The Gazette 1985

GAZETTE

SEPTEMBER 1985

have a counter-claim for freight due in respect of the consignment. Article 23.4 does entitle the claimant to a complete refund of charges incurred in respect of the carriage of the goods in the case of total loss and to a pro rata refund in the case of partial loss but it frequently happens that where a dispute has arisen over the arrival of damaged goods and where freight has not yet been paid that it is withheld by the claimant. In such a case the carrier can properly counter-claim for the freight. Sometimes the carrier takes the initiative and brings a claim for freight which is then met by a counter-claim from the consignor or consignee on the grounds that the goods were damaged. It should be noted that in England the Courts have held that in such circumstances the owner of the goods is not entitled to claim a set-off on the basis of the counter-claim. In the case of R.H. &D. International Limited -v- I.A.S. Animal Air Services Limited [1984] 2 All E.R. 203 the Court held that the well established rule of Common Law, that a carrier's claim for freight is to be paid in full on delivery of the cargo and cannot be subject to any deduction or abatement by way of a set-off counter- claiming against the carrier in respect of the cargo, whether the counter-claim be for loss or damage to the cargo or for delay in delivery, is not confined to contracts ot carriage by sea but extends to claims for freight for the carriage of goods by road which are subject to the CMR Convention. If this decision were to be followed here it would seem that a carrier with a claim for freight brought on foot of a Summary Summons would be entitled to judgment before the Master of the High Court once he proved that he had earned the freight even though the consignor or consignee might state a counter-claim on Affidavit based on the fact that the goods arrived damaged and may be seeking a set-off. It would follow that the counter-claim be remitted for Plenary hearing if there was an issue of fact but that the carrier would be entitled to summary judgment in such circumstances for his freight. A carrier, joined as Defendant in proceedings on CMR case, will usually seek to avoid liability on the grounds that he can set up a Defence under Article 17.2 or Article 17.4 of the Convention. The driver of the vehicle carrying the load will usually be an essential witness and the surveyor retained on behalf of the carrier will also be required, unless he is in agreement with the Plaintiffs surveyor as to the cause of damage. The surveyor is also important from the Defendant's point of view in assisting the Court as to whether or not a reasonable salvage figure was arrived at or obtained and he can usually give first- hand information to the Court on the efforts (if any) taken by the consignee to mitigate its loss. In my experience this is an area in which considerable sums can be saved or lost by the respective parties to an action. While, therefore, the carrier's surveyor may agree as to the cause of the damage, his evidence may neverthe- less be required on the other issues just referred to. Considerable time and money can be wasted by carriers in contesting claims where consignments of meat have been stolen intransit. The theft of both vehicles and their cargo in certain Italian cities has reached epidemic proportions. It is not at all uncommon for a lorry driver to lock-up his lorry and to to a near-by café for a quick snack only to return and find his vehicle and contents gone. The

pondence between the parties should be available to establish that the claim was made within the relevant period. When the claimant has established the contract and that the consignment was received in good order and condition and was delivered damaged it is for the carrier to establish a Defence under Article 17.2or Article 17.4of the Convention as the onus of proof shifts to him. If he is unable to shift the burden of proof he is entitled to limit his liability in accordance with Article 23 of the Convention. Alternatively, he can plead that the action is time barred if the requirements of Article 23 have not been complied with by the claimant. Although a carrier named as Defendant in proceedings may have been the contracting carrier and not the actual carrier, he is still liable to the claimant for any loss of, or damage to, the goods. But where he is only one of a number of carriers or where he has sub-contracted the work out to another carrier he can spread his liability by third party proceedings through which he may either be indemnified or receive contribution towards the Plaintiffs award which has been made against him. It is open to the carrier, in certain circumstances, to counterclaim against the Plaintiff. Article 10 of the Convention makes the sender liable to the carrier for damage to persons, equipment or other goods and for any expenses due to defective packing of the goods, in? ss the defect was apparent or known to the carrier at the time when he took over the goods and he made no reservations concerning it. The carrier may also How public are your private conversations? The problem of private consultations being overheard by those in waiting areas is quite a c ommon one, particularly w h e n the area is close to the consulting room. Now there is an inexpensive electronic solution to this problem that is easy to install and requires no structural alterationl W i th S o u n dma s k i n g, conversations are kept private and confidential — a benefit for both lawyers and their clients.

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