The Problem of Theft of Goods in Road Transport

Theft during the carriage of goods by road is becoming more and more frequent and, although it will depend on the specific circumstances in which it occurs, as a rule the carrier is held responsible so that he, or his goods insurance, is liable for the losses and possible expenses linked to the transport and enforceable by law.

The general rule is that these thefts are carried out by criminals with extensive knowledge of how the sector works, who know what drivers’ habits are and where they usually park their vehicles during their breaks, so that they can carry out the crime undetected even if it is carried out in broad daylight. In addition, they are aware of the profit they can make from the theft of certain goods and their subsequent resale, so the target is usually well defined.

In these cases, the Convention on the Contract for the International Carriage of Goods by Road (C.M.R.), as well as Law 15/2009, of 11 November, on the Contract for the Carriage of Goods by Road, which adapts and complements the information in the Convention, regulate the carrier’s liability when carrying out the transport. Thus, Law 15/2009, in Chapter V – Article 47.1, and the C.M.R. Convention, Chapter IV – Article 17.1, establish that the carrier shall be liable for the total or partial loss of the goods, as well as for the loss suffered by the goods from the moment of their reception for carriage until the moment of their delivery at destination, articles that are later qualified or delimited. According to the provisions of both regulations, the carrier should generally be liable for such losses. However, can the carrier be held liable even if the goods are stolen even though he has exercised due diligence within his powers?

The courts have addressed this issue on multiple occasions with different conclusions. The most common is to see judgments criticising the carrier’s choices in order to assess its possible negligence, but there are also judgments, such as that of the Provincial Court of Valencia 187/2018, which describes the good aptitudes and decisions taken by the land carrier to prove its diligence and its lack of liability under Article 48.1 of Law 15/2009.

In this case, the carrier had been subcontracted to carry out the overland transport of goods, and that same day the lorry was stolen in its entirety (with the goods inside) while it was parked in the carrier’s own facilities. The judgement lists the characteristics of these facilities: a well-lit plot of land, far from the urban area, completely fenced, with a padlocked sliding metal gate and 24-hour surveillance cameras.

These measures were considered insufficient by the court of first instance which concluded that the carrier did not act with the due diligence required of a professional engaged in the carriage of goods. It therefore declared the carrier and the contract carrier jointly and severally liable for the payment of the amount claimed by the applicant.

The court decision was appealed by the carriers to be exonerated from liability for having fulfilled their duty without being able to prevent the theft under Article 48.1 of Law 15/2009. This provision establishes that the carrier is not liable for the loss of the goods when this has not been caused by a negligent action on its part, or when it is due to circumstances that the carrier could not avoid and whose consequences it could not prevent.

The court of second instance indicated that the expert reports were not properly assessed and that the basis on which the assertion concerning the alleged lack of diligence of the carriers was supported was not properly substantiated. On this basis, it decided to carry out a more in-depth assessment of the reports.

Having analysed the characteristics of the place where the vehicle was parked, the court concluded that the carrier could not be accused of a lack of diligence, as the measures taken were appropriate and in accordance with manner, place and time. Thus, the court established that, in order to hold a carrier liable for the loss of goods, it is necessary to verify his professional diligence, the safety measures taken, the vigilance and care implemented.

Accordingly, the court ruled in favour of the carrier, considering that the carrier had taken reasonable measures to prevent the theft of the truck. To this end, he referred to the application of the grounds for exoneration provided for in Article 48.1 of Law 15/2009, and made special reference to the conduct of the offenders, which far exceeded the reasonable expectations of the carrier.

In view of the above, and in response to the question posed initially, we must analyse what the court considers as diligent or not in the carrier’s performance.

Through various case law, the courts have made it clear that, in order to consider the carrier’s conduct diligent and to be able to exonerate him from liability under article 48.1 of Law 15/2009, certain characteristics must be present in his manner of acting. The Provincial Court of Barcelona, rec. 125/2013, stated that, in order for the carrier to be exonerated from liability, it must comply with reasonable safety standards.

These requirements include, among others, the following characteristics: that the car park is fenced, that it has good lighting, that it does not have free access for all types of vehicles or pedestrians, that it has surveillance cameras recording 24 hours a day, the presence of specific personnel for surveillance, control of entrances and exits, that it is not in an isolated or little travelled area, and that the access door is of an adequate height. Reference should also be made to Article 1105 of the Civil Code, according to which no one is liable for events that could not have been foreseen or were unavoidable.

If the carrier complies with the aforementioned requirements, it would be within the unavoidable causes or circumstances, and therefore, a cause for exoneration of liability could be applied, since they have acted with the required good professional diligence, respecting the necessary safety measures.

In short, it is not always appropriate to hold carriers liable in such cases, especially when they have taken safety measures appropriate to the situation, place and manner. Although theft in the carriage of goods is a growing problem, the law recognises that the carrier cannot be held liable for events beyond its control, provided it has acted with due care.