Carrier’s liability in cargo theft

Although unwanted, it is an every-day fact to receive news from carriers who suffered theft or robbery while having the truck fully loaded with goods and in transit according to the agreed contract of carriage.   In fact, there are geographical areas which are particularly problematic in this regard on both levels, national and international. The liability system for road carriers is the same in international carriage (CMR Convention, arts. 17-29) as in national carriage in Spain (Law 15/2009 from 9th of November – LCT, arts. 46-63). The carrier is not only accountable for damages or late delivery of the entrusted cargo but also for losses caused by a robbery or any other reason.

By reporting a robbery to the Shipper and to the Contracting Carrier, in case there is a subcontracting agreement in the process of the carriage, a number of protocols come into play and the performance and diligence displayed by the effective carrier, the victim of the robbery, is always a crucial factor.

Although effective carriers’ first impression might be that a robbery is something unpredictable and unavoidable, considering that their insurance policy covers this type of incidents, the truth is that the insight shared by cargo and/or transport insurance companies is different. Moreover, their opinion is endorsed by Spanish jurisprudence with increasingly frequent and categorical sentences.

In the absence of a legislation demanding very specific requirements from road hauliers while being in charge of the cargo they are transporting, the insurance companies and the jurisprudence examine a chain of aspects corresponding to their behavior prior to the robbery in order to determine to what extent the haulier is responsible for the occurred incident.

There are several facts that insurance companies take into account in their analysis of the incident, as they require from their surveyors to study and examine them, point by point, in order to determine whether in the performance of the haulier existed the due diligence, and to conclude whether the incident is covered by the policy or not, or whether the compensation to be paid is limited or not on the basis of limitative criteria of liability (CMR art. 23.3 – LCT art. 57.1). Let us not forget, that this limit would no longer apply if the carrier had caused the cargo robbery due to his grossly negligent or willful misconduct (CMR art. 29 – LCT art.62).

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