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GAZETTE
SEPTEMBER
1985
recovery rate, even for some of the very large articulated
vehicles, is low. Many carriers seek refuge in Article 17.2
on the basis that the loss occurred due to "circumstances
which the carrier could not avoid and the consequences of
which hewas unable to prevent". The case is made that the
driver took all reasonable steps to secure the vehicle by
locking it and only left it unattended for a short time. It is
also argued that the loss of the goods was due to the
wrongful act ol third parties, over whom the carrier had
no control.
Case Law
There are no Irish reported decisions on the applica-
bility of the CMR Rules to this point but the English
authority of
Michael Galley Footwear Limited
-v-
Iaboni
[1982] 2 All E.R. 200 would probably be followed by our
Courts. In that case a lorry was stolen from an unguarded
lorry park in Milan while the driver and his helper went
for a meal. The lorry had an alarm system which was de-
activated by the thieves and the vehicle and its cargo of
shoes were stolen. The judge found against the carrier on
the grounds that the carrier had to show that he could not
have avoided the loss and that in the circumstances of the
particular case the test of negligence did not apply. He put
the point rather neatly when he said: "It seems to me that
the Articles are not concerned with fault, but are
concerned to make clear where, on any given set of facts,
the risk between innocent parties shall lie. . .".
The Judge held that either the lorry driver could have
gone to a secured compound which was guarded or either
he or his helper could have remained in the vehicle while
the other was eating. The decision is not authority for the
proposition that no carrier who has a vehicle or goods
stolen en route can escape liability. If the circumstances
are such that the carrier could not have avoided the loss
then he will escape. For example, if the driver did wait in
the lorry and had his snack there but was overpowered by
thieves one could see that the Court might absolve the
carrier. But I mention this Case because it appears to be
relevant to a point which does arise quite frequently in
CMR cases.
This article is intended to draw attention to some
of the questions and problems which seem to arise
most frequently for consideration when handling a CMR
claim. No doubt practitioners who have been doing this
sort of work have come across other problems which are
not covered here. Whether the Convention becomes part
of our domestic legislation or not we can all expect to see a
greater number of CMR claims coming before the Courts
and a greater awareness of its implications for those
involved in trade, insurance and the international
carriage of goods by road.
Copies of the other papers delivered at the Seminar are
available from Petria McDonnell, Hon. Sec. of the Irish
Maritime Law Association, 30 Upr. Pembroke Street.
Dublin 2.
* Adopted from a lecture given to the Irish Maritime Law Association
at its recent Seminar.
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