In the day-to-day practice of the transport, shipping and logistics (TSL) industry, the term “force majeure” is sometimes treated as a universal defence against claims for damages. Responses to complaints concerning delays, cargo damage or theft frequently refer to adverse weather conditions, sudden traffic congestion, vehicle breakdowns or complicated roadside inspections.

From the perspective of transport law, however, this approach is a serious mistake and carries significant legal risks. The mere occurrence of an external event beyond the carrier’s direct control does not automatically exempt the carrier from civil liability.

Transport Law vs. the CMR Convention: What Are the Key Differences?

When analysing liability for cargo loss or damage, or for delays, the first step is to determine precisely which legal regime applies to the transport in question. The grounds for exemption from liability differ under domestic and international transport law.

The rules governing exemption from liability depend on the applicable legal regime:

• Transport Law (domestic transport): Under Article 65(2) of the Polish Transport Law Act of 15 November 1984, the legislator expressly refers to “force majeure”, alongside causes attributable to the sender or recipient and the inherent characteristics of the goods themselves.
• CMR Convention (international transport): The Convention on the Contract for the International Carriage of Goods by Road (CMR), dated 19 May 1956, does not use the term “force majeure”. Instead, Article 17(2) of the CMR provides for exemption from liability where the loss, damage or delay results from “circumstances which the carrier could not avoid and the consequences of which it was unable to prevent”.

Although, in practice, judicial decisions under both regimes focus on whether the carrier exercised the highest degree of professional diligence, the CMR places even greater emphasis on the objective impossibility of avoiding the event itself and its consequences.

Who Is Liable for Loss or Damage? Assessing the Event and the Burden of Proof

Exemption from liability does not arise automatically when an external event occurs. Each situation requires a comprehensive assessment of the entire chain of causation: from the nature of the event and whether it could have been anticipated, to the actual possibility of avoiding it or minimising its consequences.

In this context, the carrier’s status as a professional operator is of key importance. A transport company is expected to plan each journey with due regard to typical and foreseeable road risks. If heavy rainfall or winter road conditions fall within the normal expectations for the season and available weather forecasts, it is difficult to regard them as unavoidable events. The carrier should take such factors into account when determining departure times and selecting routes.

It is also important to remember the fundamental procedural principle arising from Article 65(2) of the Polish Transport Law Act of 15 November 1984 and Article 18(1) of the CMR Convention.

The burden of proving the circumstances justifying exemption from liability rests entirely with the carrier. The carrier must demonstrate that it exercised all due diligence and that, despite doing so, the loss or damage was absolutely unavoidable.

The Carrier’s Business Risk and Extraordinary Events

Operating a transport company necessarily involves bearing what is known as ordinary business risk. The carrier is responsible for the efficient organisation of its business and the technical condition of its fleet.

This principle is reflected in Article 17(3) of the Convention on the Contract for the International Carriage of Goods by Road (CMR), signed in Geneva on 19 May 1956, which expressly excludes the possibility of a carrier relying on defects or faults in the vehicle to obtain exemption from liability.

A brake system failure, a damaged radiator or a burst tyre—even if it occurs suddenly during a journey—falls within the operational risks associated with the use of equipment. Similarly, organisational errors, the lack of an available replacement driver or an inappropriate choice of route constitute internal operational problems for the transport company.

An event capable of genuinely releasing a carrier from liability must generally constitute a catastrophic, sudden and insurmountable obstacle, such as an unexpected natural disaster, flooding, the collapse of a bridge, an unforeseen border closure or civil unrest. In every case, however, the crucial question remains whether the carrier could have taken alternative measures after the event occurred, such as arranging a diversion.

Drivers’ Hours and Civil Liability for Cargo

In dispatching operations, administrative regulations are often incorrectly equated with civil liability. A good example is Article 12 of Regulation (EC) No 561/2006 of the European Parliament and of the Council of 15 March 2006, which harmonises certain social legislation relating to road transport, amends Regulations (EEC) No 3821/85 and (EC) No 2135/98, and repeals Regulation (EEC) No 3820/85. Article 12 allows a driver to depart from the prescribed driving-time rules in order to reach a suitable stopping place where this is necessary to ensure the safety of persons, the vehicle or its load.

Using this procedure protects the driver and carrier against administrative penalties imposed by the Road Transport Inspection. However, it does not automatically release the carrier from liability for damages claimed by the sender due to delayed delivery.

The assessment of whether a departure from drivers’ hours rules is justified under social legislation is separate from the assessment of whether the contract of carriage has been properly performed under the Polish Transport Law Act of 15 November 1984 or the Convention on the Contract for the International Carriage of Goods by Road (CMR), signed in Geneva on 19 May 1956.

How to Properly Document Force Majeure and Extraordinary Circumstances

Invoking extraordinary circumstances requires appropriate supporting evidence. Where Article 12 of Regulation (EC) No 561/2006 of the European Parliament and of the Council of 15 March 2006 is relied upon, the driver must make a handwritten record explaining the circumstances on the reverse of the tachograph record sheet or on a printout from the digital tachograph. This must be done no later than upon arrival at the suitable stopping place, in accordance with Regulation (EU) No 165/2014 of the European Parliament and of the Council of 4 February 2014 on tachographs in road transport.

In the context of a potential civil dispute, a tachograph printout alone constitutes only part of the evidence. To successfully defend against a claim for damages, the carrier should gather external documentation confirming the circumstances and course of the event, in particular:

• Official announcements from road authorities and weather reports.
• Certificates, statements or reports issued by the police or fire service.
• Telematics and GPS data showing the route taken and any periods of stoppage.

Force Majeure Clauses in Transport Contracts: How to Protect Business Interests in TSL

The standard provisions of the Polish Transport Law Act and the CMR Convention establish the framework for liability. However, within the limits of contractual freedom, the parties to a contract of carriage or transport order may clarify the procedures to be followed when extraordinary events occur. Including a carefully drafted force majeure clause in a contract can help prevent interpretative disputes.

A precisely drafted force majeure clause should, in particular, include:

• A detailed list of events: An exhaustive or non-exhaustive list of circumstances recognised as force majeure, such as natural disasters, prolonged border blockades, general strikes, acts of war or sudden and severe weather conditions.
• Notification procedures and deadlines: A clear requirement to notify the other party promptly, for example within 12–24 hours, of any obstacle encountered, in writing or in another form that provides a record of the notification.
• An obligation to mitigate losses: Specific steps the carrier must take to limit the adverse consequences of the event, such as changing the route or ensuring appropriate protective conditions for the cargo.
• Consequences of non-compliance: An express provision stating that failure to provide timely notification or to take reasonable steps to mitigate the loss may deprive the carrier of the right to rely on the force majeure clause.

Conclusion: Carrier Liability in Practice

Invoking force majeure or unavoidable circumstances does not provide a universal shield against liability for loss, damage or delayed delivery. The key is to distinguish precisely between the domestic regime under the Polish Transport Law Act and the international regime under the CMR Convention, and to assess the event against the heightened standard of professional diligence expected of a carrier. The burden of proving that all reasonable measures were taken and that the loss or damage was nevertheless absolutely unavoidable always rests with the carrier.

Ordinary business risks, equipment failures and organisational problems generally preclude exemption from liability. Furthermore, permitted departures from drivers’ hours rules may protect against administrative penalties but do not automatically eliminate civil liability. To protect business interests effectively in the TSL sector, transport companies should maintain meticulous records of evidence and incorporate carefully considered force majeure clauses into their transport contracts.

Article by Trans Lawyers

www.translawyers.eu