Does article 23.4 of the CMR Convention implement the real limited recovery of the losses idea?

Abstract

In this paper, it is sought to answer the raised thesis if Article 23.4 of the CMR Convention implements the real limited recovery of the losses idea, depending on the growing popularity of international road cargo transportation and legal scholars’ indications that certain Articles of the CMR Convention, including 23.4, are problematic. In the first part of the work, the theoretical analysis of the full recovery of the losses principle is accomplished and its exemptions are provided. The liability can be limited by the contract, law, or decision of the court, usually, the carrier’s liability is limited by the legislature. The second part provides a theoretical and practical approach to the carrier’s liability, likewise, wording, and commentary of Article 23.4.  As a result, linguistical ambiguities that could not provide a clear understanding of the “charges incurred in respect of the carriage” were identified. Subsequently, a case law analysis of 7 countries was executed. The research has shown that 2 approaches – narrow and wide – are spread in jurisprudence. The third part answers the raised thesis of the paper, concluding that the idea of the carrier’s liability limitation is not executed. Hence, the idea of a carrier’s liability limitation is not realized as, theoretically or in practice, Article 23.4 is not understood uniformly, which constitutes a prerequisite for the emergence of “forum shopping” and the legal uncertainty of the carrier’s liability. Unstandardized interpretation of the carrier’s liability significantly affects commercial relations, as in certain countries the carrier shall bear more losses, which as well impacts the insurance prices.