Let’s talk about two court judgments which, although coming from foreign jurisdictions (UK and Spain), are of particular interest in practical terms as they concern two international Conventions – namely, the Hague-Visby Rules and the CMR – applying to most of international carriage by road and sea.
Are the Hague-Visby Rules applicable also in the event that a waybill is issued in lieu of a bill of lading?
As a matter of fact, a precondition for the applicability of the Hague-Visby Rules is that a shipment is covered by a bill of lading.
English Courts recently adjudicated on a case in which the parties – after entering into a contract of carriage providing for the issue of a bill of lading in due course – agreed to issue a sea waybill in relation to the same sea carriage. The choice to switch from a bill of lading to a sea waybill was dictated by contingent reasons, i.e., the desire to avoid any problems with the delivery of the goods as a result of any delay in the transmission of the bill of lading.
More specifically, the Court found the Hague-Visby Rules applicable since the contract of carriage was covered by a bill of lading, while deeming of no relevance the circumstance of the parties having agreed upon the issue of a document in lieu of a bill of lading after entering into the contract.
Hence, the contract of carriage was covered by a bill of lading within the meaning of the Hague-Visby Rules, and such rules were applicable, with all the ensuing consequences in terms of the carrier’s limitation of liability.
In conclusion, the judgement confirms a well-established view of Italian case law: failure to issue a bill of lading has no relevance for the purpose of excluding the applicability of uniform rules whenever a contract of carriage is entered into which involves the carrier being required, depending on circumstances and applicable maritime uses, to issue a bill of lading.
The “gross negligence” of the carrier according to the Spanish Supreme Court.
As is known, the Convention on the Contract for the International Carriage of Goods by Road (CMR) regulates international carriage by road.
Article 23 of the CMR provides for the carrier’s limitation of liability (i.e. 8.33 units of account per kilogram of gross weight short). Article 29 of the Convention however provides that such limitation does not apply “if the damage was caused by his [the carrier’s] wilful misconduct or by such default on his part as, in accordance with the law of the court or tribunal seised of the case, is considered as equivalent to wilful misconduct”.
What is then the meaning of “default equivalent to wilful misconduct”?
The Italian Civil Code identifies such default as “gross negligence”. Indeed, as regards national carriage by road, Article 1696 (of the Italian Civil Code) on the one hand sets the carrier’s limitation of liability at 1 euro per kilogram of gross weight of lost or damaged goods and, on the other hand, expressly excludes the applicability of the carrier’s limitation of liability in case of its wilful misconduct or “gross negligence”.
The issue of the interpretation and applicability of Article 29 of the CMR arises from the circumstance that the concept of “gross negligence” does not exist in Spanish law. As a matter of fact, Spanish law only distinguishes between “wilful misconduct” (“dolo”) and “negligence” (“culpa”), depending on whether or not there is an intention to damage.
A recent judgement of the Spanish Supreme Court shed light on this issue, stating that “the circumstances that concurred during the cargo theft (parking in a dangerous location, accessible and with no surveillance, weak protection of merchandise on a trailer covered by canvas and absence of surveillance on the part of the driver) can be interpreted as wilful miscondcut in the behaviour of the carrier, due to failure to comply with his safekeeping basic duties: that will justify not to apply the quantitative limits ruled in Article 23, to be read in conjunction with Article 29 of the CMR”.
The Spanish Court therefore held that the circumstance of a carrier being aware that goods may be stolen as a consequence of its conduct is sufficient to deny its right to limited liability as provided for by CMR.
The Spanish Supreme Court therefore identified the so-called “default equivalent to wilful misconduct”, which prevents the applicability of the carrier’s limitation of liability under Article 23 of the CMR. In light of said judgment, in Spain a carrier is prevented from invoking such limitation of liability whenever it intentionally fails to comply with its safekeeping obligations under the contract, irrespective of whether there is or not intention to damage (wilful misconduct).