Netstal-Maschinen v. Dons Transport
Nevil Phillips, instructed by Kay Pysden previously of Davies Lavery, for the Defendants
CARRIAGE OF GOODS BY ROAD: DAMAGE OF GOODS: TOTAL LOSS: WILFUL MISCONDUCT: CMR CONVENTION: ARTICLE 17.2 CMR
In this case cargo interests and their insurers sued a road carrier for damage to cargo that had occurred when the tractor/trailer unit was involved in an accident on a motorway in Belgium. The accident was caused by the driver swerving to avoid a wild boar lying dead on the inner carriageway, he believing it at the time to be a human being. The defendants successfully upheld a defence under Article 17.2. of the CMR Convention, which provides that the carrier is not liable for damage caused through circumstances which the carrier could not avoid and the consequences of which he was unable to prevent.
DMC Category Rating: Developed
This case note is contributed by Kay Pysden, of the London law firm Pysdens.
Having successfully negotiated the first hazard, the driver moved into the offside lane and was immediately confronted with a second obstacle – the occupants of the unlit Mitsubishi standing behind their stricken car in his path trying to attract his attention to their car stranded in the offside lane. The driver’s response was to brake sharply and then move back into the inside lane. This caused the brakes to lock so that the tractor-trailer combination jack-knifed, went out of control and the trailer collided with the central reservation.
The force of the collision caused the machine to break free and topple on to the road, as a result of which it suffered irreparable damage. The Belgian police who examined the tachometer found that the driver had not exceeded the prescribed driving speeds.
The leading English case on the construction of Article 17.2 is the decision of Mustill J (as he then was) in Silber v Ireland Trucking  1 Lloyd’s Rep 243. Judge Hallgarten reviewed the case stating that it had "plainly stood the test of time" but needed to be approached with some degree of caution. He referred to the "test" set out by Judge Mustill that "the carrier is exempt from liability if he proves either that he exercised a high degree of care or that the loss would have happened even if he had exercised a high degree of care". He went on to set out Judge Mustill’s definition of high degree of care as "somewhere between on the one hand a requirement to take every conceivable precaution, however extreme… and on the other hand, a duty to do no more than act reasonably in accordance with prudent current practice". Judge Hallgarten noted that Judge Mustill expanded on his definition later in the same paragraph to include taking account of the "financial practicability of the suggested precautions".
The judge clarified the ‘caution’ referred to above as follows:
Having applied Silber, Judge Hallgarten concluded that there was no suggestion in any of the relevant case law that the driver was somehow required to exercise a greater degree of care than that which would ordinarily apply in relation to the vehicle, route, conditions or carriage in question.
The final question to answer was whether, even if the driver had taken the steps suggested by the claimants, the same result would have occurred. Judge Hallgarten thought that the driver "exercised remarkable skill in avoiding the boar, the men and, to all intents and purposes, the Mitsubishi", and that even if he had travelled at 45 mph, the vehicle would have still suffered a serious accident. The driver would not, in the agony of the moment, have been able to exercise what was described as "controlled braking".
Judge Hallgarten accepted the evidence of the defendants’ expert that the driver would have needed to be traveling at a speed "grossly below 45 mph" in order to take effective avoiding action. The accident would, therefore, not have been avoided had the driver been travelling at 45 mph. He also found that the likelihood was that, at the least, very serious damage would have eventuated if an accident had occurred at the lower speed suggested by the claimants. Consequently, he concluded that the claim failed.
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