Practical aspects of liability of contractual automobile road carrier on behalf of subcarrier
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Abstract
Automobile road cargo carriage is an important component of Lithuanian economy. Because of various cargo transportation means, differing content of cargo carriage contracts and number of contract parties in case of harm a lot of problems arises defining the person or persons liable for cargo loss, damage or delayed delivery.
With increase number of cargo carriage with participation of several carriers or carriers and shippers it is important to define how regulations of civil liability should be applied to these persons in case of cargo loss, damage or delayed delivery.
According to the article 3 of CMR Convention a carrier having made contract with cargo consignor (a contractual carrier) is considered liable for used services of all other persons if these persons execute his obligations. Though the subcarrier (the actual carrier) having participated in execution of the contract not in all cases is directly liable to cargo consignor or consignee for cargo loss, damage or delayed delivery.
Subcarriers may be subject of civil action brought by the cargo consignor or consignee only in case when according to single contract a single carriage was executed in succession by several carriers (the article 34 of CMR Convention), i.e. subcarriers joined the contract signed by cargo consignor and contractual carrier in their own name in conformance with the terms foreseen in the article 35 of CMR Convention and carried cargo in their own name, at their own risk and responsibility.
If the actual carrier has joined cargo carriage contract signed by cargo consignor and contractual carrier without conformance to the terms foreseen in the article 35 of CMR Convention or the subcarrier executed only the assistant function for the contractual carrier and carried cargo in the name, at the risk and responsibility of the contractual carrier then such relations may not be qualified as a carriage executed in succession by several carriers. Therefore in case of such legal situation cargo consignor has no right to bring an action against subcarrier because no contractual relations bind cargo consignor or consignee to subcarrier (actual carrier). The only exception from the rule is the case when action against subcarrier is based on actionable tort having arisen out of the fact that execution of subcarrier burden is considered malefaction or intentional breach of administrative law.
While analyzing problems discussed comment of provisions of the article 3, article 34 and article 35 is given alongside with the implementation of these articles in the court practice of Lithuania and Western Europe countries.
With increase number of cargo carriage with participation of several carriers or carriers and shippers it is important to define how regulations of civil liability should be applied to these persons in case of cargo loss, damage or delayed delivery.
According to the article 3 of CMR Convention a carrier having made contract with cargo consignor (a contractual carrier) is considered liable for used services of all other persons if these persons execute his obligations. Though the subcarrier (the actual carrier) having participated in execution of the contract not in all cases is directly liable to cargo consignor or consignee for cargo loss, damage or delayed delivery.
Subcarriers may be subject of civil action brought by the cargo consignor or consignee only in case when according to single contract a single carriage was executed in succession by several carriers (the article 34 of CMR Convention), i.e. subcarriers joined the contract signed by cargo consignor and contractual carrier in their own name in conformance with the terms foreseen in the article 35 of CMR Convention and carried cargo in their own name, at their own risk and responsibility.
If the actual carrier has joined cargo carriage contract signed by cargo consignor and contractual carrier without conformance to the terms foreseen in the article 35 of CMR Convention or the subcarrier executed only the assistant function for the contractual carrier and carried cargo in the name, at the risk and responsibility of the contractual carrier then such relations may not be qualified as a carriage executed in succession by several carriers. Therefore in case of such legal situation cargo consignor has no right to bring an action against subcarrier because no contractual relations bind cargo consignor or consignee to subcarrier (actual carrier). The only exception from the rule is the case when action against subcarrier is based on actionable tort having arisen out of the fact that execution of subcarrier burden is considered malefaction or intentional breach of administrative law.
While analyzing problems discussed comment of provisions of the article 3, article 34 and article 35 is given alongside with the implementation of these articles in the court practice of Lithuania and Western Europe countries.
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Please see Copyright and Licence Agreement for further details.
