Micro Anvika Ltd & Ors v TNT Express Worldwide (Euro Hub) NV & Ors

Under Article 29 of the CMR, loss caused by wilful misconduct removes the carrier’s liability limitation. Wilful misconduct requires misconduct going substantially beyond negligence, including deliberate and unreasonable risk-taking with awareness that the goods may be lost or damaged. The carrier must also have caused the loss. A driver deceived by a sophisticated delivery scam does not commit wilful misconduct merely by following an apparently legitimate change of unloading arrangements, particularly where no clear delivery instruction was disobeyed and no relevant warning or training was provided.

The claimants, retailers of electronic equipment, claimed the difference between the Convention liability limit and the substantially higher value of goods stolen during carriage from Belgium to London. The goods were carried under the CMR by TNT and Ninatrans. The parties accepted liability up to the limit in Article 23. The central issue was whether the driver’s conduct amounted to wilful misconduct under Article 29, so that the limitation was unavailable.

The driver was deceived by persons posing as representatives of the consignee and drove the lorry to another location, where the goods were stolen.

1. Applicable test. Article 29 requires proof that the carrier’s loss was caused by wilful misconduct or an equivalent default. The court adopted the established approach: identify the conduct ordinarily expected in the circumstances; determine whether the conduct was sufficiently outside that range to amount to misconduct; determine whether it was wilful; and establish causation.
2. Wilful misconduct is far beyond negligence, including gross or culpable negligence. It requires knowledge and appreciation that the conduct is wrongful, followed by intentional conduct, persistence regardless of consequences, or reckless carelessness. Reckless carelessness requires awareness of a risk that the goods may be lost or damaged and an unreasonable decision deliberately to take that risk.
3. The claimants accepted that they had to prove misconduct, awareness of a risk that the cargo might be stolen, deliberate and unreasonable acceptance of that risk, and causation.
4. Application. The driver honestly believed that he was dealing with the consignee’s personnel. The lorry was difficult to unload at the warehouse, the driver had received no training about round-the-corner thefts, and he had not disobeyed any employer’s written instruction. No clear instruction required delivery only to the stated premises. The driver was deceived by a sophisticated operation and was not shown to have knowingly or recklessly accepted a theft risk.
5. The decision in Laceys Footwear (Wholesale) Ltd v Bowler International Freight Ltd was materially distinguishable because that driver had received and understood clear instructions not to unload anywhere other than the named premises and had disobeyed them.
6. The claimants therefore failed to establish misconduct, and the court considered that they had not established negligence either. The claim was dismissed.