Summary

The article analyses relieving a carrier of liability in situations in which damage was caused through circumstances which the carrier could not avoid and the consequences of which he was unable to prevent (Convention on the Contract for the International Carriage of Goods by Road (CMR) Article 17 (2)). This is the most commonly used grounds for relieving carriers of liability. The article also takes a brief look at the relief of liability when the loss or damage arises from special risks (CMR Article 17 (4)).

The author explains that if a carrier is unable to prevent the circumstances that caused damage, or avoid the consequences thereof, they shall be liable only when the loss or damage arose under special circumstances that could not have been prevented by the carrier even in the case of higher degree of diligence than usual. The extent of the higher degree of diligence shall be determined by the extremely diligent conduct of a hypothetical professional carrier in a similar situation. The higher degree of diligence of a carrier is a concept that changes over time and needs to be furnished separately in each case by analysing the circumstances as a whole. Often, the line between relieving the carrier from liability due to circumstances is vague, therefore it cannot be claimed that there are any number of specific circumstances that would always relieve a carrier from liability or rule out such liability. The scope of circumstances that could relieve a carrier under the CMR is wider than the concept of force majeure and deeming any circumstance unavoidable depends, among other things, on the actions of the carrier in a specific situation.

The burden of proof in relation to circumstances stated in CMR Article 17 (2) and (4) varies. If the circumstance established in Article 17 (2) of the CMR must be proven by a carrier, the burden of proof for the circumstances stated in Article 17 (4) of the CMR is divided between the sender and the carrier.