Law in practice

Recently, I helped a young colleague prepare her thesis as a consultant. It was a nice paper, and when he presented the bound copy and thanked me for my help, I indicated that all he had to do now was to settle the 4-5 thousand claims and he would really start to understand. In 35 years of my career I have come across I don’t know how many liability claim files as a lawyer. I must have reached the number mentioned to the young colleague in the first ten years. Nobody comes out of university as a specialist lawyer. Postgraduate training for lawyers is after graduation. I am grateful to fate that I was able to gain work experience, first at MALÉV and then at HUNGAROCAMION’s legal department, which was linked to my first qualification as a specialist lawyer. The training as a specialist foreign trade lawyer then also included the specialism of a transport lawyer. Air transport and international road haulage law are areas of law governed by international conventions. The task of a specialist lawyer in a particular case is to establish whether and to what extent the carrier is liable for the damage caused under the rules of the convention in question. Although, as a general rule, the carrier is liable for loss of goods, damage to goods or delay in delivery of goods, a specialist lawyer is usually needed to draw the correct legal conclusion on the basis of the facts of the case. The exemptions from liability, the various presumptions (facts to be taken as true unless proven otherwise), the system of burden of proof and, last but not least, the limitation of liability to a certain amount or its breach require a complex legal conclusion. But this is only one part of the story, since most liability claims are – or are not – settled by some form of liability insurance. Liability insurance – in our case, the insurer’s liability is governed by the terms of the carrier’s liability insurance. For the purposes of the liability obligation, the first question is whether the legal liability for damages (here carrier’s liability) covered by the liability insurance exists. This is where the story becomes threefold: there is the insurer, who has a financial interest in pleading lack of liability in a situation of doubtful liability. There is the injured party, who has an interest in having his claim settled by the insurer, if possible, and not by the less well-funded carrier. Finally, like that red-hot piece of iron between the anvil and the hammer, there is the insured carrier, who has an interest in seeing the injured party who has entrusted him with the claim settled and in being able to keep the claim. Although insurance cover is limited to the compensation payable under the carrier’s legal liability, it is not only the knowledge of the carrier’s lawyer that is needed to handle the case. It also requires the knowledge of the insurance lawyer to be able to take a well-founded legal position against the insurer with regard to the insurance cover, the insurer’s indemnity, the risks excluded from cover and the limit per claim. So far we have talked about professional legal competence, but there is also a practical aspect: language skills. As transport law is by definition the law of the carriage of goods over long distances, within Europe, German is a requirement, English is a requirement, but additional language skills may be necessary. The beauty of transport law and related insurance law is precisely its difficulty: even the thousandth case may be one that has never been dealt with before, and life always brings new situations. That’s why you never get bored.

The liability of the carrier is limited in more aspects by the CMR Convention. On one hand side by the causes which make the carrier free from liability, on the other hand side by the limit of liability up to 8.33 SDR/kg. However this comfortable liability situation is lost if Art 29 of the CMR Convention shall apply: “Article 29 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 willful misconduct or by such default on his part as, in accordance with the law of the court or tribunal seized of the case, is considered as equivalent to willful misconduct. The same provision shall apply if the willful misconduct or default is committed by the agents or servants of the carrier or by any other persons of whose services he makes use for the performance of the carriage, when such agents, servants or other persons are acting within the scope of their employment. Furthermore, in such a case such agents, servants or other persons shall not be entitled to avail themselves, with regard to their personal liability, of the provisions of this chapter referred to in paragraph 1.” It depends on the interpretation of the law enforcer, what will be understood in willful misconduct of the carrier or in such default on his part as, in accordance with the law of the court or tribunal seized of the case, is considered as equivalent to willful misconduct. In the Hungarian law cases we hardly see the liability stated according to the Art. 29. The willful misconduct is relatively clear in the Art. 29. of the CMR convention – for example if the employee of the carrier committed theft. However “such default on his part as, in accordance with the law of the court or tribunal seized of the case, is considered as equivalent to willful misconduct” is much harder to interpret. If a loaded semitrailer is stolen from an unguarded area without cameras, the court may oblige the carrier to pay full compensation – depending on the circumstances of the case.