A range of legislative and legal initiatives have been taken in recent days to control the spread of the SARS-CoV-2 coronavirus epidemic. How will temporary closing of borders and mandatory hospitalisation impact carriers’ liability in international transport of goods by road?
Legal solutions adopted
Faced with the SARS-CoV-2 coronavirus epidemic, the Polish government has decided to take drastic legal measures. One of the first legislative actions was to adopt the Special Coronavirus Act, under which, among other things, the Act on Preventing and Combatting Infections and Infectious Diseases in Humans of 5 December 2008 was amended. Under that change, persons diagnosed with or suspected of having an infectious illness may be subject to compulsory hospitalisation.
Moreover, pursuant to the Regulation of the Minister of Health of 13 March 2020 Declaring a State of Epidemiological Threat in the Republic of Poland, a state of epidemiological threat was introduced from 14 March 2020 until further notice. Consequently, any person crossing the state border is subject to mandatory quarantine (under §2(2)(2) of the regulation). But there are certain exceptions. From the perspective of international carriers, the most important is §2(5) of the regulation, which provides that the quarantine requirement does not cover persons crossing the Polish border as part of performance of professional activities in a neighbouring state—including drivers of vehicles in road transport.
Another important act impacting the transport industry is the Regulation of the Minister of Interior and Administration of 13 March 2020 on Temporary Suspension or Restriction of Border Traffic at Certain Border Crossings. Under §2(1) of that regulation, border controls of persons were restored temporarily through 24 March 2020, while §2(2) provides that the scope of controls will be tailored to the degree of threat to public order or state security in connection with the existence of a serious threat to public health caused by the SARS-CoV-2 coronavirus.
This state of affairs means that the border guards will carefully examine not only persons crossing the borders, but also goods transported into Poland, specifically in sanitary respects. Although mandatory quarantine does not cover professional drivers, it appears that the border guards may nonetheless, for example, check drivers’ body temperature in justified instances. Thus the situation cannot be ruled out where a professional driver is not subject to mandatory quarantine, but will have to be hospitalised under the procedure set forth in Art. 34(1) of the Infectious Diseases Act. It also cannot be ruled out that a driver will be subjected to compulsory hospitalisation after the carrier has accepted an order but before the vehicle is presented at the location for loading of the goods.
Prolonged sanitary inspections, unexpected and compulsory hospitalisation of drivers, and tailbacks at border crossings may cause late delivery of goods, including foods. Thus maintaining timely deliveries is important not only in terms of carriers’ civil liability, but also from a societal perspective (avoiding any panic due to shortages in deliveries to stores).
This raises the question of whether these circumstances can have an impact on carriers’ liability.
Rules for liability in international carriage of goods by road
Issues of liability in international carriage of goods by road are governed, among other things, by the Convention on the Contract for the International Carriage of Goods by Road of 19 May 1956 (known as CMR). The provisions of CMR establish a regime for damages separate, for example, from the general rules arising out of the Polish Civil Code. They place particular stress on the rule of the carrier’s presumed fault for purposes of civil liability (although in the literature, some commentators regard this as a form of strict liability, i.e. based on assumption of the risk). Based on these rules, the carrier bears the burden of proving the circumstances relieving the carrier of liability.
The grounds for relieving the carrier of liability in damages are set forth in Art. 17 (2) and (4) CMR and are divided into two groups: general and special. A combination of grounds might also exist in the given case.
Under the general rule, “The carrier shall be liable for the total or partial loss of the goods and for damage thereto occurring between the time when he takes over the goods and the time of delivery, as well as for any delay in delivery” (Art. 17(1) CMR). Nonetheless, the carrier is relieved of liability if the loss, damage or delay was caused (among other reasons) “through circumstances which the carrier could not avoid and the consequences of which he was unable to prevent” (Art. 17(2) CMR). This constitutes the general ground relieving the carrier of liability.
However, under the provision establishing one of the special grounds, the carrier is relieved of liability if the loss or damage arises from the “nature of certain kinds of goods which particularly exposes them to total or partial loss or to damage,” especially through “decay, desiccation, leakage, normal wastage” etc. But in the case of perishable goods (including foods), Art. 18(4) CMR, governing aspects of carriage requiring the goods to be maintained at controlled temperatures, should also be borne in mind. In carriage of goods of this type, the carrier can be relieved of liability only if it proves that all steps incumbent on it in the circumstances with respect to the choice, maintenance and use of equipment for maintaining the temperature were taken. The carrier must also show that it complied with any special instructions issued to it.
Under the current state of the law, professional drivers are not subject to mandatory quarantine when crossing the Polish border. Nonetheless, this does not exclude the possibility of their compulsory hospitalisation if they are suspected of carrying SARS-CoV-2 or other infectious illness.
If goods are not delivered on time due to hospitalisation of the driver, the time when the driver is sent to hospital will be crucial. If hospitalisation occurs after acceptance of the order, but before loading of the goods, the carrier should promptly designate another person to assume the duties of the original driver.
Undoubtedly the carrier will need to take all necessary measures to satisfy its obligation under the contract of carriage. Any failure by the carrier in this respect could have a negative impact on its liability in damages. The relevant clauses of the Civil Code (extraordinary change in circumstances, extraordinary renunciation of the contract, etc) may not apply due to the prohibition under Art. 41(1) CMR (“…any stipulation which would directly or indirectly derogate from the provisions of this Convention shall be null and void. The nullity of such a stipulation shall not involve the nullity of the other provisions of the contract.”)
However, if the driver’s hospitalisation occurs pursuant to a check of his body temperature at the border crossing, as a result of which the goods are not delivered by the agreed time, the carrier may rely on the exculpatory ground under Art. 17(2) CMR. It appears that in this state of affairs, failure to deliver the goods is due to circumstances that could not be avoided or prevented. Nonetheless, for this exclusion to be effective, carriers involved in international transport of goods must take care to designate drivers who do not display any manifestation of infection. Moreover, carriers should promptly take all possible efforts to designate substitute carriage or send a new driver.
In any event, it should be borne in mind that when transporting foods, for example, the carrier is required not only to comply with the numerous sanitary regulations but also to maintain the goods at the proper temperature throughout the period of transport. In this respect, any breach of obligations (e.g. as cited in Art. 18(4) CMR) may have a negative impact on the carrier’s future liability.
For this reason it is also recommended for carriers to have internal procedures and rules in force for the period of pandemic. These procedures should reduce the risk of unexpected hospitalisation of drivers and specify measures to be taken to secure the carrier’s interests if this occurs. Complying with such procedures could greatly increase the possibility of effectively asserting an exclusion of the carrier’s liability in a potential suit for damages.
Mateusz Kosiorowski, Insurance practice, Wardyński & Partners