Lloyd's Maritime and Commercial Law Quarterly
CMR—CONTINENTAL CASE LAW: LOSS BY THEFT FROM A COMPARATIVE VIEWPOINT
R. Wijffels, Dr. Juris
Attorney-at-Law, Editor of “European Transport Law”, Antwerp.
The following paper was presented by Maître Wijffels at the seminar on “The International Carriage of Goods—CMR—Insurance: Law: Practice” organised by Lloyd’s of London Press Ltd., at the London International Press Centre, on Sept. 24, 1976.
In the celebrated case of Coggs v. Bernard
1 in 1703 Chief Justice Holt, of the Court of King’s Bench, traced the history of the legal precedents and authorities relating to carriage and bailment and pointed out that the responsibility of “the person entrusted to carry goods” lies in the suspicion that the carrier might enter into collusion and do this:
“by combining with thieves and yet doing it in such a clandestine manner as would not be possible to discover.”
This was the ground upon which it was held that except for damage or loss resulting from
“acts of God, and of the enemies of the King”
the carrier is bound to answer for the goods
“at all events. For though the force be never so great as if an irresistible multitude of people should rob him, nevertheless he is chargeable.”2
Almost three centuries have elapsed since this decision was given by Chief Justice Holt, which has constituted a landmark in the development of the law relating to the carriage of goods.
Now in 1976 we have CMR, and we still have robbery and theft, with the difference that whereas in the good old times thieves were normally satisfied with a few packages abstracted from a parked vehicle, now they will only too often take the vehicle itself, together with the entire load.
In more and more places, especially in big cities, the increasing danger of large-scale theft ominously looms over the road freight haulage industry. Although there are no categories of goods which are totally free from the problems of theft, certain categories such as textiles, alcohol, cigarettes, etc., are, for obvious reasons, more attractive than others.
I. Let us imagine the carriage of clothing from London to Brescia, in Italy:
Instead of driving directly to the place of destination which is only 30 miles from the Italian border, the driver goes 110 miles out of his way to enjoy, after
1 (1703) 2 Ld. Ray. 909 K.B. (92 E.R. 107). See also: Jan Ramberg—”The law of carriage of goods attempts of Harmonization,” (1974) E.T.L. 3; Gorton—”The concepts of the Common Carrier in Anglo-American Law,” Gothenburg Maritime Law Association, 1971, pp. 43, 59.
2 26 Car. 2. In the case of Mars v. Slew, Raym. 220; I Vent. 190, 238.
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