The Gazette 1985

SEPTEMBER

1985

GAZETTE

Submission of Articles The Editorial Board welcomes the submission of articles for consideration with a view to publication. In general, the most acceptable length of articles for the Gazette is 3,000-4,000 words. However, shorter contri- butions will be welcomed and longer ones may be con- sidered for publication. MSS should be typewritten on one side of the paper only, double spaced with wide margins. Footnotes should be kept to a minimum and numbered consecutively throughout the text with super- script arabic numerals. Cases and statutes should be cited accurately and in the correct format. Contributions should be sent to: Executive Editor, Law Society Gazette, Blackhall Place, DUBLIN 7. We are in a unique position to offer the following:- • Combination of qualified Accounts Assessors and Agricultural Graduates. • Largest computerised Farm Data Bank in Ireland with Farm Enterprise Earnings Range. • Countrywide network of offices. To provide the following back-up services in Loss Assessments related to Agricultural Earnings. • Loss of income claims . CPO . Damages Assessments • Expert Reports . Inspections and Opinions . Expert Witness. IFAC Irish Farm Accounts Co-Operative Society Limited, Head Office, Irish Farm Centre, Bluebell, Dublin 12. Phone: Peadar Murphy at (01) 501166- 501022 AGRICULTURAL LOSS ASSESSMENT

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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