Carrier's liability under the Convention on the Contract for the International Carriage of Goods by Road (CMR)

According to Article 17(1) of the CMR Convention, the carrier is liable for the total or partial loss of goods or for their damage occurring between the time of acceptance of the goods and their delivery, as well as for delay in delivery. Paragraph 2 of this provision states that the carrier is exempt from this liability if the loss, damage, or delay was caused by the fault of the entitled person, their instructions not resulting from the carrier's fault, the inherent defect of the goods, or circumstances which the carrier could not avoid and the consequences of which the carrier could not prevent. Furthermore, according to Article 17(3) of the CMR Convention, the carrier cannot invoke, for exemption from liability, either the defects of the vehicle used for carriage or the fault of the person or employees of the person from whom the carrier hired the vehicle.

Currently, jurisprudence seems to favor the view that the carrier's liability under the above provisions is based on the principle of fault (e.g., judgment of the Supreme Court dated 26 November 2019, IV CSK 415/18, which mentions "presumed fault for failure to achieve the result"), although there are discrepancies in case law on this issue in other countries as well.

The source of these uncertainties lies in the rather unusual wording of one of the conditions listed in Article 17(2) of the CMR Convention, according to which the carrier is exempt from liability if the damage was caused by circumstances that the carrier could not avoid and the consequences of which the carrier could not prevent. On the one hand, this condition clearly refers to the commonly accepted definition of force majeure, but on the other hand, it deviates quite distinctly from the typical definition of force majeure. After all, it does not mention the externality and unpredictability of the event releasing from liability. Primarily, the impossibility of avoidance and prevention of consequences, as referred to in Article 17(2) of the CMR Convention, is not objective in nature but is directed at a specific carrier - it does not concern the impossibility of avoidance and prevention of damage by anyone, but by a specific entity potentially liable for the damage.

Even supporters of the notion that the principle of risk is at play link the carrier's liability to the failure to observe a certain standard of care. It is not characteristic of typical liability based on the principle of risk. Article 17(3) of the CMR Convention points out circumstances on which the carrier cannot rely for exemption from liability, including notably the existence of defects in the vehicle. For example, as evidenced by case law, such a defect in the vehicle is a faulty, prone-to-burst tire.

This has significant implications because establishing that the cause of the damage was a defect in the vehicle prevents the carrier from invoking the circumstances listed in Article 17(2) of the CMR Convention that would exclude its liability. Article 17(3) of the CMR Convention is a specific provision in relation to paragraph 2 of this article, and establishing that the damage in the form of goods damage occurred due to a vehicle defect means that the carrier cannot exempt itself from liability by proving that it could not prevent the existence of the defect or its consequences.

There is no basis for creating a separate catalogue of grounds for exemption from liability in relation to those expressed in paragraph 2 of the aforementioned provision. Following the decision of the Austrian Supreme Court (Oberster Gerichtshof) of June 26, 1986 (7Ob26/86), the Supreme Court takes the position that the application of Article 17(3) of the CMR Convention is excluded in the event of tire damage caused by external circumstances that do not fall within the sphere of events resulting in the carrier's liability. Of course, not every case of collision or traffic accident, the direct cause of which is a tire burst, can be deemed to be caused by a vehicle defect (Austrian Oberster Gerichtshof in a judgment of July 10, 1991, 1Ob579/91). This is particularly not the case when a non-defective tire bursts due to driving over deliberately or accidentally scattered objects with sharp edges on the roadway, or when the tire is punctured by a third party while driving. In such situations, it should not be excluded that the carrier may be exempt from liability; however, it must then be recognized that the vehicle did not have a defect, therefore the hypothesis of Article 17(3) of the CMR Convention is not fulfilled at all, and this provision does not apply in principle, not because there is an exception to the rule expressed therein. This provision should also not be applied in situations where although the vehicle defect existed and formally caused the damage, there is only a causal relationship of the conditio sine qua non type between the defect and the damage, and not a qualified relationship relevant for the acceptance of compensatory liability (in the Polish legal system - an adequate connection). Such a case would arise, for example, if a vehicle defect forced the driver to use the services of a repair workshop, and the goods along with the vehicle were destroyed due to a fire that broke out in the workshop while the service was being provided. In the event that a tire ruptures due to a factory defect, which remains in a normal causal relationship with the damage in the form of goods damage, the court has a basis to accept the carrier's liability.