Alena v. Harlequin Transport

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DMC/SandT/42/02
Alena Ltd. v. Harlequin Transport Services Ltd
Commercial Court: Morison J.: 20 November 2002
Mr. B Doherty, instructed by Clyde & Co for Alena
Mr. J Russell, instructed by Holmes Hardingham, for Harlequin
ROAD HAULAGE: CMR CONDITIONS: ALLEGED BRAKE FAILURE: LOSS: LIABILITY: AMOUNT OF COMPENSATION: LIMITATION OF LIABILITY: WHETHER ACCIDENT CAUSED BY WILFUL MISCONDUCT OF CARRIER UNDER ART.29 CMR
Summary
In this case, the claimant cargo interests failed to establish that the accident in which the cargo had been lost had been caused by the ‘wilful misconduct’ of the defendant carriers under Article 29 of the Convention on the Contract for the International Carriage of Goods by Road (‘CMR’), to which the contract of carriage was subject. Whilst the documentary evidence produced by the defendant carriers relating to the repair and maintenance of the allegedly defective tractor unit was inadequate, the judge placed considerable reliance on the statutory regime that was in place in the UK to ensure regular and effective vehicle maintenance. There was evidence that the vehicle in question had undergone a number of surveys and inspections in the six months before the accident without adverse comment.

DMC Category Rating: Confirmed

Facts
This case related to a claim for the total loss of a consignment of goods that occurred on 30 April 1997 in a road accident on a mountainous stretch of road in Romania. The consignment was being carried from the UK to Romania, under a contract between the claimant cargo interests and the defendant carriers. The driver alleged that the brakes of his tractor unit failed during the descent. In consequence, the lorry and its load of cloth bales crashed through a steep bend and were lost over the side of the mountain. The driver leapt clear of the vehicle and was unhurt. The contract of carriage was subject to the Carriage of Goods by Road Act, 1965 and the issue in the case was whether the carrier was entitled to limit his liability under Art. 23.3 of the Convention to £90,000 approx. or whether "the damage was caused by his wilful misconduct", in which event, he would have been liable for the full value of the goods, in the amount of £270,000.

The claimants alleged that Harlequin had consciously and persistently failed to maintain the vehicle in accordance with proper practice, when they knew or must have known that, in consequence, the vehicle’s brakes might fail. In support, they relied upon the paucity of written evidence of regular safety inspections, plus the fact that Harlequin made manual adjustments to the automatic slack adjusters on the wheels of the vehicle, which control the gap between the brake shoes and the brake linings.

Judgment
After a detailed examination of the evidence, the judge held that, even if the cause of the accident were brake failure rather than driver error, the claimants had failed to discharge their burden of proof. Whilst he accepted that the documentary evidence relating to repair and maintenance produced by Harlequin was inadequate, he placed considerable reliance on the statutory regime that was in place in the UK to ensure regular and effective vehicle maintenance. There was evidence that the vehicle in question had undergone a number of surveys and inspections in the six months before the accident without adverse comment. Harlequin had a strong commercial motive to ensure that their fleet of vehicles (which were subject to random inspection in the UK) complied with the statutory requirements, plus a strong personal motive, given that the vehicle in question was driven from time to time by Harlequin’s two principals. Furthermore, the judge accepted that it was common practice, known to the Vehicle Inspectorate, for manual adjustments to be made to slack adjusters. Even if this were negligent, it could not be described as ‘misconduct’.

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