Responsabilidad del transportista por robo de la mercancía

Responsabilidad transportista

ordered to pay all the damage carrier without application of the limits of liability, to mediate fraud in fulfilling its obligations

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The decision was adopted by Section 15 of the Provincial Court of Barcelona in judgment 187/2018, of 22 March.

Antecedentes

ANTONIO PUIG S.A. He concluded with Norbert Dentressangle Gerposa S.L.. transport toiletries from sender facilities in Barcelona to Belgium; the goods are loaded the 28 December 2015 NORBERT the truck and arrived at destination 30 December at 4:50 hours, closed meeting facilities recipient.

The driver of the truck parked in the street, in a place unattended and although he remained in the vehicle was the victim of theft of part of the goods. The situation of theft had already been presented in April 2014, so it was condemned at the time NORBERT.

Zurich Insurance PLC (Zurich) He had signed an insurance contract with ANTONIO PUIG S.A., under which he paid the value of the stolen goods and, He subrogating its secured position, NORBERT as claimed carrier to the load value, claiming that no limitation of liability could be applied upon the occurrence of gross negligence in its action.

NORBERT rejected the carrier's performance had been intentional so requested it applied the liability limit stated in Article 23.3 the Convenio CMR (concerning the International Carriage of Goods by Road Contract).

Primera Instancia

The Commercial Court of Barcelona nº7, in sentence 11 July 2017 fully he upheld the claim and ordered NORBERT understand that it acted with gross negligence, thus excluding force majeure and liability limits of art. 23 CMR Convention.

The decision was appealed by NORBERT by erroneous assessment of the evidence. He argued that even though the vehicle is not parked in closed and guarded place, the actions of the driver to prevent theft, the lack of parking areas near the destination and the absence of contrary instructions by the shipper, They prevented the appreciation of fraud.

Provincial Court

The Chamber focused on the study of the carrier's liability for loss of goods and noted that Article 17 CMR Convention says the carrier's liability for loss of goods produced between the time of loading and delivery, with the exception of the grounds for exclusion among which is the loss due to unavoidable circumstances.

The Convention establishes limits on compensation but this They are not applicable when the damage is generated fraud or failure is attributable to them and be equated to fraud by the legislation of place.

Fraud in the debtor's liability for breach of contractual obligations requires no mood to harm that has the intent in criminal matters, but it is sufficient to voluntary breach of legal duty, in the words of the Chamber on appointment of Supreme Court jurisprudence (SSTS 9 March 1962, 31 January 1968, 19 May 1973, 5 December 1995, 30 March 2005) “not appropriate to restrict the scope of the intent of malice or intent, so that, avoiding assimilation criminal fraud, it should be understood that not only includes damage with intent to injure or hurt, it is sufficient, in tune with the concept of bad faith, voluntarily violate a legal duty, namely, with the awareness that the observed behavior is performed an illegal act, He is doing what should not be done”.

Given this argument, the Chamber understood that the negligence of the carrier evidenced in various circumstances:

– Vehicle parking on street, uncontrolled entry and exit.

– Absence of security measures in the parking lot.

– History of theft in similar circumstances that led to the defendant issued instructions to subcontractors to park in private parking.

Conclusion

The Chamber concluded that "although the actual carrier had no intention of harming, knowingly failed to comply with an obligation to the insured of the plaintiff, parking the truck in the wrong place. This put at risk the load, enabling it to be stolen ".

Ultimately, He dismissed the appeal and upheld the decision of a quo NORBERT who sentenced to answer for all derivative theft without damage liability limit application of the CMR Convention.

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