NEWSLETTER-2017

63 COMMERCIAL LAW Limitation of Liability Unless the value of the goods has been declared by the shipper and has been included in the bill of lading, the liability of the carrier for the loss of or damage to the goods, or delay in delivery is limited to 666,67 units of account (SDR) per package or unit or 2 SDR per kilo of gross weight of the goods, whichever is higher. When the goods are consolidated in a container, pallet or another shipping units, the pack- ages enumerated in the bill of lading are deemed packages/shipping units. Otherwise, the goods in a container or such shipping units are deemed to be one package/ shipping unit. If the value has been declared and included in the bill of lading, then the carrier shall not be entitled to invoke limitation and is obliged to compensate the declared value. On the other hand, as per Article 1186/8 of the TCC, the limits both for the loss, damage or delay of delivery stipulated, above, can be increased by an agreement between the parties in the freight contract. In such a case, the value agreed upon by the parties will be deemed as the liability limit. The liability of the carrier for delay in delivery is limited to an amount equivalent to two and one-half times the freight payable for the goods delayed; however, this amount cannot exceed the total freight payable under the contract of the carrier. If the goods are damaged or are deemed to be a total loss due to the delay in delivery, the limitation amounts adopted for the loss of or damage to the goods applies to the liability of the carrier. Loss of the Benefit of Limitation of Liability Wilful misconduct and gross negligence of the carrier causes the loss of the right to limit liability. According to Article 1187/1 of the TCC, the carrier is not entitled to invoke limitation of liability, provided that the loss, damage or the delay in delivery resulted from an act or omission of the carrier made with intent to cause such loss, damage or delay in delivery, or recklessly and with the knowledge that such loss, damage or delay in delivery would most likely result. The same principle applies to the carrier’s servant and agents, as well.