Summary

Carrier’s liability is characterised by it being limited. Pursuant to Article 23 (3) of the CMR, the maximum amount of compensation is 8.33 SDR per kilogramme of gross mass. However, the carrier’s liability is not always limited. Article 29 (1) of the CMR provides that the carrier shall not be entitled to avail himself of the provisions of this chapter which exclude or limit his liability or which shift the burden of proof if the damage was caused by his 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. As Article 29 of the CMR refers to national law, there is no consensus in international circles regarding the meaning of the phrase “wilful misconduct”. In the case-law of the Supreme Court, similarly to the provisions concerning carrier’s contract in the Law of Obligations Act, it entails intention and gross neglect. However, in several other countries, awareness of the likelihood of damage is laid down as the minimum assumption of intentional illegal activity. Under Estonian law, gross negligence is objective and therefore wilful misconduct may arise in Estonia even if the carrier never had that intention, i.e., in the case where the carrier has no interest in the consequences and awareness of their illegality.

Where several subjects are involved in a single carriage chain, then in order to identify wilful misconduct first the carriers involved in the carriage and their contractual obligations must be clarified. The author believes that the mere fact that a cargo was unloaded in a location different from that specified in the CMR consignment letter cannot be treated as wilful conduct. If the main carrier instructed a sub-carrier to unload a cargo in a location other than that specified in the CMR, the possible infringement due to intentional unlawfulness must be identified at the level of infringement by the main carrier.