National carrier responsibility
If no agreement has been made that creates a legal basis for the carrier’s liability, then the national carrier’s liability is not regulated by a single law, but by ordinary liability as described in the previous section. As well as by the Traffic Act’s provisions on liability in the Traffic Act. In practice, most transport companies will enter into an agreement with the customer that carrier’s liability must be regulated in accordance with the CMR Act, but more on this later. The parties to the freight agreement can therefore, as a starting point, agree on, among other things, the carrier’s responsibility for the goods.
As it is seldom appropriate, neither in economic nor in terms of time, to have to negotiate the terms of each individual national road transport carried out in Denmark, it is often agreed to apply the carrier’s standard conditions.
If the carrier is also a freight forwarder, the carrier will often stipulate that the national road transport, like the carrier’s other services as a freight forwarder, is carried out based on the Nordic Regulations (NSAB 2015).
If the carrier is a traditional hauler, another solution in practice is often that it is agreed that the transport, even if it is national, is carried out based on the CMR law. It is thus possible to agree on the application of the CMR Act also to transports that are not automatically subject to the law, if these transports are not subject to other mandatory legislation, such as the provisions of the Purchase Act on consumer purchases. Several major Danish haulers thus a pre-printed text in their consignment notes or order confirmations, which refers to the fact that all transports are carried out based of the CMR Act, regardless of whether the transports are carried out nationally or internationally.
In both cases above, the carrier will to a large extent have secured the opportunity to limit his liability to approx. 80 Danish kroner per kilo of damaged or lost goods.
To the extent that the parties have agreed that the transport is carried out based of, the example, NSAB 2015 or the carrier’s own transport conditions, the rules therein on the carrier’s liability for the goods, including the liability limitation rules, may deviate to the extent the specific goods damage is subject to traffic law.
Please be aware that an agreement on the transport of goods for a private customer is a consumer purchase, where there is no possibility of agreeing rules that are unfavorable to the customer in relation to other legislation.
The objective responsibility of the Traffic Act
Paragraph 101 of the Traffic Act is relevant to the carrier’s liability in connection with the performance of a national road transport of goods. However, the law stipulates that the goods damage must have occurred in a traffic accident or in an explosion or fire arising from the vehicle’s fuel system. If this condition is met, the person responsible for the vehicle (the carrier) will be objectively liable for the damage to the goods, regardless of whether the carrier is to blame for the traffic accident, explosion/fire or not. This means that the carrier will have to compensate the customer’s full loss due to the damage without the possibility of financially limiting his liability, but in return the liability will be covered by the carrier’s statutory motor liability insurance.
The provision is only rarely used in practice. On the one hand, the provision is only relevant in the event of a traffic accident. In part, it is only relevant in the event of damage or loss. And thus, not in the case of example delays of the goods. On the one hand, the provision only applies if the other conditions of the Traffic Act are met, including the requirements for the area of the Traffic Act. Most of the good’s damage will therefore fall outside the special provisions in the Traffic Act for goods damage caused by traffic accidents, etc.
According to paragraph 118, the provisions of the Traffic Act on carrier liability do not apply when the transport is carried out in accordance with the CMR rules.
If the carrier and his customer (the transport buyer) have not agreed on how the carrier’s liability for the goods is regulated, then the general rules on liability apply. As previously mentioned, one does not find the rules in the law. On the other hand, these unwritten rules are based on some basic legal principles in Danish law, which can be found in the Sale of Goods Act and the Limitation Act, as well as the general Danish tort law.
A carrier will be liable to the consignor or consignee for, for example, damage to the goods, unless the carrier can prove that he is not at fault for the damage in question. In contrast to ordinary Danish tort law, where the injured party must prove the perpetrator’s guilt, the case law means that the burden of proof in transport lies, as a rule, with the carrier. If the carrier cannot lift this burden of proof, then he will have to compensate the customer’s full losses, including consequential losses, such as production losses, lost profits, deprivation compensation, etc. Regardless of whether you are a carrier or transport buyer, it is therefore sensible for national, Danish Road transport to have thought about the rules that should apply to the transports – including the size and scope of the carrier’s responsibility for the goods.
CMR for national road transport
As one of the few Nordic countries, Denmark has chosen not to allow the CMR rules to also apply to national road transport, but as previously mentioned, the carrier and the transport buyer can have the national carrier liability regulated by the CMR Act, by the parties using the Contracts Act. To enter into an agreement on this.