In the practice of the Law Firm there are quite frequent cases in which it turns out that the transported goods have been stolen. These range from theft of goods during a driver's night-time rest, through the activities of organized criminal groups disguised as police officers, to subcontracting transport to a carrier with whom - after taking the goods - contact stops and as a result it turns out that the goods have been stolen.
In such a situation, the Ordering Party or another entity usually (for example Owner) issues a debit note to the carrier indicating that the carrier is responsible in full for the stolen goods.
In such a situation, the carrier should first examine whether the entity claiming compensation is entitled to claim compensation at all. Moreover, the carrier should report the damage to its insurer and without its consent should not submit any declarations of possible payments.
Subsequently, the carrier should examine its liability, i.e. whether it is liable for the damage at all and, if so, to what extent.
According to Article 17 (1) of the CMR Convention, the carrier is liable for the total or partial loss of the goods or for damage to them occurring between the time of acceptance of the goods and their delivery, as well as for delay in delivery (Article 17 of the CMR Convention). In the light of Article 3 of the CMR Convention, the carrier is liable for the acts and omissions of its employees and other carriers to whom it commissions the carriage, as for its own acts and omissions (Article 3 of the CMR Convention). Thus, there is a risk that the court, in any proceedings, will find that a driver who, for example, has parked in an unguarded car park or a dishonest cheat carrier who has stolen the goods is liable as for his own actions.
The carrier can evade liability only in situations strictly defined by law. According to Article 17 (2) of the CMR Convention, the carrier is exempted from liability, inter alia, if the loss of the goods was caused by circumstances which the carrier could not avoid and the consequences of which he was unable to prevent. It is up to the carrier to prove that the theft in question could not have been avoided (demonstrating, for example, that the driver parked the vehicle in a guarded car park, that the vehicle was adequately protected against theft and that there were two drivers in the vehicle to ensure better protection of the cargo). The court should then assess whether a specific event (theft, robbery) is a circumstance which the carrier could not avoid and the consequences of which he was unable to prevent. The Law Firm's experience shows that courts most often assume that cargo theft is a fairly common phenomenon, and thus one that can be predicted. Hence, proving the circumstances exempting from liability is very difficult, often even impossible.
Persons claiming compensation from the carrier most often claim it in full, citing the provisions of Article 29 of the CMR Convention, and thus the carrier's malicious intent or gross negligence (or, alternatively, the carrier's employees or any other person to whom the carrier refers for the performance of the carriage, if those employees or other persons act in the performance of their duties). In this regard, the carrier must also be aware of the need to defend himself. The carrier must also verify the amount of the loss reported and the evidence adduced to prove its existence and amount.
In case of theft, a properly formulated insurance policy proves useful for the carrier. It is therefore worth ensuring that it contains appropriate provisions to protect the carrier in the event of such situations. Policies often exclude the insurer's liability in such cases, which carriers discover only after the occurrence of an unpleasant event. Policies often also specify specific requirements to be met by carrier in order to protect cargo against theft. Failure to adapt to the required action is often combined with a refusal to pay compensation.
In the event of theft, the carrier should take appropriate defense, because it is not always the entitled persons who make claims (it often happens that claims are made by several different entities), the method of proving the damage is not always correct, the carrier can defend itself with a high degree of diligence in its actions, invoking the lack or at least limitation of its liability.
Ewa Kosowska-Czapla
Attorney-at-Law / Bankruptcy Adviser