissal of the action is claimed.
The court of first instance dismissed the case based on considerations of insufficiency or inadequacy packing of goods caused damage, under CMR convention article 17/4-b the carrier shall be relieved of liability by reason of the lack of or defective condition of packing. The claimant has appealed against this decision. According to the Turkish Supreme Court decision, although loading and stowing performed by the sender, the carrier must observe loading and in case of defective condition of loading he has to prevent it and take required measures to provide secured transportation. Otherwise he will be liable for damage and loss as sender and has to share negligence. In this case, the carrier did not perform the obligations which stated on CMR and according to the convention carrier has an aggravated duty of care liability. Considering all these reasons, Turkish Supreme Court has overruled the decision of court of first instance.
If a carrier confronted with a claim due to damage or loss of goods, he can invoke Article 17 of CMR which states conditions to relieve of liability. If there are some conditions to make carrier’s liability relieved, the carrier will not be liable for damage or loss of goods. As mentioned above, if loading, stowing and handling are undertaken by the sender, it will be liable for damage or loss that arises in reason of inappropriate packing. Article 17(4) of convention states that: “…the carrier shall be relieved of liability when the loss or damage arises from the special risks inherent in one or more of the following circumstances: (b) The lack of, or defective condition of packing in the case of goods which, by their nature, are liable to westage or to be damaged when not packaged or when not properly packed..” However, according to article 8/1-b the carrier shall check the apparent condition of the goods and their packaging. Otherwise the carrier shall be jointly liable for damage or loss with the sender.