The responsibility for the International Carriage of Dangerous Goods by Road can be identified in the light of the Geneva Convention, the document signed by all countries to provide a standard regulation of international carriage of goods by road. With their ADR and mediation expert attorneys, International Law Firm Damiani & Damiani in Italy can count on extensive experience in international carriage of dangerous goods by road and the European agreement concerning the international carriage of goods by road.
European agreement concerning the international carriage of goods by road
The Geneva Convention regulates the international carriage of goods by road. It is a European agreement concerning the international carriage of goods by road. The key elements of the Convention are the merchandise and the place of taking over and delivery of the goods. Place of residence and citizenship of owner, consignee and contract parties are irrelevant. What is relevant is that in the International Carriage of Dangerous Goods by Road and in the European agreement concerning the international carriage of goods by road, the merchandise:
- is carried by road on vehicles;
- the place of taking over of the goods and the place designated for delivery as specified in the contract, are situated in two different countries, of which at least one is a contracting country of the European agreement concerning the international carriage of goods by road.
The Convention guidelines to use in ADR mediation international actions concerning the international carriage
The document that travels with the merchandise is the Geneva Convention’s consignment letter.
The letter establishes the carrier’s legal liability as well as the duties connected to the transport of the merchandise from the place of taking over to the place designated for delivery, if necessary with the support of third subjects (sub-contractors). To recap the elements of the carrier’s liability:
- the carrier is liable in case of total or partial loss of goods or deterioration occurred between the time of reception and the time of delivery of the goods, and for the delay in delivery.
- the carrier is exonerated by liability if the loss, deterioration or delay are the fault of the person entitled, in case of order of the entitled party not dependent on fault of the carrier, in case of defect proper to the goods, lack of packaging, and completely unavoidable facts or circumstances which the carrier could not avoid and the consequences of which could not be remedied by the carrier.
CMR and International Carriage of Dangerous Goods by Road
In International Carriage of Dangerous Goods by Road, thanks to ADR it is possible to establish sender’s liability, carrier’s wilful misconduct, consignee’s rights, sender’s compensation, rights’ time limit. The European Agreement concerning the International Carriage of Dangerous Goods by Road ensures that any dangerous goods transported by road can cross international borders freely if the goods, vehicles, and drivers comply with its rules.
The sender, as a matter of fact, has a responsibility towards the procedures regulating international transport of goods. The sender is responsible towards the carrier for damage to persons as well as for any expenses resulting from faulty packaging – unless, being such faults apparent to the carrier, he enters his reservations in the CMR note. Moreover, the sender has the right to dispose of the goods, and to ask the carrier to stop the goods in transit, to change the place at which delivery is to take place or to deliver the goods to a consignee other than the consignee indicated in the CMR note.
With regards to the international carriage of goods by road, the Civil Section of the Italian Court of Cassation requires, in order to ascertain the unlimited liability of the carrier, that a carrier’s negligence is identified and that in accordance with the law of the court or tribunal seised of the case, is considered as equivalent to wilful misconduct. Consequently, according to the principle whereby, regarding contractual responsibility, the juridical consequences of gross negligence are treated as those of wilful misconduct, any limitation to the carrier’s responsibility is to be excluded in case of gross negligence of the carrier or any subject acting on his behalf. Gross negligence can be defined as an extraordinary and inexcusable imprudence and omitted observation of minimum diligence.
What happens when the sender asks for damage compensation
When asking for damage compensation for the loss of the merchandise, the sender has the only burden of proving the loss and the value of the merchandise. However, he is not requested to prove to have compensated the consignee for the failed delivery. The burden of proving what prevented him from delivering the goods, as well as the burden of proving that the sender had already been provided with the price of the lost merchandise and the consignee didn’t ask for restitution, are on the carrier.
Time limitation of rights towards the carrier
The period of limitation for the consignee to take out an action arising out of carriage under the Convention is one year. However, in case of wilful misconduct, or such considered as equivalent to wilful misconduct, the period of limitation is three years. A written claim suspends the period of limitation until the date the carrier rejects the claim in writing and returns the documents attached.
