Transport of goods under controlled temperatures

A significant percentage of all traffic concerns perishable goods and vehicles shall be made to enable temperature control. CMR Convention, Having regard to the importance of this area of ​​transport, specifically governs the liability of carriers for damage caused during such services. They should remember that both the carriers and the businesses that hire the consignments.

Presumptions favorable to carrier

At the outset it is worth recalling, that - like the Polish transport law - the CMR Convention introduces a number of favorable presumptions for the carrier to allow the waiver of liability for damage to the goods. One is the provision art. 17 paragraph. 4 lit d which is, that carrier shall be relieved of liability, the loss or damage arises as a result of the natural characteristics of certain goods, may cause total or partial loss or damage, especially through breakage, rust, decay, dry, leakage, normal wastage, or the action of insects and rodents. This applies in particular a large part of food, which should be stored in appropriate conditions of temperature or humidity, such as. dairy products requiring low temperature and grain, which should be protected from moisture.

The carrier does not have to even prove, that the damage was due to the natural characteristics of the goods. Because it protects another important implication. According to art. 18 paragraph. 2 Convention Prima facie evidence is sufficient, that due to the circumstances of the case damage might have occurred because of that. In this case, is presumed to, is that the damage resulted from the inherent product, and the victims to show that, that the damage resulted from other causes, for which the carrier is liable.

There is no denying, that this solution is extremely beneficial to the carrier - in practice, the overwhelming majority of cases of damage in the form of a deterioration of the food being transported in a carrier based on the above provisions would exempt from liability. This would make the transport of food and other goods subject to damage especially risky - the sender and receiver have to reckon with the possibility of losses, for which the carrier shall not be liable. Hence the need for special arrangements such transportations.

Carriage of special vehicle

According to art. 18 paragraph. 4 Convention in cases, when the carriage is performed in vehicles specially equipped to protect the goods from the heat, cold, changes in temperature or humidity, carrier may rely on these benefits for themselves only the presumption of, he proves, that It took all applicable in the circumstances with which to choose, maintenance and use of such devices and that it complied with any special instructions, issued to him.

This seemingly simple recipe - significantly reducing the possibility of invoking the carrier to the natural properties of the product - but in the case law has raised serious doubts.

First - what is meant by a vehicle specially decorated for the protection of goods from the effects of heat, cold, changes in temperature or humidity? In earlier decisions of French courts, the view emerged, that each vehicle, which protects the cargo area from moisture with tarpaulins, belongs to this category. This view, however, has been widely criticized both in doctrine and jurisprudence. Hence it must be held, that art. 18 paragraph. 4 relates only to the specially equipped with suitable facilities, and not to the standard vehicle, to the roof and walls of the cargo area.

It is obvious, that the use of just such a vehicle shall normally be agreed with the sender. Otherwise, from the viewpoint of the carrier will be meaningless to use the vehicle, the cost of living (increased fuel consumption due to the aggregate) are higher than the standard.

Obligations of carrier

To avoid liability for damage to goods with natural exposes them to damage, the carrier should take a series of acts of care. First of all should examine the state of things taken for the transport - Otherwise the rule will not be able to demonstrate, that the goods were defective at the stage of loading. According to art. 9 paragraph. 2 Convention in the absence of objections the carrier is presumed to, that the product was in good condition at the time of loading.

Moreover, indicate the, that in respect of such goods, the carrier shall examine the accuracy of loading and stowing the goods. This is not right with the provisions of the Convention – that do not regulate at all obligations of the parties relating to the loading – but such a view scrolls on a regular basis in case law.

It is the responsibility of the carrier must also - which is already quite clear from art. 18 paragraph. 4 – take all appropriate measures to the choice, maintenance and use of equipment. What exactly is?

First of all, before the start of the transport carrier must ensure that the, that the device (np. chiller) working properly. Moreover, the assumed, it should also control the operation of the device while driving. In several decisions highlighted, that the carrier can not exclude its liability, if you do not monitor the correct functioning of the unit until the time of unloading the goods.

One of the primary duties of the carrier in such transportation is to use the sender's instructions. In some decisions, however, raises, that blindly follow the instructions sender does not lead to the release of the carrier of liability. For if the sender's instructions clearly impossible to carry the load at a specified time in the proper condition (np. perishable things in a positive temperature for several days), the carrier shall refuse to carry on such terms. This view is not widely shared, but keep in mind, that some courts may take it.

Burden of proof

From the standpoint of the interests of the carrier the most difficult task is not even all of the foregoing obligations, but the fact, that the carrier must demonstrate their adherence to. This is not always easy, especially for devices that do not have the temperature record. In such cases, carriers should be documented in detail the actions taken, although in this case there is no guarantee, that produced by the driver notes and statements will be dealt with by the court as evidence of due diligence.

Concluding Remarks

Transport using specially equipped vehicles definitely weaken the position of the carrier in a dispute with the victims for the damage in the carriage. Thus, their performance is in the vital interest of broadcasters. Carriers should consider the risks described both in the amount of transportable as well as the appropriate liability insurance.