What is meant by ‘wilful Misconduct’?

Article 29 of the CMR Convention states:

The carrier shall not be entitled to avail himself of the provisions of this chapter which exclude or limit his liability or which shift the burden of proof if the damage was caused by his wilful misconduct or by such default on his part as, in accordance with the law of the court or tribunal seised of the case, is considered as equivalent to wilful misconduct.

The same provision shall apply if the wilful misconduct or default is committed by the agents or servants of the carrier or by any other persons of whose services he makes use for the performance of the carriage, when such agents, servants or other persons are acting within the scope of their employment. Furthermore, in such a case such agents, servants or other persons shall not be entitled to avail themselves, with regard to their personal liability, of the provisions of, this chapter referred to in paragraph one.

In the case Laceys Footwear-v-Bowler International (1997) it was said:

"Whether in any given set of circumstances the acts or omissions of a person entrusted with the goods or property of another amount to wilful misconduct must begin with an enquiry about the conduct ordinarily to be expected in the particular circumstances and by then asking whether the act or omissions of the person whose behavior is called in question is so far outside the range of such conduct that it can properly be regarded as 'misconduct'.

An important circumstance in any case would be a deliberate disregard of express instructions clearly given and understood. Further, a person could be said to act with reckless carelessness towards goods in his care if, aware of a risk that they might be lost or damaged, he nevertheless deliberately goes ahead and takes the risk when it is unreasonable in all the circumstances for him to do so".

The concept of wilful misconduct was considered again in Alena-v-Harlequin Transport Services (2002). The brakes on a vehicle carrying goods failed when negotiating a hairpin bend at a notorious accident black spot: Fortunately, the driver jumped from the vehicle as it plunged down a mountainside. The claimant looked for a finding of wilful misconduct based on a failure of proper maintenance of the braking system resulting in its failure. However, the defendant was able to produce maintenance records of the vehicle for a number of years prior to the accident.

The judge found that wilful misconduct could not be attributed to the carrier.

The case demonstrates the importance of good record keeping and the need to retain records, whether these are in relation to vehicle maintenance or the communication between goods owners, carriers and sub-contractors.

There has been a significant increase in allegations of 'wilful misconduct' as goods owners look to overcome the monetary limitation of the CMR convention.

The monetary limit has remained at 8.33 SDRs per kilo since the introduction of CMR, despite significant increases in the value of goods and a general trend for many goods to be smaller and lighter as new materials and electronic components are used in their construction