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.