318 / 406
GAZETTE
SEPTEMBER 1985
pondence between the parties should be available to
establish that the claim was made within the
relevant period.
When the claimant has established the contract and
that the consignment was received in good order and
condition and was delivered damaged it is for the carrier
to establish a Defence under Article 17.2or Article 17.4of
the Convention as the onus of proof shifts to him. If he is
unable to shift the burden of proof he is entitled to limit
his liability in accordance with Article 23 of the
Convention. Alternatively, he can plead that the action is
time barred if the requirements of Article 23 have not
been complied with by the claimant. Although a carrier
named as Defendant in proceedings may have been the
contracting carrier and not the actual carrier, he is still
liable to the claimant for any loss of, or damage to, the
goods. But where he is only one of a number of carriers or
where he has sub-contracted the work out to another
carrier he can spread his liability by third party
proceedings through which he may either be indemnified
or receive contribution towards the Plaintiffs award
which has been made against him. It is open to the carrier,
in certain circumstances, to counterclaim against the
Plaintiff. Article 10 of the Convention makes the sender
liable to the carrier for damage to persons, equipment or
other goods and for any expenses due to defective packing
of the goods, in? ss the defect was apparent or known to
the carrier at the time when he took over the goods and he
made no reservations concerning it. The carrier may also
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have a counter-claim for freight due in respect of the
consignment. Article 23.4 does entitle the claimant to a
complete refund of charges incurred in respect of the
carriage of the goods in the case of total loss and to a
pro
rata
refund in the case of partial loss but it frequently
happens that where a dispute has arisen over the arrival of
damaged goods and where freight has not yet been paid
that it is withheld by the claimant. In such a case the
carrier can properly counter-claim for the freight.
Sometimes the carrier takes the initiative and brings a
claim for freight which is then met by a counter-claim
from the consignor or consignee on the grounds that the
goods were damaged. It should be noted that in England
the Courts have held that in such circumstances the owner
of the goods is not entitled to claim a set-off on the basis of
the counter-claim.
In the case of
R.H. &D. International Limited
-v-
I.A.S.
Animal Air Services Limited
[1984] 2 All E.R. 203 the
Court held that the well established rule of Common Law,
that a carrier's claim for freight is to be paid in full on
delivery of the cargo and cannot be subject to any
deduction or abatement by way of a set-off counter-
claiming against the carrier in respect of the cargo,
whether the counter-claim be for loss or damage to the
cargo or for delay in delivery, is not confined to contracts
ot carriage by sea but extends to claims for freight for the
carriage of goods by road which are subject to the CMR
Convention. If this decision were to be followed here it
would seem that a carrier with a claim for freight brought
on foot of a Summary Summons would be entitled to
judgment before the Master of the High Court once he
proved that he had earned the freight even though the
consignor or consignee might state a counter-claim on
Affidavit based on the fact that the goods arrived
damaged and may be seeking a set-off. It would follow
that the counter-claim be remitted for Plenary hearing if
there was an issue of fact but that the carrier would be
entitled to summary judgment in such circumstances for
his freight.
A carrier, joined as Defendant in proceedings on CMR
case, will usually seek to avoid liability on the grounds
that he can set up a Defence under Article 17.2 or Article
17.4 of the Convention. The driver of the vehicle carrying
the load will usually be an essential witness and the
surveyor retained on behalf of the carrier will also be
required, unless he is in agreement with the Plaintiffs
surveyor as to the cause of damage. The surveyor is also
important from the Defendant's point of view in assisting
the Court as to whether or not a reasonable salvage figure
was arrived at or obtained and he can usually give first-
hand information to the Court on the efforts (if any)
taken by the consignee to mitigate its loss.
In my experience this is an area in which considerable
sums can be saved or lost by the respective parties to an
action. While, therefore, the carrier's surveyor may agree
as to the cause of the damage, his evidence may neverthe-
less be required on the other issues just referred to.
Considerable time and money can be wasted by carriers
in contesting claims where consignments of meat have
been stolen intransit. The theft of both vehicles and their
cargo in certain Italian cities has reached epidemic
proportions. It is not at all uncommon for a lorry driver to
lock-up his lorry and to to a near-by café for a quick snack
only to return and find his vehicle and contents gone. The
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