This note provides a high level comparison prepared with input from lawyers across our European offices, illustrating how differently the same concept is treated across jurisdictions.
Italy
In a recent ruling, the Court of Parma addressed the issues of jurisdiction, competence and gross negligence on the part of the carrier in the context of international carriage of goods, governed by the CMR Convention (Convention on the Contract for the International Carriage of Goods by Road (CMR) 1956).
The case arose from the theft of a significant consignment of goods destined for the French market, allegedly stolen by the sub-carrier to whom the contractual carrier had entrusted the transport from Italy to France. The goods never reached their destination.
Regarding jurisdiction, the Court rejected the French carrier’s objection, thereby confirming Italian jurisdiction. Referring to Article 31 of the CMR, the Court emphasised that the plaintiff is free to bring proceedings before the court of the country where the goods were received, regardless of whether there is an agreement between the parties on jurisdiction.
On the issue of competence, the Court also rejected the carrier's objection, stating that the forum provided for in the conditions of sale does not affect the contract of carriage.
Finally, the Court addressed the issue of gross negligence. Referring to Articles 17 and 29 of the CMR, it was reiterated that the carrier is liable for loss or damage to goods caused by wilful misconduct or gross negligence on the part of the carrier, its employees or its agents. The Court, therefore, on the assumption of wilful misconduct on the part of the sub-carrier, ordered the contractual carrier to pay compensation ad valorem for the damage resulting from the loss of the goods suffered by the customer and, on its behalf, its insurance company, stating that, in accordance with Articles 29(1) and (2) of the CMR and 1696(3) of the Civil Code, there is no doubt that the carrier is liable for the loss of the goods and that it cannot avail itself of the limitations provided for in the Convention and the Civil Code.
In light of the recent decision in Italy, our experts provide a comparative view across various jurisdictions.
United Kingdom
At English law, there is no standalone concept of ‘gross negligence’ distinct from simple negligence. Where a claimant is therefore seeking to break the limits of liability contained within the CMR, the claimant must establish wilful misconduct under Article 29 of the CMR.
It is well established that the threshold for establishing wilful misconduct at English law is very high. There is a wealth of case law which deals with the test for wilful misconduct, and we have summarised a number of key decisions below.
In Denfleet International Ltd v TNT Global SpA [2007] 2 Lloyd's Rep 504 the driver of a lorry carrying the claimant’s goods was involved in an accident near Milan as a result of the driver falling asleep at the wheel. The Court of Appeal held that in order for the claimant to prove wilful misconduct on the part of the carrier, it must be established that:
- There must have been misconduct.
- The carrier, employee or agent either:
- must have committed the misconduct deliberately, knowing that the conduct was wrongful, regardless of the consequences; or
- must have committed the misconduct deliberately with reckless indifference as to whether what he or she was doing was right or wrong, where such misconduct was unreasonable in all the circumstances
- There must have been an increased real and substantial risk of damage to the goods resulting from such misconduct and the carrier, employee or agent must have been aware of that additional risk.
Similarly, in Laceys (Wholesale) Footwear Ltd v Bowler International Freight Ltd, [1997] 2 Lloyd's Rep. 369. the claimant was a wholesaler of shoes based in Hackney, London who regularly received imported shoes from Spain. The defendant carrier’s driver was expressly instructed to deliver the goods only to the claimant’s location in London. The driver, who could not speak English but had received the express instructions in his native language, went to the street where the premises were but was met by two men who told him that the vehicle was too big for the delivery door. He was instructed to drive somewhere else and transfer the goods to another vehicle which would fit in the delivery door. He followed these instructions and let the men transfer the goods to an unmarked vehicle and handed them the transport documents. The court held that where the driver had ignored the express instructions clearly communicated to him, coupled with the lack of effort to identify the men to whom delivery was made, this was sufficient to establish wilful misconduct. Beldam LJ described wilful misconduct this way:
“Further a person could be said to act with reckless carelessness towards goods in his care if, aware of the risk that they may be lost or damaged, he nevertheless deliberately goes ahead and takes the risk, when it is unreasonable in all the circumstances for him to do so”.
As such the case law establishes the rule that, in order to prove that the carrier’s actions amounted to wilful misconduct there must be misconduct, which means establishing that the acts or omissions of the carrier were so far outside the range of conduct ordinarily expected by a carrier and crucially, it must be proved that the carrier appreciated the risk and still took that risk, knowing that it would endanger the goods entrusted to it.
The mental element of this high threshold is what makes it incredibly difficult for the party alleging wilful misconduct as it requires evidence of the mental state of the carrier in order to be successful.
Germany
The liability escalation pursuant to § 435 HGB (German Commercial Code) applies when the carrier or its servants act intentionally or with recklessness (Leichtfertigkeit) while being aware that damage is likely to occur. This is similar to Art. 29 CMR. The provision requires qualified fault, exceeding ordinary gross negligence. According to the Federal Court of Justice (BGH), recklessness requires a particularly serious breach of duty amounting to a fundamental disregard of obvious risks and approaching intent in its severity. In addition, the actor must have recognised the likelihood of damage resulting from his conduct.
The BGH imposes strict evidentiary standards. In principle, the claimant bears the burden of proving intentional or reckless conduct. However, because the relevant events occur within the carrier’s sphere of control, the carrier is subject to a secondary burden of explanation. Once the claimant asserts that the damage occurred during the carrier’s custody and that qualified fault is plausible, the carrier must present a detailed, coherent and comprehensive account of the transport process, organisational measures, security precautions, employee supervision and potential alternative causes. If the carrier fails to provide such substantiated explanations, the court may infer qualified fault- and does in practice!
In loss cases, the BGH applies stricter criteria than in cases of damage. If goods “disappear” without any trace and the carrier cannot document the last interface check or adequate preventive measures, courts often consider this to indicate a grave organisational deficiency. Unexplained losses typically point to recklessness.
In damage cases, the claimant must initially present more concrete indications of qualified fault. Mere lack of documentation is insufficient. Only when specific circumstances suggest a severe breach—such as grossly inadequate securing, disregard of essential instructions or complete lack of supervision—does the secondary burden of explanation shift to the carrier.
Where qualified fault is established, the liability limitations under §§ 429 ff. HGB do not apply. The carrier then faces unlimited liability. In comparison to other European jurisdictions, breaking limitation of liability seems rather easy in Germany.
France
In a ruling dated 22 October 2025 (No 24-16.015), the French Supreme Court (the Cour de Cassation) has reaffirmed the strength of the limits of liability of road carriers.
In the case at hand, a retailer of mobile phones and electronic products entrusted a carrier with the shipment of a first load. Three days later, while still in the carrier’s parking structure, the load was stolen in a break-in.
A few days later, the retailer, unaware of the first theft, entrusted the carrier with the shipment of a second similar load. This second load was also stolen from the same parking structure, whose gates had not been repaired since the first break-in.
The merchant requested that the carrier’s limitations of liability be lifted for the second shipment.
Since Law No. 2009-1503 of 8 December 2009, the inexcusable misconduct (defined in Article L.133-8 of the Commercial Code) is the only standard of misconduct that can override the limits of liability pursuant to Article 29 of the CMR. It has been established as a very high standard, higher than the previous applicable standard of gross negligence.
An inexcusable misconduct is determined on a case-by-case basis but the Cour de cassation ensures that appellate judges have clearly identified the four cumulative criteria required:
“An inexcusable misconduct is a deliberate fault [1] which implies awareness of the likelihood of damage [2] and reckless acceptance of it [3] without a valid reason [4]. Any clause to the contrary is deemed null and void.”
In this case, the Court of Appeal had characterised the carrier’s inexcusable misconduct: it had held that
- the carrier committed deliberate fault by transporting goods
- whose value it was aware of,
- to a site that had been burgled the previous week,
- without having repaired the broken gates or taken effective protective measures,
- and that it had not notified the shipper of the first theft as soon as it was discovered, preventing it from choosing another transport solution until corrective measures could be taken.
The Court of Appeal concluded that, having necessarily been aware of the likelihood of another theft in such circumstances, the carrier had recklessly and without valid reason accepted this risk by failing to take additional precautions.
The Cour de cassation overturned this ruling and found that these grounds were insufficient to characterise an inexcusable misconduct on the carrier’s part, as “it could not result solely from a series of serious negligent acts”.
Belgium
Under Belgian law there is no exhaustive statutory definition of gross negligence (zware fout / faute lourde). The concept is shaped primarily through jurisprudence. Gross negligence is traditionally considered as conduct that, while not intentional, displays a serious and inexcusable disregard for a duty of care, going far beyond ordinary negligence.
The assessment is contextual and fact‑specific, taking into account the nature of the obligation, the foreseeable risks, the professional capacity of the party involved and surrounding circumstances.
Unless a specific law provides otherwise, parties may agree on a clause that wholly or partially releases the debtor from his contractual or non‑contractual liability, including for gross negligence (Art. 5.89 Civil Code).
For contrast, wilful misconduct (opzet / faute intentionelle) implies the intentional breach of a contractual duty. Evidently, clauses exonerating the debtor for his wilful misconduct are null and void.
Road Transport
Initially, in the context of road transport, gross negligence was occasionally interpreted as an equivalent to wilful misconduct (opzet / dol) in the sense of Art. 29 CMR. Consequently, the limitation of liability could be breached when the even in the absence of the intent to breach a duty and cause damage.
Following a landmark ruling by the Belgian Supreme Court (Hof van Cassatie / Cour de Cassation) of 27 January 1995 (C.94.0105.N), it was held that the Belgian courts need to apply wilful misconduct (and not gross negligence) as the former is a known legal concept in Belgium. By preventing courts to seek an equivalent of wilful misconduct, gross negligence will not suffice in order to breach the limitations as prescribed by Art. 29 CMR.
Carriers benefit from the Belgian stricter interpretation then some of its surrounding countries in respect of stolen or damaged cargo, compared to some of its neighbouring countries. It should however be noted that in Belgium CMR not only applies to international, but also to domestic transport.
Insurance
Finally, it should be noted that, in principle, insurers must cover losses caused by negligence, including gross negligence. The Supreme Court has consistently held and confirmed that generally worded exclusions referring to “gross negligence” are invalid (e.g. Cass. 10 March 2025). In order to carve out gross negligence from cover, the policy must explicitly and limitatively exclude specific, concrete and well‑defined conduct (Art. 62, para. 2 Belgian Insurance Law of 2014).
