Crushed machinery on a sealed trailer: CMR liability and recourse
A haulier established in Lithuania accepts 24 pallets of machine parts in Milan for delivery to Munich under a CMR consignment note. The consignor packs and loads the goods and seals the trailer; the carrier's driver does not supervise loading. The CMR notes a total gross weight of 8,400 kg but does not declare a value. On arrival the seal is intact, but three pallets are crushed. The consignee writes on the CMR 'signed subject to inspection; damage not yet quantified' and later obtains a repair estimate of EUR 18,400. The carriage charge was EUR 2,300. The carrier had subcontracted the actual transport to an owner-driver, who used his own tractor and the carrier's trailer. The damaged pallets weigh 1,050 kg gross. The carrier's insurer asks whether the carrier can reject the claim because the seal was intact and the consignor loaded the vehicle.
1. Is the carrier liable to the consignee under the CMR, and how do the intact seal and consignor loading affect that answer?
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Under CMR Art 17(1) the carrier is liable for loss or damage between taking over and delivery, unless it proves one of the Art 17(2) exceptions. The carrier must prove both the cause and that it was not responsible. An intact seal is evidence, but not conclusive: it may show no third-party access, yet crushing can still come from inadequate packing, loading by the consignor, or transit shock. Because the consignor packed and loaded, the carrier can argue insufficient packing or loading under Art 17(2)(b)-(c), but it must show that this, rather than the carrier's handling, caused the damage. The consignee's note 'signed subject to inspection' is a reservation; under Art 30 damage should be notified within seven days, and a vague note creates evidential risk. The carrier should not reject the claim solely on the seal. It should appoint a surveyor, inspect the pallets and stowage, and decide whether the exception can be proved. On the facts, liability is likely unless the survey establishes a packing or loading cause.
2. Assuming liability is established, calculate the CMR limitation and explain whether the full EUR 18,400 is recoverable.
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CMR Art 23(3) limits compensation to 8.33 SDR per kilogramme of gross weight of the goods affected. For 1,050 kg: 1,050 x 8.33 = 8,746.50 SDR. The SDR/EUR rate on the date of judgment or payment must be used; at an illustrative EUR 1.20/SDR this is about EUR 10,496. The repair estimate of EUR 18,400 exceeds that cap. Under Art 23(4) the carrier must also refund carriage charges proportionately: 1,050/8,400 = 12.5%, so 12.5% x EUR 2,300 = EUR 287.50. The cap can be exceeded only if the consignor declared a special interest in delivery under Art 24/26 or if the carrier committed wilful misconduct or a default equivalent to it under Art 29; neither is suggested here. Therefore the full EUR 18,400 is not recoverable; the claim is limited to 8,746.50 SDR plus the proportionate carriage charge, subject to any contractual excess or insurance position.
3. What should the carrier do to preserve recourse against the subcontractor, and what time limits apply?
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The carrier remains liable to the consignee; it cannot pass the claim on by saying the owner-driver did the work. Recourse depends on the subcontract. The carrier should notify the owner-driver immediately, preserve the CMR, seal record, loading photographs, weighbridge ticket and survey report, and ask the subcontractor's insurer to attend. If the subcontract is on CMR terms, notice of damage must be given within seven days of delivery under Art 30, and the time bar is one year under Art 32, or three years for wilful misconduct. Even if the subcontract is not CMR, the carrier should give written notice promptly and check any contractual notice period. It should not admit liability to the consignee before the survey. If the owner-driver used the carrier's trailer and the seal was intact, the same causation issues apply; the carrier may still recover if it can show the subcontractor's loading or driving caused the damage.