Inapplicability of the limit of liability in cases of gross negligence of the carrier

ABSTRACT

The case law on “negligence equivalent to fraud” – or “gross negligence” as it is also called – of the road carrier is not clear and even contradictory, something prejudicial for the necessary legal (and economic) certainty. Where there is loss or damage to the goods or delay in delivery, this gross negligence makes the maximum sum of compensation (and other consequences) set out in the legislation inapplicable. Thus, this thesis aims to examine this type of negligence to determine if it is a third, intermediate type between negligence (carelessness) and fraud (intention) or if it belongs firmly in one of these two categories, this determination being decisive for how this type of conduct is handled in legal proceedings, especially regarding the burden of proof on the claimant. To this end, this paper examines the legislation, legal scholarship and the case law itself, including very recent decisions, especially from Spain, but also from 15 other European countries. International treaties on other modes of transport are also looked at.