Historically, this is not so in the case of common carriers, who may be defined as those who declare themselves ready to accept for carriage goods of a general nature and over general routes. Such carriers are bound to accept goods of a usual nature provided that they have space and vehicles suitable and are not less common carriers because they operate only along restricted routes. Such carriers are bound statutorily to accept liability as previously indicated and will be liable for the criminal acts of their servants or of sub-contractors to whom they deliver the goods for on-carriage. In the case of certain more valuable types of cargo, the value must be declared at the time the goods are delivered to the carrier. Without this declaration, the carrier may avoid liability:
Subject to these Conditions the Carrier shall be liable for any loss or misdelivery of or damage to goods occasioned during transit unless the same has arisen from, and the Carrier has used reasonable care to minimize the effects of,
(a) act of God;
(b) any consequences of war, invasion, act of foreign enemy, hostilities (whether war or not), civil war, rebellion, Insurrection, military or usurped power or confiscation, requisition, or destruction of or damage to property by or under the order of any government or public or local authority;
(c) seizure or forfeiture under legal process;
(d) error, act, omission, mis-statement or misrepresentation by the customer or other owner of the goods or by servants or agents of either of them;
(e) inherent liability to wastage in bulk or weight, latent defect or inherent defect, vice or natural deterioration of goods;
(f) insufficient or improper packing;
(g) insufficient or improper labelling or addressing;
(h) riots, civil commotion, strike, lockout, general or partial stoppage or restraint of labour from whatever cause;
(I) consignee not taking or accepting delivery within a reasonable time after the Consignment has been tendered.
The Carrier shall not in any circumstances be liable in respect of a Consignment where there has been fraud on the part of the customer or the owner of the goods or the servants or agents of either in respect of that Consignment, unless the fraud has been contributed by the complicity of the Carrier or of any servant of the Carrier acting in the course of his employment.
Time limits for prosecution on claims are designated as follows:
The carrier shall not be liable for:
1. loss from a parcel, package or container or from an unpacked Consignment or for damage to a Consignment; unless he is advised thereof in writing otherwise than upon a consignment note or delivery document within three days, and the claim is made in writing within seven days, after the termination of transit;
2. loss, misdelivery or non-delivery of the whole of a Consignment or of any separate parcel, package or container forming part of a Consignment unless he is advised of the loss, misdelivery or non-delivery in writing otherwise than upon a consignment note or delivery document within twenty eight days, and the claim is made in writing within forty-two days, after the commencement of transit.
However, if the customer who contracts for the services of the Carrier proves that: a) it was not reasonably possible for him to advise the Carrier or make a claim in writing within the time limit applicable and b) such advice or claim was given or made within a reasonable time; the Carrier shall not have the benefit of the exclusion of liability afforded by this Condition.
Therefore, a study of the contract of carriage is essential to determine the extent of the cargo owner’s rights.
The Convention concerning the contract for the International Carriage of Goods by Road, known as the CMR, was signed at Geneva on 19 May 1956. It was open to signature or accession by countries belonging to the Economic Commission for Europe and those countries admitted to the Commission in a consultative capacity. The Convention entered into force on the ninetieth day after the fifth signature had been obtained and this occurred on 2 July 1961 when five instruments of ratification had been received. At that date, the Convention covered rules for transport between Austria, the Netherlands, Italy, Yugoslavia and France.
The abbreviation CMR arises from the French title which describes the Convention and which in translation refers to the carriage of’ goods (merchandises) by road (route).
The provisions of the Convention have force of law in the UK by the operation – of the Carriage of Goods by Road Act 1965 which has CMR conditions scheduled to it. This Act came into operation on 5 June 1967 by an Order in Council dated 24 May 1967. The UK accordingly acceded to the Convention under the terms of Article 43 and on 19 October 1967 the Convention came into force in the UK.
When studying the Carriage of Goods by Road Act 1965, one must understand that the sections of the Act deal with general application of the Convention, whereas the Convention given in the schedule to the Act sets out the rights and liabilities of the parties under a contract to which the Act applies. It is recommended that the Carriage of Goods by Road Act 1965, given in appendix 1 at the end of this chapter, should be read in conjunction with the following notes.
SCOPE OF APPLICATION
Consistent with the procedure followed by the various international conventions on transport law, the CMR substitutes its own provisions and solutions for those of whichever national law the judge, hearing an action, shall deem to be applicable according to his view of the conflict between the legal systems.
Article 1 of the Convention defines the scope of application as follows:
This Convention shall apply to every contract for the carriage of goods by road in vehicles for reward, when the place of taking over of the goods and the place designated for delivery, as specified in the contract, are situated in two different countries, of which at least one is a contracting country, irrespective of the place of residence and the nationality of the parties.
Thus, the following conditions must be met for CMR to be applicable:
► there must be a contract of carriage for reward;
► the contract so made must be one for the carriage of goods;
► the carriage must be effected by road;
► the carriage is to be carried out by certain categories of vehicles;
► the contract must have international status.
Contract of carriage for reward
For the CMR to apply, a contract must be concluded with reciprocal obligations and this contract must be for reward.
Contract so made must be one for the carriage of goods
The CMR makes no exceptions with regard to the nature of the goods and the way they are to be transported. It does not exclude from its provisions bulk consignments nor does it draw any distinction between goods in packages or in containers. However, the Convention does exclude goods dispatched under the rules of the international postal conventions, funeral consignments and furniture removals: Article 1, para.4.
Carriage must be effected by road
This provision clearly states the very aim of the Convention, i.e., the carriage of goods by road. Article 2, which is an article primarily concerned with liability, attempts to cover the position with regard to combined transport.
Article 2 is of particular importance for consignments dispatched to or from the UK.
It should be observed that the Convention continues to apply provided that the goods are not unloaded from the vehicle when it continues its journey by sea or some other means of transport. If it can be proved, however, that any loss arising during this secondary means of transport was riot caused by the negligence of the road carrier, the liability of the latter shall be determined by the legislation affecting this secondary means of transport.
It will be appreciated that goods dispatched from the UK will have to remain on the vehicle, i.e., roll-on/roll-off, for CMR to continue to apply to the whole of the transit period.
A container unloaded first from the lorry and then hoisted on board a vessel is no longer covered by CMR: Article 2 is clear on this point. Exception is made only in the case of unforeseen accidents covered by Article 14.
Carriage is to be carried out by certain categories of vehicles
Article 1, sub-section 2, defines vehicles as meaning motor vehicles, articulated vehicles, trailers and semi-trailers as defined in Article 4 of the Convention on Road Traffic dated 19 September 1949 which states:
The definitions set out in this Article are, so far as material, as follows:
‘Motor vehicle’ means any self-propelled vehicle normally used for the transport of persons or goods upon a road, other than vehicles running on rails or connected to electric conductors. ‘Articulated vehicle’ means any motor vehicle with a trailer having no front axle and so attached that part of the trailer is superimposed upon the motor vehicle and a substantial part of the weight of the trailer and of its load is borne by the motor vehicle. Such a trailer shall be called a “semi-trailer”.
“Trailer” means any vehicle designed to be drawn by a motor vehicle.
Contract must have international status
The CMR will only apply when the place of taking over the goods and the place designated for delivery as specified in the contract are situated in two different countries, one of which is a contracting country.
Provided the above conditions are met, CMR applies. To illustrate this point, CMR would apply to a contract of carriage where a lorry is loaded in the UK for the consignment to be delivered in France but the goods are destroyed before leaving the UK.
It has been noted from Article 2 that combined transport is subject to the CMR provided the consignment is not unloaded from the vehicle and the carrying vehicle is loaded on board the ship or train as the case may be. Absence of unloading and reloading is necessary for CMR to apply and this is equally true where a succession of carriers is involved. In this regard, Article 34 makes provision for a single contract to be performed by successive road carriers provided the goods remain on the vehicle throughout the entire transit period covered by the contract.
CONCLUSION AND PERFORMANCE OF THE CONTRACT OF CARRIAGE
Article 4 provides that the contract of carriage shall be confirmed by the making out of a consignment note. In accordance with Article 5, the consignment note so made shall be made out in three original copies signed by the sender and by the carrier. The first copy shall be given to the sender, the second shall accompany the goods and the third copy shall be retained by the carrier.
The consignment note
The consignment note must contain certain particulars which are set out at length in Article 6. Attention is drawn to the difference in emphasis placed upon the details set out in paragraph 1 from those designated in paragraph 2. Paragraph I provides that the consignment note shall contain the following particulars whereas paragraph 2 designates that the consignment note shall also contain other particulars where applicable.
Legally the consignment note is made up by the sender. However, if at the request of the sender the carrier undertakes to complete the consignment note in question he shall be deemed, unless the contrary is proved, to have done so on behalf of the sender: Article 7, paragraph 2.
Whilst the contract of carriage is confirmed by the making of a consignment note, Article 4 provides that the absence, irregularity or loss of the consignment note shall not affect the interest or validity of the contract of carriage which shall remain subject to the provisions of the convention.
Reservations by the carrier
On taking over the goods, the carrier shall check the accuracy of the particulars stated in the consignment note as to the number of packages, their marks and numbers and the apparent condition of the goods and their packaging: Article 8, paragraph 1.
This wording should be read in conjunction with paragraph 3 which provides that if the sender requires the carrier to check the gross weight of the goods as well as contents of the packages then any cost incurred by the carrier is to be borne by the sender.
Where the carrier has no reasonable means of checking the accuracy of the statements referred to above lie shall enter his reservations in the consignment note together with the grounds on which they are based: Article 8, paragraph 2.
Article 9 provides that the consignment note shall be prima facie evidence of the making of the contract of carriage, the conditions of the contract and the receipt of the goods by the carrier.
The trustworthiness placed in the consignment note by this article is modified, however, by Article 9, paragraph 2. This states that if the consignment note contains no specific reservations by the carrier it shall be presumed, unless the contrary is proved, that the goods and their packaging appear to be in good condition when the carrier took them over and that the particulars given in the consignment note as to the number of packages, their marks and numbers are correct.
“Unless the contrary is proved…” the details stated in the consignment note are not absolute and conclusive and it is always open to the carrier to furnish proof and declare that the statement contained in the consignment note does not correspond to the facts at the time he took over the goods.
LOADING AND UNLOADING OF GOODS
It is appropriate at this stage of our studies of CMR to draw attention to the absence of any specific provisions in the Convention concerning loading and unloading and the prosecution of the journey.
Article 17 provides that the liability of the carrier commences from the time he takes over the goods to the time of delivery. The arrangement for loading and unloading the consignment and which party is responsible for carrying out these operations is left to agreement between the parties to the contract of carriage.
Disagreement with regard to the fulfillment of this part of the contract and the determination of liability in the event of loss or damage occurring during these operations will involve recourse to whichever local law is applicable for the interpretation of the contract provisions. CMR, being silent on this point, cannot govern the interpretation of the contract of carriage concerning loading and unloading unless specific agreement is made between the parties to the contract.
When the contract of carriage states that the sender, the consignee, or persons acting on their behalf, undertakes to load and/or unload the consignment, Article 17, paragraph 4(c) relieves the carrier from liability for loss or damage arising as a result of these operations.
JOURNEY
The same problem as indicated could arise with regard to the prosecution of the journey. Certain particulars can be inserted in the consignment note in accordance with Article 6, paragraph 2.
Failure to do so could lead to disagreement over the route to be followed by the carrier, the care to be taken of the goods during the journey, whether the lorry is allowed to stop, and if so where, and for how long. Should the lorry be scheduled to travel through several countries, the choice of national law to adjudicate on these disagreements could have great significance. CMR is silent on these points.
Article 11 provides details concerning the use by the carrier of documents provided to him by the sender. It is the duty of the sender to place at the disposal of the carrier documents and information which the carrier will require for the purpose of customs and other formalities which must be completed at national frontiers.
Article 12 regulates the law for disposal of goods during the journey. It is the sender who, in the first instance, is the person who has the right to request the carrier to stop the goods in transit; however, the consignment note may be drawn up to include a provision that the consignee shall have the right of disposal from the time the consignment note is completed: paragraph 3. The sender’s right to dispose of the goods is also regulated by the provisions of paragraph 2 which states that the sender’s rights shall cease to exist when the second copy of the consignment note is handed to the consignee or when the consignee exercises his right under the provisions of Article 13, paragraph 1.
Whilst the sender has the right to change the consignee several times, once the consignee has ordered the delivery of the goods to another person, that other person is not entitled to name other consignees: paragraph 4.
In accordance with paragraph 5, the right of disposal of the goods is subject to the following:
► the production of the first copy of the consignment note to the carrier;
► indemnification of the carrier against expenses, loss or damage involved in carrying out the changed instructions;
► the possibility of the carrying out of changed instructions;
► the changed instructions must not interfere with the normal working of the carrier’s business;
► the new instructions do not require a division of the consignment.
DELIVERY
The CMR, in Articles 13 to 16, deals with certain difficulties which arise concerning the defining of the rights of the consignee, the effect of circumstances preventing proper delivery and the sale of goods by the carrier. The gaps between the main points covered by these Articles have to be filled by the use of common law or the general principles of the Convention.
Rights of consignee
After arrival of the goods at the place designated for delivery, the consignee shall be entitled to require the carrier to deliver to him against a receipt the second copy of the consignment note and the goods. If the loss of the goods is established or if the goods have not arrived after the expiry of the period provided for in Article 19, the consignee is entitled to enforce in his own name against the carrier any rights arising from the contract of carriage: Article 13.
The rights of the consignee therefore arise:
► before the goods reach him if he has received the top copy of the consignment note; or
► after the goods have arrived at their destination by delivery by the carrier of the second copy of the consignment note against a receipt.
It must be appreciated that the consignee cannot act in his own name unless he has met the obligations which devolve upon him from the consignment note. He must, therefore, pay the charges shown to be due on the consignment note in accordance with Article 13, paragraph 2.
Effect of circumstances preventing proper delivery
It is the carrier’s duty to deliver the consignment at the place named and under the conditions laid down in the consignment note. With delivery the carrier is considered to have fulfilled his principal duty. However, proper delivery may prove to be impossible, in which case the provisions of Article 14 and 15 are important.
The distinction between Articles 14 and 15 must be understood. Whilst Article 14 concerns the impossibility of carrying out the contract in accordance with the terms of the consignment note before the goods reach their destination, Article 15 is concerned with the situation which arises after the goods arrive at the place designated for delivery.
Under Article 14 the carrier shall ask for instructions from the person entitled to dispose of the goods in accordance with the provisions of Article 12, whereas Article 15 stipulates that the carrier must first request the sender for instructions.
Paragraph 2 of Article 15 allows the consignee to change his mind concerning delivery provided the carrier has not received instructions to the contrary from the sender.
If the consignee has already exercised his rights, under Article 12, paragraph 3, then he is regarded as the sender for tile provisions given in paragraphs 1 and 2 of the Article 15.
Sale of goods by the carrier
Article 16 deals with the financial consequences of instructions given to the carrier in the case of prevention of carriage or of failure to deliver. Paragraph 3 of this Article allows the carrier to sell the goods in certain circumstances without awaiting instructions from the person entitled to dispose of them. Paragraph 5 provides that in case of sale, the procedure to be followed shall be determined by the law or custom of the place where the goods are situated.
LIABILITIES
The CMR, in Articles IO and 17 to 29, can be divided into the following three sections:
► sender’s liability;
► conditions under which the carrier becomes liable;
► compensation due from the carrier.
Sender’s liability
The conditions under which the carrier is liable are outlined in Articles 17 and 22. Before we study these articles in detail, it must be appreciated that in certain circumstances the sender also has a liability to the carrier. Article 10 sets out a rule concerning damage which may be due to ‘defective packing of the goods’. If the origin of the damage is ordinarily defined, i.e., defective packing, the rule covers all damage resulting therefrom (namely, to persons, to equipment or to other goods).
The principle enumerated in this article is simple: the sender is liable for the various types of damage unless the defect was apparent or known to the carrier at the time he took over the goods and he made no reservations concerning it. It can be seen from further study of CMR that in certain circumstances the carrier’s liability is limited to the predetermined figure. However, no such limitation of liability is made on behalf of the sender. Recourse would have to be made to the law of contract to determine the extent of the sender’s liability in this regard.
The examples given above may not be the only source of damage attributed to the sender: he may have made false declaration concerning the goods or their loading or unloading, if it is agreed that these operations are for him to undertake. CMR does not specifically mention these points, except in reference to dangerous goods (see Article 22) but they could arise under the law of contract or under common law.
Conditions under which the carrier becomes liable
Article 17 sets out the principle involved for carrier’s liability and lists the damages under three heads: loss, damage and delay in delivery.
Loss may be either total or partial. The distinction between total loss and partial loss is important when the provisions of Article 20, paragraph 1 are applied in order to fix the departure date for the period of limitation for an action arising out of the contract of carriage: Article 32.
The carrier may dispute that the loss is total or partial if he eventually delivers the goods and puts forward the claim that there is only delay in delivery. Article 20 specifically covers this point and states that goods, which have not been delivered within 30 days following the expiry of the agreed time limit, may be held to be lost. If there is no stated time limit given in the consignment note under the provisions of Article 6, paragraph 2(f), then the goods shall be held to be lost if not delivered in 60 days from the time when the carrier took over the goods.
Delay is defined by Article 19. This Article only operates to determine whether delay has occurred when the consignment note does not contain any particulars provided for in Article 6, paragraph 2(f).
The fact that goods arrived damaged, delayed or short-delivered is sufficient to make the carrier liable or, more precisely, to raise a presumption of his liability. However, it must first be established that the goods were not damaged on their being taken over by the carrier or that reservations have not been made concerning the amount, weight and number accepted for carriage. The conclusive proof of the consignment note has been explained previously and provisions concerning the actual condition of the goods on delivery will be studied when dealing with Article 30.
The presumption of liability, indicated in Article 17, paragraph 1, is modified by the provisions of Article 17, paragraph 2. This paragraph provides that the carrier shall, however, be relieved of liability if the loss, damage or delay was caused by the wrongful act or neglect of the claimant, by the instructions of the claimant given otherwise than as the result of a wrongful act or neglect on the part of the carrier, by inherent vice of the goods or through circumstances which the carrier could not avoid and the consequences of which he was unable to prevent. The burden of providing that loss, damage or delay was due to one of the causes stated in Article 17, paragraph 2 rests upon the carrier: Article 18, paragraph 1.
In addition to the general provisions set out in paragraph 2, there are a certain number of situations which offer the carrier the advantage of release from liability if he can show that his case is covered by the provisions of the law. These are set out in paragraph 4, as follows:
► use of open unsheeted vehicles;
► lack of or defective condition of packing;
► the sender, the consignee or persons acting on their behalf undertaking handling, loading and stowage of goods;
► nature of certain kinds of goods;
► inadequacy of marks or numbers;
► the carriage of livestock.
The relationship between Article 17, paragraph 4, and Article 18, paragraph 2 is important. Article 18 provides that when the carrier pleads that loss or damage to the goods arises from one of the special risks enumerated in Article 17, paragraph 4, it is sufficient for him to establish that, allowing for all the known circumstances, the loss or damage could be so attributed to the special risks stated. This presumption is valid only in the absence of facts which establish the cause of damage.
For example, a Dordrecht court held that when a lorry driver falls asleep at the wheel and as a consequence the goods are damaged in an accident, the carrier cannot plead that the damage of the goods was caused because of “bad stowage” or “improper packing”. In the course of this judgment, the following was stated:
… CMR obviously applies as the standard of packing must be considered in relation to the normal risks of the journey, involving such things as jolting, colliding, jarring and similar effects and does not aim at covering such an accident as that which is the subject of the present action, since no packing could have stood up to it. (Dordrecht court 18.5.66.)
Thus, to enable the carrier to be relieved of liability for loss or damage arising from one of the risks enumerated in Article 17, paragraph 4, it is not sufficient for him to show that his case is covered by this Article, he must also establish that, making allowance for all the known circumstances, the loss or damage is of such a nature that it can reasonably be presumed to have arisen as a possible consequence of the special risk pleaded.
When dangerous goods are to be carried, the sender is required to inform the carrier that the goods are of a dangerous nature and the exact type of danger concerned and if necessary the nature of the precautions to be taken: Article 22, paragraph 1.
Paragraph 2 of Article 22 provides that if the carrier was not aware of the nature of the goods, he may at any time or place unload them, destroy them or render them harmless without compensation. This Article concludes with the rule “Further the sender shall be liable for all expenses, loss or damage arising out of their handing over for carriage or of their carriage”. Thus, with regard to dangerous goods, the CMR sets out a rule indicating that the sender is liable and putting on him the burden of total compensation.
Compensation due from the carrier
The extent of compensation payable by the carrier when he is liable for loss, damage or delay is covered in Articles 23 to 27.
Distinction is drawn between loss (Articles 23 and 26), damage (Articles 25 and 26) and delay (Article 23, paragraph 5, arid Article 26) and the interest payable on the compensation payable (Article 27).
The monetary limitation of carrier’s liability is detailed in Article 23, paragraph 3 which has been amended by a protocol to the CMR Convention concluded at Geneva on 5 July 1978 and which entered into force on 28 December 1980. The protocol only affects those countries which are party to it. The UK is a party to the protocol with the Carriage of Goods by Road Act 1965 being amended by the Carriage by Air and Road Act 1979, s.4(2)(a).
The original Article 23, paragraph 3, provides that compensation shall not exceed 25 francs per kilogram of gross weight short. “Franc” means the “gold franc” weighing 10/31 of a gramme and being of millesimal fineness 900.
The amended Article 23, paragraph 3, provides that compensation shall not exceed 8.33 units of account per kilogram of gross weight short. Article 23, paragraph 7, provides that the unit of account is the SDR as defined by the International Monetary Fund (IMF).
The figure given in Article 23, paragraph 3, is a maximum amount. The claimant must establish that he has suffered damage up to this amount. It is only when this amount is exceeded that the limitation referred to above comes into effect. Importance is, therefore, attached to paragraph 2 of this Article defining the way in which loss is calculated.
There are two rules in CMR to cover this:
► Compensation is calculated by reference to the value of the goods at the place and time at which they were accepted for carriage: Article 23, paragraph 1. The question of establishing the value of goods for the purpose of this paragraph was discussed at length in James Buchanan Ltd v. Babco Forwarding and Shipping (UK) Ltd (1978).
► In order to calculate the value of the goods on the day and at the place where they were accepted for carriage, reference is to be made to the commodity exchange price or, if there is no special price, the current market price. If neither of these is available, reference is made to the normal value of goods of the sai-ne kind and quality: Article 23, paragraph 2.
In addition to the value calculated as above, paragraph 4 of Article 23 provides that the carrier shall be liable for the carriage charges, customs duties and other charges incurred in respect of the carriage of the goods. These amounts fall due for total refund in the case of total loss and in proportion to the loss sustained in the case of partial loss.
Article 25 sets out the carrier’s liability in respect of damage. The limitation is set at that given in Article 23, paragraph 3, if the value of the whole consignment has been diminished and in proportion to that figure if only part of the consignment is affected or if any proportion of the consignment has been damaged.
This limitation figure is a ceiling figure in the same way as the limitation of liability for loss referred to above. The claimant must still establish that he has suffered a monetary loss to the amount stated.
It should be noted that the maximum amount of compensation stated above may be substituted against the payment of a surcharge by a higher amount declared in the consignment note as the agreed value of the goods: Article 24. In this case, where the declared value is so substituted, it is incumbent upon the interested party to produce evidence that the damage suffered computes to the agreed value figure.
The sender may also make a declaration in respect of special interest in delivery in the case of loss or damage or of the agreed time limit being exceeded by entering such an amount in the consignment note: Article 26.
In line with claims for loss or damage, if the claimant can prove that damage resulted from delay the carrier shall pay compensation by an amount not exceeding the carriage charges: Article 23, paragraph 5. This compensation may be higher, however, in the case of a declared special interest in delivery provided for in Article 26.
Article 27 provides that interest shall be calculated at 5% per annum (pa) of compensation payable, interest running from the date on which a written claim is sent to the carrier or on a date on which legal proceedings were instituted.
Article 28 provides for the case where, under the law of the court concerned, a claimant may rely for his action against the carrier on an argument in the realm of extra-contractual liability. If this is done, the carrier may then avail himself of the provisions of the CMR which excludes liability or which limits the compensation due from him.
The carrier cannot take advantage of the special provisions of the CMR concerning compensation if the damage is caused by willful misconduct or by such default on his part and which, according to the law of the courts concerned where the case is heard, is equivalent to willful misconduct: Article 29, paragraph 1. The same provision is attributed to the default or gross negligence by the carrier’s agent or any other persons of whose services the carrier makes use for the performance of the carriage: Article 29, paragraph 2.
CLAIMS AND ACTIONS
Chapter V of the CMR lays down in four Articles the rules concerning the duties of the consignee, the competence of legal bodies and the period of limitation for an action arising out of a contract of carriage subject to the Convention.
Article 30 sets out an assumption of proper delivery in favour of the carrier if the consignee cannot show that he has taken certain steps.
Action to be taken by the consignee to prevent the presumption of prima facie evidence of delivery of the goods in the condition described in the consignment note are:
► the checking of the condition of the goods with the carrier at the time of delivery; or
► the making of reservations to the carrier within the time limits stated.
At the time of delivery, the consignee and the carrier must make a joint statement on the condition of the goods. Whilst CMR lays down that there must be a joint check for the consignee to refute the assumption of proper delivery, no rules are laid down as to what form this check should take. The parties may agree orally as to the loss apparent at time of delivery but in actual fact if written evidence is not produced then the consignee is at the mercy of the carrier once he has taken delivery.
If loss or damage is apparent at the time of delivery and has been duly checked by the consignee and the carrier, evidence contradicting the result of this check is only admissible in respect of loss or damage not apparent at the time of delivery: Article 30, paragraph 2.
For the purposes of Article 30, loss or damage comes within two categories:
► that which is apparent at the time of delivery; Do that, which is not apparent at the time of delivery.
The consignee must make reservations at the time of delivery for loss or damage apparent at that time. Reservations in this case may be made verbally or in writing. For loss or damage not apparent at the time of delivery the consignee must make a reservation in writing within seven days of checking, Sundays and public holidays excepted.
Reservations made concerning the above need only be in general terms (Article 30, paragraph 1), but common prudence would dictate that the consignee should indicate to the carrier the exact nature of the loss or damage which is the subject of his complaint.
The CMR does not require the reservations to be accepted; the fact that a reservation is made is sufficient to refute the presumption of a proper delivery in accordance with the terms and conditions described in the consignment note.
The acceptance or declinature of the claim that loss or damage has occurred and the compensation payable, are left to negotiation between the parties. Recourse would have to be made to arbitration or a court of law if the parties failed to agree on the cause and extent of the damage and the compensation payable.
If no reservation or no check is made, the consignee comes up against the obstacle of presumption of proper delivery. However, this is a mere presumption and evidence to the contrary can remove it.
Two situations should be clearly distinguished:
► The first position is where a joint check has been made and a statement drawn up. The consignee at some later date wishes to prove other circumstances concerning delivery beyond the facts made in the statement. He cannot do
► this, except where there has been gross negligence by the carrier, unless he has sent a written reservation within seven days of the statement being drawn up and then only in respect of damage which was not apparent at the time of delivery.
► The second position is where a statement has not been made and neither has the consignee sent a written reservation within seven days of the delivery date. In this case, the carrier is at liberty to produce evidence to contradict the presumption of proper delivery.
Delay in delivery
A proper claim for delay in delivery must be made in writing 21 days from the time the goods were placed at the disposal of the consignee:
Article 30, paragraph 3. This period of time includes Sundays and public holidays which are excluded in the time limits given for notification of loss or damage.
COMPETENCE OF JUDICIAL AUTHORITIES
The CMR provides that legal proceedings arising out of a carriage subject to its rules should be submitted to:
► arbitration;
► a court designated by agreement between the parties;
► a court chosen by the claimant within the limits specified in Article 31, paragraph 1.
CMR allows for arbitration under Article 33, making only one reservation that the arbitrator so appointed shall apply the Convention.
Article 31, paragraph 1, provides that a plaintiff may bring an action before any court or tribunal of a contracting country designated by agreement between the parties. The fact that the court must be in a contracting country guarantees that proceedings will be judged on the basis of the Convention.
The claimant may, in addition, bring an action in the country where:
► the defendant is ordinarily resident, or has his principal place of business, or the branch or agency through which the contract of carriage was made; or
► the place where the goods were taken over by the carrier or the place designated for delivery is situated.
It is important to understand that the last line of Article 31, paragraph 1, is explicit when it states “no other courts or tribunals are authorised to act”.
The provisions of Article 31, paragraph 2, are important also in providing that no action may be brought before the courts of any country once the courts of another country have been applied to for a hearing within their competent powers unless the judgment of the court involved cannot be enforced in those countries where the new action is started. When a court or tribunal, in authority in one of the contracting countries, has passed a judgment enforceable in that country, then the judgment is to have the same power to be enforceable in the other contracting countries, ‘as soon as the formalities required in the country concerned have been complied with’: Article 31, paragraph 3. It is, however, provided by this paragraph that the formalities shall not permit the merits of the case to be reopened.
Article 32 lays down the period of limitation for an action arising out of carriage under the Convention. By stating actions arising out of ‘carriage’ and not ‘contract of carriage’, this Article has widened considerably the actions which come under its provisions.
The period of limitation for an action is one year, although where there is wilful misconduct or, according to the court authorised to hear the case, the equivalent of wilful misconduct, the period of limitation is extended to three years.
The period of limitation shall commence:
► in the case of partial loss, damage or delay in delivery, from the date of delivery;
► in the case of total loss, from the thirtieth day after the expiry of the agreed time-limit or where there is no agreed time-limit from the 60th day from the date on which the goods were taken over by the carrier;
► in all other cases, on the expiry of a period of three months after the making of the contract of carriage.
Article 32, paragraph 2, provides that the period of limitation may be suspended by a written claim. The party calling for the suspension is required to produce evidence in support of the suspension which may last until ‘the carrier rejects the claim by notification in writing and returns the documents attached thereto’.
The burden of proof of the receipt of the claim, or of the reply and of the return of the documents, shall rest with the party relying upon the facts set out in Article 32, paragraph 2.
A carrier receiving and not acknowledging the claim in writing suspends the period of limitation indefinitely. Limitation would then only be re-applied on his answering in writing but silence on this part, however, does not mean that he has accepted liability.
A written claim is not the only grounds for suspension; Article 32, paragraph 3, provides all other grounds for suspension recognized by the law of the court hearing the case.
CARRIAGE BY SUCCESSIVE CARRIERS
The rules governing a single contract performed by successive road carriers are laid down in Articles 34-40.
Article 34 provides that if there is a single contract to cover the carriage, each of the road hauliers engaged in carrying it out, or a proportional part of it, shall assume full responsibility for the whole operation. Each succeeding carrier becomes a party to the contract of carriage under the terms of the consignment note by reason of his acceptance of the goods and the consignment note.
Following Ulster-Swift Ltd v. Taunton Meat Haulage Ltd (1977), it would seem that Article 34 is not restricted to the situation where a carrier performs part of the carriage himself and then subcontracts part to a third party. It does not matter that the initial carrier has not in fact carried the goods at all.
Article 35 lays down that the provisions of Article 9 shall apply to the relations between successive carriers, except in the case of a counter claim or a set-off raised in an action concerning a claim based on the same contract of carriage, legal proceedings may only be brought against the first carrier, the last carrier or the carrier who was performing that portion of the carriage during which the event causing the loss, damage or delay occurred.
The term ‘the last carrier’ may give rise to some differences in interpretation. However, if the CMR is interpreted in the widest sense, ‘the last carrier’ must mean the carrier who, in the normal course of events, will be the one making delivery to the consignee named in the consignment note. A claimant may, however, bring an action at some time against several carriers, particularly if it is felt that one of the defendants may be insolvent. Relations between the various carriers themselves are governed in particular by Articles 37 to 40.
Article 37 provides that where one carrier has paid compensation in compliance with provisions of this Convention he shall be entitled to recover such compensation together with the cost and expenses incurred from other carriers who have taken part in the carriage, subject to the following:
► the carrier responsible for the loss or damage shall be solely liable for the compensation whether paid by himself or by another carrier;
► when the loss or damage has been caused by the action of two or more carriers, each of them shall pay an amount proportionate to his share of liability; should it be impossible to apportion the liability, each carrier shall be liable in proportion to the share of the payment for the carriage which is due to him;
► if it cannot be ascertained to which carriers liability is attributable for the loss or damage, the amount of the compensation shall be apportioned between all the carriers as laid down above.
If one of the carriers is insolvent, the share of the compensation due from him and unpaid shall be divided among the other carriers in proportion to the share of the payment for the carriage due to them: Article 38.
Article 39, paragraph 1, provides that no carrier against whom a claim is made under Articles 37 and 38 shall be entitled to dispute the validity of the payment made by the carrier making the claim if the amount of the compensation was determined by judicial authority after the first mentioned carrier had been given due notice of the proceedings and afforded an opportunity of entering an appearance. The same periods of limitation apply to claims between carriers as that set out in Article 32, however, the period begins to run either on the date of the final judicial decision fixing the amount of compensation payable under the rules of the Convention, or if there is no such judicial decision, from the actual date of payment: Article 39, paragraph 4.
Article 40 provides that the carriers shall be free to agree amongst themselves other rules for sharing compensation other than those laid down in CMR.
Article 41 states that, except for the provisions of Article 40, any stipulation which would directly or indirectly derogate from the provisions of the Convention shall be null and void. The nullity of one stipulation shall not involve the nullity of other provisions of the contract. In particular, Article 41, paragraph 2, declares that a benefit of insurance in favor of the carrier or any other similar clause, or any clause shifting the burden of proof shall be null and void.
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