International Carriage of Goods by Road: CMR
Defences Available to the Carrier
69. The defences
Apart from a defence in respect of what the carrier may have to do to dangerous goods,1 the carrier’s defences are stated in Article 17.2. The defences are the wrongful act or neglect of the claimant,2 the instructions of the claimant,3 inherent vice,4 and unavoidable circumstances.5 If the carrier establishes6 that the cause7 of the loss, damage or delay (LDD) lay wholly or in part in facts constituting one of these defences, the carrier is exonerated wholly or in part,8 as the case may be. Alternatively, the carrier may resort to a provisional defence by reference to the special risks9 stated in Article 17.4. The main difference with the defences in Article 17.2 is that, if the carrier establishes the operation of a special risk, it is presumed that that was the cause of the LDD and that the carrier is not liable; however, this double presumption may be rebutted by the claimant. As the onus of proof is easier for the carrier, in practice the carrier often tries first to make a defence under Article 17.4 and, if that fails, falls back on Article 17.2. This chapter is concerned with the defences stated in Article 17.2. The special risks are considered in Chapter 7.
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