„Privileged“ Grounds for Relief of a Road Carrier’s Civil Liability
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Abstract
The article raises the topic of interpretation and application of „privileged“ grounds for relief of a carrier’s liability for the goods. Analysing the legal grounds for the carrier’s liability, provided for by the item 1 of the Article 17 of the CMR Convention, and comparing the mentioned provision with the national legal regulation, the author points out that, according to the Para 1 of the Article 45 of the Road Transport Code of the Republic of Lithuania, liability of a carrier for the goods under the national law of Lithuania, as distinct form the provisions of private international law, is possible only if the guilt of a carrier is established. Different basis for the carrier’s liability determines different legal significance of „privileged“ grounds for relief of a carrier’s liability. Therefore the article points to the problem of balance between the interests of a sender or consignee and a carrier.
Hereafter „privileged“ grounds for relief of a carrier’s liability, determined by the item 4 of the Article 17 of the CMR Convention and Para 2 of the Article 51 of the Road Transport Code of the Republic of Lithuania are compared, peculiarities of interpretation and application of the mentioned grounds are provided.
After making a comparison of „privileged“ grounds under the national law of Lithuania and private international law, the author notes that the substance of such „privileged“ grounds differs in most cases. Despite the grammatical formulation of a content of „privileged“ grounds, only the circumstances related to the loss or damage arising from the special risk inherent in the nature of certain kinds of goods (Item 4 d of the Article 17 of the CMR Convention and item 2 of the Para 2 of the Article 51 of the Road Transport Code of the Republic of Lithuania) concur under the provisions of national and private international law. After reaching such a conclusion, the author analyses the possibility of a carrier performing an international carriage of goods by road to rely on the „privileged“ grounds for relief of a carrier’s liability provided for by the national law of Lithuania.
The conclusion is assertive – a carrier, defending himself of a claim for damage made during the international carriage of goods by road is not legally entitled to rely on the „privileged“ grounds for relief of a carrier’s liability provided for by the Para 2 of the Article 51 of the Road Transport Code of the Republic of Lithuania.
At the end of the article the author analyses the legal consequences of determination of „privileged“ grounds for relief of a carrier’s liability under the national and private international law. In the opinion of the author, the legal impact of such grounds under the CMR Convention is a legal presumption that damage to the goods has occurred under the circumstances for which the carrier is not responsible, when under the Road Transport Code of the Republic of Lithuania it is a legal presumption that a carrier is not guilty for the rise of damage. The author asserts that by linking the civil liability of a carrier to the guilt of a carrier and at the same time providing the carrier with the additional legal instrument for defence – „privileged“ grounds for relief of a carrier’s liability, the national legislator has broken the balance between the protection of the legal interests of the parties to the contract for the carriage of goods by road and unfoundedly placed the carrier to the privileged position.
Hereafter „privileged“ grounds for relief of a carrier’s liability, determined by the item 4 of the Article 17 of the CMR Convention and Para 2 of the Article 51 of the Road Transport Code of the Republic of Lithuania are compared, peculiarities of interpretation and application of the mentioned grounds are provided.
After making a comparison of „privileged“ grounds under the national law of Lithuania and private international law, the author notes that the substance of such „privileged“ grounds differs in most cases. Despite the grammatical formulation of a content of „privileged“ grounds, only the circumstances related to the loss or damage arising from the special risk inherent in the nature of certain kinds of goods (Item 4 d of the Article 17 of the CMR Convention and item 2 of the Para 2 of the Article 51 of the Road Transport Code of the Republic of Lithuania) concur under the provisions of national and private international law. After reaching such a conclusion, the author analyses the possibility of a carrier performing an international carriage of goods by road to rely on the „privileged“ grounds for relief of a carrier’s liability provided for by the national law of Lithuania.
The conclusion is assertive – a carrier, defending himself of a claim for damage made during the international carriage of goods by road is not legally entitled to rely on the „privileged“ grounds for relief of a carrier’s liability provided for by the Para 2 of the Article 51 of the Road Transport Code of the Republic of Lithuania.
At the end of the article the author analyses the legal consequences of determination of „privileged“ grounds for relief of a carrier’s liability under the national and private international law. In the opinion of the author, the legal impact of such grounds under the CMR Convention is a legal presumption that damage to the goods has occurred under the circumstances for which the carrier is not responsible, when under the Road Transport Code of the Republic of Lithuania it is a legal presumption that a carrier is not guilty for the rise of damage. The author asserts that by linking the civil liability of a carrier to the guilt of a carrier and at the same time providing the carrier with the additional legal instrument for defence – „privileged“ grounds for relief of a carrier’s liability, the national legislator has broken the balance between the protection of the legal interests of the parties to the contract for the carriage of goods by road and unfoundedly placed the carrier to the privileged position.
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Authors retain copyright of their work, with first publication rights granted to the Association for Learning Technology.
Please see Copyright and Licence Agreement for further details.
