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.
► 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 wilful 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.
