What liability does a carrier face in the event of the illegal transport of immigrants?
Izabela Mrozek, Legal Counsel at Iuridica Law Firm: According to the provisions of the CMR Convention, the carrier is liable for the total or partial loss of the goods and for damage thereto, occurring between the time of taking over the goods and the time of delivery. Furthermore, the carrier is also liable for delay in delivery. Applying the principles of carrier liability to the situation where illegal immigrants gain access to a vehicle and cause damage to the transported goods, it should be pointed out that as a rule, the carrier will be held liable for damages caused by illegal immigrants.
A loophole allowing the carrier to avoid liability for damages caused by illegal immigrants is provided by the exoneration grounds specified in Article 17(2) of the CMR Convention. Among the circumstances relieving the carrier of liability are the fault of the claimant, an inherent vice of the goods, or circumstances which the carrier could not avoid and the consequences of which he was unable to prevent. The specificity of damage to goods caused by illegal immigrants usually boils down to an attempt to prove that the carrier could not avoid the illegal immigrants gaining access to the vehicle and could not prevent the consequences of their actions. However, whether the carrier will be able to effectively use arguments to avoid liability will depend on the factual circumstances of the specific case. It is essential that carriers performing transport to areas at risk of attempts by illegal immigrants to gain access ensure that vehicles are properly secured against third parties, instruct drivers on potential threats and the model of conduct in such situations, or plan transport routes taking into account the current situation in the countries along the route. In the event of damage, it is the carrier who will have to prove that they took all possible and available actions to avoid the damage and prevent its consequences. Only in such a situation can the carrier count on effective protection against liability.
More information on the implementation of the Border Force control procedure and the possibility of appealing against imposed penalties can be found here.
In addition to liability for transported goods and damages caused by illegal immigrants, the carrier often faces administrative liability. In the event of the discovery of illegal passengers on a vehicle, the carrier must expect the initiation of proceedings by the authorities and the necessity to provide explanations regarding a number of circumstances related to the transport, such as the course of the transport itself, verification by the driver of the vehicle for attempts by third parties to gain access, or the formal preparation of internal procedures preventing illegal immigration. Depending on the factual state of the specific case and the explanations provided, the authorities issue decisions on the basis of which they may impose fines of up to two thousand pounds per illegal immigrant (using the UK as an example). Importantly, fines are usually imposed on both the company carrying out the transport and the driver operating the vehicle transporting the goods along with the “stowaways”. These penalties are not final – carriers and drivers have the right to file appeals. As a result of such actions, one can expect decisions ranging from the cancellation of the penalty or a reduction in the amount of the imposed penalties to the maintenance of the penalties at the original level. From the carrier’s point of view, it is important that, according to British regulations, the carrier is jointly and severally liable with the driver for the penalty imposed on the driver. In short, this means that in the event of the driver’s failure to respond to the penalty decision, i.e., failure to file an appeal or failure to pay the imposed penalty, the British authorities will direct the demands for payment of the driver’s penalty directly to the carrier. The formal preparation of the company for transport operations through the application of appropriate internal procedures and the actual actions of the driver during the performance of transport have a significant impact on avoiding the carrier’s liability both in terms of liability under the CMR Convention and in terms of administrative liability.