Civil Liability in Case of Platooning by Road
Wouter Verheyen, ESL/ KULeuven/ Odisee UC
This paper investigates the civil liability aspects of road platooning with a focus on damage to cargo. The mandatory CMR liability rules impose a potentially great liability exposure to both the leader as the following trucks.
Platooning introduces a new type of road transportation, with new parties in the transport chain. The liability consequences of such relationships are yet uncertain. The problem with this is that parties have no unlimited party autonomy to model such consequences. In transport law, also private law legislation often provides for mandatory legislation. In road transport the CMR Convention as well as national transport laws provide such mandatory rules. As a result parties cannot deviate from the applicable rules through contractual intervention if such rules are applicable. In case of introduction of new technologies, such as platooning the problem arises that such applicability remains uncertain until a stare decision in case law can be found. To be more specific questions arise here in two distinctive relationships: that between the leader and the followers and that between an individual carrier and the cargo-interest
First of all the question arises whether the relationship between the leader and the following trucks in case of for reward platooning should be qualified as a contract for the carriage of goods by road by means of vehicles as required by article 1 CMR for the Convention to apply. This depends on the question whether propulsion or rather navigation is the essential feature of the concept of carriage. Given the possibility of evolutionary interpretation and especially taking into account the developments of unmanned transportation, here the focus might shift to navigation. If this is the case, the leader is presumed liable and his liability cannot be limited below 8,33 SDR/kilogram. This seems to make the role of leader of a platooning much less attractive. Through the rules of period of responsibility and exoneration grounds these harsh consequences could however be mitigated somewhat.
A second question lies with the impact of platooning in the relationship with the cargo interest. A first question is here whether, if damage arises in the course of platooning, by reason of the platooning, a force majeure defense could still be invoked or whether this is automatically disqualified by reason of the risk that was taken by the carrier by engaging in platooning. A second question is whether the leader qualifies as a servant or agent, making acts of the leader attributable to any individual carrier.
In the absence of case law, this paper investigates for ant question the alternative solutions and comes then with a proposal for a platooning-agreement which insofar as possible allows to neutralize the liability impact of platooning. The proposed liability rules are the result of a sector consultation with road carriers in 12 EU countries.
While the focus lies with road transport, the insights of this paper are equally relevant for platooning vessels.
Association for European Transport