The carrier’s legal liability is the most relevant aspect of international transport on behalf of a third party. The choice of freight agent and his responsibility in performing the transport is decisive to the success of the shipping of goods from one State to another.
Here is how freight insurance works. The aspects of the freight carrier’s liability in the transport of goods:
- liability for theft;
- liability for delayed delivery;
- liability for damage or deterioration;
- liability for loss or failed delivery.
The clauses of international contracts for goods transport identify the carrier’s legal liability
As clarified by Damiani & Damiani International Law Firm, operating in the field of carrier’s legal liability insurance in Italy, international contracts for transport of merchandise shall contain clauses that protect freight agents from liability in certain cases of failed delivery of the goods in their custody, when the cause does not depend on them. Some of this causes can be:
- strict liability – in this case there are no proofs that freight agents can use to exempt themselves from liability;
- liability by presumption, whereby a proof to the contrary is admitted – it just admits an inversion of the responsibilityof the proof;
- situationsin which the typical negligence ex recepto can determine the judgment, that is to say the liability for a failure to fulfil the obligation towards goods in custody.
It is not easy to determine exactly the cases of freight agent’s liability, considering the numerous conditions that may lead to merchandise loss, or deterioration, or to failed delivery – as well as the fact that they might not depend on the freight agent’s direct will or negligence.
The freight agent’s liability in multinationalcarriage of goods and restrictions to reimbursement in case of accident
Considering the impossibility to foresee all that can happen during a transport, international law has stated that:
- case law recalls the equivalence between gross negligence and wilful misconduct in regards to carrier’s responsibility in worldwide carriage of goods;
- theft can be considered a casual event only when entirely unavoidable;
- compensation limits are not operating in cases originating from the agent’s reckless conduct;
- the Convention is only applicable if specifically statedin the contract.
The International Multimodal Transport Operator. Responsible for unloading freight
What’s more, along with carrier legal liability insurance, international transport contracts are even more complicated, considering how they need to take account of the International MultimodalTransport Operator and indicate who is responsible for unloading freight. Numerous operators need to be able to manage the complex transport of goods shipped from one country to another, with different means of transport such as ships, planes, trucks, by sea, by air, by road, loading, unloading and delivering the goods.
The importance of a good lawyer expert in international commerce law. What is carrier’s liability and why carriers are liable.
The law has established a compensation limit for the agent that operates the transfer of goods between different States. The reimbursement is determinedconsidering the worth of the goods at the moment and the location of their reception,as well as a number of external factors, namely:
- the stock market;
- the actual selling value;
- the typical price of the goods.
A common principle in international law practice, recognized by most States excludes any limitation to reimbursement when the harm can be connected to the carrier’s willful misconduct, or to any conduct lacking the necessary conscientiousness, and that make the carrier liable per se for the goods collected.
From this point of view, when configuring the carrier’s liability in international carriage of goods, the Convention establish esca sasin which any limitation to reimbursement is excluded, in regards to specific drawing rights, to willful misconduct or fault. In Italy, willful misconduct and gross fault are considered equally when it comes to carriage of merchandise, therefore limitations are not valid whenever there is an unjustifiable carelessness, or the necessary consciousness is not observed.
The issues related to the defense of the owner of the merchandise within the contract of international carriage
The subjects in a contract of international carriage are minimum three:
- the sender, who owns of the merchandise;
- the freight agent, organizer of the carriage;
- the carrier, who carries the merchandise.
More often than not, nevertheless, there is not an actual contract between sender and carrier, as contract of carriage is actually between shipper and carrier –hence whythe sendershall not sue the carrier for losing or damaging the merchandise, failing to deliver, and so on.
Italian law protects the sender from the risk of loss in contracts of multinational carriage. The shipping agent assumes the prerogatives and obligations on their own behalf and on the sender’s. In order to defend the goods’ owner, the freight agent must take action against the chosen transporter, who caused the harm. Nevertheless, the subjects entitles to sue the transporter is for the subject that suffered a prejudice because of the lost or damaged merchandise. Therefore, it is necessary to demonstrate that the sender suffered damage. International rules on trans-national transport are obviously very complicated. The parties in a transport contract are very different and have various degrees of reciprocate responsibility. These different degrees might occasionally overlap when performing duties and fulfilling obligations such as reception and loading of the goods by the transporter, the carriage itself, unloading once the destination is reached and delivering the goods to the consignee.
