International carriage of goods by road and liability of the carrier under the CMR – Rail, Road & Cycling

Scope and application

The international transport of goods by road is governed primarily by the provisions of the “Convention relating to the contract for the international transport of goods by road”, abbreviated CMR after the French title (“The Convention relating to the contract for international transport of goods by road “). The Convention was signed on May 19, 1956 in Geneva and entered into force on July 2, 1961 (Amended by a Protocol signed in Geneva on July 5, 1978 and entered into force on December 28, 1980, introducing Special Drawing Rights (SDRs) as a unit taking into account that Turkey has acceded to both the Convention and the Protocol, with effect from 31 October 1995 (Act of Accession, 7 December 1993 – 3939, OfG. 14 December 1993 – 21778)).

The CMR applies compulsorily to all international transport of goods by road. When part of the transport is by sea or rail (or air) and the vehicle containing the goods is transported on board a ship or with a railway wagon (or by air), the whole transport will always be considered as transport by road, as long as the goods remain unloaded in the road vehicle throughout this part of the journey (art. 2/1). In cases where the CMR applies, the parties cannot “escape” the Convention or derogate from its provisions. According to Article 41, the parties to the contract of carriage have no right to derogate from the terms of the Convention and any contract or clause purporting to do so is void.

In accordance with Article 1/1, the CMR applies to contracts of carriage when the place of taking over (the point of origin or the place of loading) and the named place of delivery of the goods, as specified in the contract of carriage, are located in two different countries, at least one of which must be a country of a Contracting State (Art. 1/1). The CMR, being an international treaty, should only be applicable between States that have ratified it and art. 1/1 clearly indicates that it will be sufficient to have the participation of only one Contracting State in the transport envisaged. In this respect, the nationality or residence or establishment of the parties is not taken into consideration. In addition, the transport must be carried out by a “vehicle”, a definition which covers motor vehicles (other than those running on rails), articulated vehicle; (any motor vehicle to which a trailer is coupled), trailers and semi-trailers. The CMR also applies to transport carried out by States or by governmental bodies (art. 1/3), such as national transport companies. However, the CMR does not apply to the transport of mail, funeral consignments and removals.

sending

Article 4 of the CMR imposes a mandatory provision which specifies the issue of a consignment note. Thus, the transport must be carried out under a consignment note reflecting and confirming the contract of carriage. In this sense, the consignment note is not formative but only declarative of the existence of the contract. The consignment note must indicate the place where it was drawn up, contain information on the parties to the contract and the recipient, the place of taking over of the goods and their designated destination, the goods to be transported, the costs relating to the transport , the number of packages, the gross weight of the goods, etc. The consignment note must also contain, where applicable, a statement of the value of the goods and the amount representing the special interest in delivery, the agreed period within which the transport must be carried out. The consignment note must also contain the statement that the carriage is subject, notwithstanding any clause to the contrary, to the provisions of the Convention (art. 6). In accordance with article 7/3, if the consignment note does not contain the statement declaring that the carriage is subject to the provisions of the CMR, the carrier is liable for all costs, losses and damages suffered as a result of this omission by the carrier. entitled to dispose of the goods. The consignment note is drawn up in three original copies signed by the sender and by the carrier. These signatures may be printed or replaced by the stamps of the consignor and the carrier if the law of the country where the consignment note was drawn up so permits. The first copy is given to the sender, the second accompanies the goods and the third is kept by the carrier (art. 5/1).

The function and role of the consignment note are decisive in international road transport covered by the CMR. The consignment note must be At first glance proof of the conclusion of the contract of carriage, the conditions of the contract and the receipt of the goods by the carrier (art. 9/1). However, the consignment note is not conclusive. If the consignment note does not contain any specific reservations from the carrier, it is assumed, until proven otherwise, that the goods and their packaging appeared to be in good condition when taken over by the carrier and that the number of packages , their marks and numbers corresponded to the information given on the consignment note (art. 9/2). Therefore, the presumption will be that any loss or damage to the goods discovered at destination should have occurred during transport. If the carrier alleges that it should not be held liable, the burden of proof is on the carrier.

Thus, when taking charge of the goods, the carrier is required to ensure the accuracy of the information given on the consignment note relating to the number of packages as well as their marks and numbers. He must also check the apparent condition of the goods and their packaging (art. 8/1). In the event that the carrier does not have the possibility of carrying out the said verifications, he must insert reservation clauses in the consignment note.

Risk of loss or damage

The general rule regarding the carrier’s liability under the CMR is that the carrier is responsible for [the total or
partial] loss of or damage to the goods between the time he takes charge of the goods and the time they are handed over to the recipient, as well as for delay in transport (art. 17/1).

The carrier is liable for the delay if the goods are not delivered within the agreed period or, in the absence of an agreed period, within a reasonable period having regard to the circumstances of the transport (art. 19). When the parties have agreed on a period within which the transport must be carried out, this must be indicated in the consignment note (art. 6/2, f). If the goods are not delivered within thirty days after the agreed period, or in the absence of such agreed period, within sixty days from the taking over of the goods by the carrier, it shall be definitively presumed that the goods are lost and the owner of the goods will be entitled to claim compensation for the loss of the goods and not due to the delay.

The carrier is also liable for damage caused by the acts and omissions of its servants and agents or of any other persons it uses for the performance of the transport (art. 3).

Liability for fault of carriers

The CMR liability regime, in the broad sense, corresponds to liability for fault. However, this is not the standard concept of fault liability. The carrier is not required to exercise mere due diligence, but must exercise the utmost diligence to avoid damage. This system is called, more precisely, hardened (supplemented) fault liability with duty of care and reverse burden of proof.

To be released from liability, the carrier must prove that the loss or damage to the goods or the delay was caused either: (i) by the fault or negligence of the plaintiff, or (ii) by the instructions of the plaintiff, or (iii) by inherent defect [fault/defect] of the goods, or (iv) by circumstances which the carrier could not have avoided and whose consequences he could not have foreseen (art.17/2).

On the other hand, the Convention, in art. 17/4 provides for a presumption, in the sense that if the carrier proves that the damage is attributable to one of the circumstances provided for therein, he will also be released from liability. Art. 17/4 means: (i) the use of uncovered open vehicles, when their use has been expressly agreed, (ii) defective packaging: (iii) the handling, loading, securing or unloading of the goods by the sender, the consignee or any person other than the carrier; (iv) the nature of certain types of goods.

When the carrier is required to repair the total or partial loss of the goods, the recoverable damages are calculated by reference to the value of these goods at the place and at the time when the carrier accepted them for carriage (art. 23/1) .

Limited liability of carriers

In principle, the carrier’s liability is limited. The original wording of the Convention is modified and the term of account has been replaced by SDR by the 1978 Protocol and the carrier’s liability is limited to 8.33 SDR (Special Drawing Right; for the value of the SDR (https:/ /www.imf.org/external/np/fin/data/rms_five.aspx) per kilogram for total or partial loss of the goods In the event of delay, damages are limited to the amount of transport costs (Art. 23 /5).

However, it should be noted that if the loss, damage or delay has been caused by an intentional fault on the part of the carrier or persons for whom he is responsible or by negligence which is, according to the domestic law applicable to a certain case, amounting to willful misconduct; the provisions limiting the liability of the carrier are not applicable.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.