Stef Transport Rennes & Anor v D & M Fraser (a firm)

Under the CMR Convention, a carrier is prima facie liable for physical deterioration occurring between taking over goods and delivery. The carrier bears the burden of proving an applicable exonerating cause. Where reliance is placed on the special risk arising from the nature of perishable goods, the carrier must also prove proper maintenance and use of the temperature-control equipment and compliance with special instructions. Where damage results from more than one cause, liability is apportioned to the extent of the carrier’s contribution. Sender stowage may constitute a special risk, but it does not necessarily exclude liability for a concurrent failure in refrigeration operation.

The claimants, successive road carriers within the CMR Convention, sought compensation from the defendant after a consignment of cheese was rejected on delivery and sold for salvage. The defendant relied on inherent vice and the special risk arising from the sender’s stowage of the load. The issues were whether the cheese had suffered damage during carriage, whether the damage was attributable to a cause relieving the defendant from liability, and the recoverable amount. The claim was determined at first instance after a three-day trial.

1. Damage in transit. The cheese was in a substandard condition on arrival, with abnormal smell, excessive temperatures and evidence of deterioration. It had undergone physical deterioration resulting in diminution of value between loading and delivery. The Article 9(2) presumption applied because the consignment note contained no specific reservation as to apparent condition. The notation allocating loading and stowage responsibility to the sender did not amount to such a reservation.
2. Available exonerations. The defendant could not rely directly on Article 17(4)(d). It had not proved that all steps incumbent on it concerning maintenance of the trailer had been taken, and it had not complied with the special instruction to operate the refrigeration unit continuously. The expired ATP certificate supported that conclusion. The defendant also could not rely indirectly on that provision through the claimants’ relationship with the sender.
3. Cause of damage. Inherent vice concerns an inherent defect peculiar to the goods; the special risk arising from the nature of goods concerns a quality shared by goods of the same nature. The evidence did not establish inherent vice. The damage was caused by the sender’s stowage and the defendant’s use of Start/Stop refrigeration mode. Start/Stop operation was not generally unsuitable for cheese, but its effectiveness was compromised by interrupted air circulation. Continuous operation would have mitigated the consequences of poor circulation.
4. Apportionment. The two causal factors contributed equally. The defendant was liable for one half of the proved damage. The other half was attributable to the special risk inherent in stowage under Articles 17(4)(c) and 18(2).
5. The hearing on the appropriate order was adjourned part-heard because the parties had not agreed its terms.

First-instance decision. No earlier judgment or appeal is stated in the judgment.