Cargo Transportation - © Nicole Kornet 2018. all rights reserved. This text has been generated - Studeersnel (2023)

© Nicole Kornet 2018. all rights reserved. This article has been produced for educational purposes in international business law courses. Copy and distribute this material without written permission


Introduction to contracts for the carriage of goods by road: the CMR Convention

Dr. Nicole Kornet Maastricht University Faculty of Law

I. Introduction 1

2. Scope of application of CMR 1


4. Disposition and identity of the carrier 8

5. Liability of the carrier 17

6. Defense under CMR 18

7. Responsibilities under the CMR 23

7 Limitation of Liability 23

7 Breaking through the limitation of liability 23

1. Introduction

CMR Convention – Convention relative au Contrat de transport international de Marchandises parlaw Route (CMR) – governs contracts for the international carriage of goods by road. It was signed in Geneva in 1956 and entered into force on July 2, 1961. The Convention currently has 55 parties, ranging from Ireland and the United Kingdom in the west to Tajikistan in the east, Iran, Russia and Mongolia in the east, and Morocco and Tunisia in the south. 1 The Convention aims to provide a uniform set of rules and standardize the conditions of contracts for the international carriage of goods by road, in particular those relating to the documents used for such carriage and the responsibility of the carrier. CMR attempts to strike a balance between the rights and obligations of the carrier and the sender of the cargo.

2. The scope of application of CMR

The CMR applies to contracts for the international carriage of goods by road within the scope of Articles 1 and 2. For the CMR to apply, the shipment must meet the requirements of Articles 1 and 2 of the CMR. Article 1 stipulates:

(1) This Convention applies to every contract for the carriage of goods by road for remuneration, if the place of receipt specified in the contract and the place named for delivery are located in two different States, at least one of which is a Contracting State, irrespective of the parties' residence What is the place and nationality.

1 For current status information see: treaties.un/doc/Publication/MTDSG/Volume%20I/Chapter%20XI/XI-B-11.en.pdf

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From this clause, it can be determined that at least five contract of carriage requirements fall within the scope of the CMR. First, there must be a contract for the carriage of goods by road. Secondly, transportation must be carried out in vehicles, which is further defined in paragraph 2 as "motor vehicles, articulated vehicles, trailers and semi-trailers, as defined in Article 4 of the Road Traffic Convention of 19 September 1949" .Third, the carriage must be rewarded. In other words, the carrier must receive the cost of the carriage; transporting the goods free of charge is not covered by the convention. Fourth, there must be an international dimension, when the contract stipulates the place to receive the goods and the designated The international dimension is established when the place of delivery is located in two different countries. This requirement is satisfied even if the carriage ends before the goods leave the country in which the carrier takes over. In Buchanan v. BabcoForwarding, 2 and whiskey The transport in relation to the goods. The whiskey was stolen at the docks at Dover and, therefore, the goods never crossed the border. However, CMR applies in this case as the place of receipt of the goods is contracted to be London and the named place of delivery is Paris. The carriage It has an international character. Fifth, there needs to be a linking factor with the contracting country, which is determined by the place where the goods are received or the designated place of delivery is a contracting country. Paragraph 3 explains that if the transportation is carried out by a national or government agency or organization The Convention also applies. Paragraph 4 contains some exceptions. The CMR does not apply to shipments made under the terms of any international postal convention; funeral consignment or furniture removal.

Contrary to the Hague-Visby Rules, which require contracts for the carriage of goods by sea to be governed by bills of lading, under the CMR it is not necessary for contracts to be contained in a specific type of document. 3 Clause 4 states that even without a consignment note, the CMR still applies:

The contract of carriage is confirmed by issuing the waybill. The absence, irregularity or loss of the consignment note shall not affect the existence or validity of the contract of carriage, which shall still be bound by the provisions of this Convention.

The scope clause also does not require the parties to expressly agree to apply the CMR. 4

Article 2 of the CMR extends the scope of the Convention to cases where the vehicle carrying the goods completes part of its journey by sea, rail, inland waterway or air. In other words, CMRs apply in "piggyback", "kangaroo" or roll-on-roll-off (RoRo) situations, where the vehicle with the cargo is used or transported by another mode of transport, such as a ship, aircraft or rail wagon. In this case, the CMR still applies to the entire contract of carriage, provided the goods remain on the vehicle (as defined in Article 1(2)). If the goods are unloaded from the vehicle and loaded onto another mode of transport, the road freight transport ends and the CMR is terminated

2 [1978] AC 141.3 compared with the Hague-Visby Rules which limited their application to bills of lading. 4 Although see e. Italian law: The Italian Supreme Court held that the CMR applies only if the parties expressly agree in the contract that the carriage is protected by the Convention. Berlinieri, p. 17.

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The carriage by sea, rail, inland waterway or air must have begun and had not ended when the loss, damage or delay occurred. This then becomes a matter of determining when the movement of the other means of transport begins and ends. CMRs are drafted under other conventions. Therefore, the question of when transportation by another mode of transportation starts or stops needs to be determined according to the rules applicable to that other mode of transportation. For carriage by sea governed by the Hague-Visby Rules, Article 1(e) establishes that the carriage of goods by sea covers the time period from when the goods are loaded on board to when they are unloaded. In Thermo Engineers,6 the contract involved the transport of a heat exchanger from Aylesbury to Copenhagen. During the loading of the trailer carrying the heat exchanger onto the ro-ro ship, the heat exchanger hit the ship's hatch, causing damage. The court held that the sea transport had started since the trailer passed the overboard ramp and crossed the stern line. As a result, the land route stopped and the sea transport began. This division is not so simple for every case. In a French case (1991),7 a trailer loaded with clothes was transported from Casablanca to Marseille. Trailer stolen at Marseille dock under the supervision of stevedores. While the theft of the overland trailer had nothing to do with the shipping, the court held that it fell under the jurisdiction of the shipping because the trailer was still at the stevedore, so the shipping was not over yet. Essentially, road transport ends or resumes when other carriers receive or relinquish control of the cargo. Courts in different jurisdictions may therefore interpret this requirement very differently.

Third, the loss, damage or delay must have been due to an event that would otherwise have occurred during transportation by other means of transportation. It's a question of causation: whether the loss, damage or delay was caused by some event that occurred while in transit by the other mode of transport. This third requirement can have broad and narrow interpretations. Under the narrow interpretation, the emphasis is on "can only occur during and due to other means of transport" and the nature of the event causing loss, damage or delay. Under this narrow interpretation, exceptions can only be invoked where the events leading to the loss, damage or delay are typical or characteristic of other modes of transport, e.g. damage caused by sea water can only be a consequence of transport by sea. A broad interpretation of the third requirement focuses on causation to determine whether an event in transit by another means of transport caused the loss, damage or delay. Under this broad interpretation, what matters is that the event occurred because the vehicle was carried by other means of transport. This needs to be assessed on a case-by-case basis.

For example, in Thermo Engineers, it was suggested that heat exchangers could be damaged in the same way, ie. During road transport because of a collision, because it could stick out the trailer and collide with a bridge or viaduct during road transport. The court emphasized in that case that what was relevant was not the nature of the event causing the loss, damage or delay that could only have occurred during the carriage of another means of transport, but whether the event itself could have occurred during the transport of the means of transport. other means of transportation. in this case,

6 Thermo Engineers v Ferrymasters [1981] 1 All ER 1142.7 Cour d'appel d'Aix en Provence,1991 年 5 月 30 日。

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Damage occurred during loading due to collisions with bulkheads, which in this case were only possible during sea transport.

In the St Clair case in the Netherlands,8 the Dutch Supreme Court had to consider this situation in relation to a shipment of textiles from the Meerssen road to Tunisia. For the legs of Marseilleto Tunisia, the vehicle loaded with textiles was carried by the ship St Clair. A fire broke out and could not be extinguished. The ferry and everything on board, including the vehicle carrying the textiles, were lost. The Supreme Court must consider whether this was an event that could only have occurred due to transportation by other means of transport. The discussion focused on whether the event causing the loss had to be typical of the mode of transport (narrow interpretation) or whether it was related to events that occurred during other modes of transport (broad interpretation). After all, fire is not an event specific or typical to maritime transport, but one that can occur in other modes of transport as well. The Supreme Court looked at the purpose of the clause, which was to avoid the liability of the road carrier to the consignor beyond the liability of the other mode of transport carrier to the road carrier - ie. Avoiding Liability Gap - This way road carriers avoid situations where they would be liable to the sender without recourse to the carrier where the carrier was not involved in the loss, damage or delay. Given the underlying purpose, the Supreme Court adopted a broad interpretation that focused on whether the loss in a particular case was caused during and as a result of an incident on another conveyance. In this case, the loss was due to a fire that destroyed a vessel carrying a vehicle carrying textiles.

If these conditions are fulfilled, the liability of the road carrier shall be determined in the same manner as the liability of the carrier for other modes of transport if the consignor concludes a separate contract for the carriage of the goods by other means of transport in accordance with the conditions prescribed by law for the carriage of goods by this means of transport. with the carrier. This requires the court to create a fictitious contract between the sender of the goods and the carrier of the other mode of transport on the basis of the conditions applicable to that contract of carriage as mandatory law. For example, if the other mode of transport is sea transport, it is necessary to imagine a hypothetical contract of carriage between the sender of the goods and the ocean carrier according to the Hague-Visby Rules.

8 Supreme Court of the Netherlands, 14 June 1996, S&S 1996, 86.

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The court held that the establishment of the hypothetical contract does not depend on the actual situation agreed between the ocean carrier and the road carrier. 12

The consequence of this exception is that the liability of the road carrier is no longer determined under the CMR, but can instead rely on the defenses and limitations of liability of the law applicable to other modes of transport. This is reasonable because the damage or loss was not caused by the road carrier, but occurred during the period of responsibility of the carrier of the other mode of transport. Nevertheless, the road carrier will be liable under the CMR without adequate recourse against other carriers. If the sender concludes the contract separately, he will face this set of rules anyway. The sender can anticipate that the cargo will need to be transported using another mode of transport for some part of the journey, for example, in order to cross water. The application of other liability regimes is therefore not entirely unexpected.

Where the Convention applies, article 41 provides that there shall be no derogation from the Convention, either in favor of the consignor or the carrier.

3. Consignment note

Road freight transport is usually covered by a consignment note. Like the bill of lading, the waybill functions as a receipt for the receipt of the goods by the road carrier and evidence of the contract of carriage and its terms. Article 9 stipulates that "the waybill is the prima facie evidence for the conclusion of the contract of carriage, the conditions of the contract and the receipt of the goods by the carrier". Unlike the bill of lading, the waybill is not a document of title.

According to Article 5, the original consignment note shall be in triplicate, signed by the consignor and the carrier. The first copy is handed over to the sender, the second copy is with the shipment, and the third copy is retained by the carrier. If using multiple vehicles or carrying different types of goods, a consignment note can be made for each vehicle or each type of goods.

Article 6 stipulates the contents that should be included in the consignment note, especially the consignor and carrier, the place of receiving the goods and the designated place of delivery, the name and address of the consignee, the name of the goods and the mode of delivery. Packing, number of packages and weight of goods, charges and any instructions from sender. When the carrier takes over the cargo,

12 Antwerp Court, 22 December 1997, (1998) ETL 399-418.

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He must check the accuracy of the statements made in the consignment note as to the number of packages and their marks and numbers, as well as the physical condition of the goods and their packaging. Article 9(2) states that

If no specific reservation of the carrier is stated on the consignment note, unless proven to the contrary, it shall be presumed that the goods and their packaging are in good condition when the carrier takes possession, and that the number, marks and numbers of the packages correspond to those stated on the consignment note.

4. Right of Disposal and Identity of the Carrier

The sender is the party that concludes the cargo transportation contract with the carrier. The consignor is the person who receives the goods and the consignee is the person who receives the goods. Therefore, the sender can also be the consignee or the consignor.

Article 12 provides for the right to dispose of the goods. The sender of the goods has the right to dispose of the goods, such as requesting the carrier to stop transporting the goods, changing the place of delivery, the consignee, etc., unless when drafting the waybill, the sender records the effect that the consignee has this right. Once the second copy of the waybill—the accompanying copy—has been handed over to the consignee, or once the goods have arrived at the designated place, and the consignee exercises the rights stipulated in the first paragraph of Article 13, the consignor's right of disposition shall be terminated. terminated. The delivery requires two copies of the delivery and the waybill.

In the transport of goods by road, there may often be more than one carrier involved. Therefore, it becomes important to determine which carrier is responsible for the shipment and therefore liable for any loss, damage or delay. The starting point is that the carrier is the party that concludes the contract of carriage and undertakes the transportation of the goods from the place of pick-up to the designated place of delivery. Even if a party subcontracts the performance of the entire shipment to another carrier, that party may still be considered the carrier. 13 This means that although the carrier may only be the carrier on paper, he is still responsible for the goods as carrier.

The carrier may subcontract the transportation or hire another carrier to perform the transportation as a continuous carrier. If the carrier subcontracts the transportation, it shall conclude a separate transportation contract with the sub-carrier. The sub-carrier will issue its own consignment note to the carrier. Since there is no contractual relationship between the sender and the subcontractor, the sender of the goods will have no right to act under the subcontract if the goods are lost, damaged or delayed. For subcontracts, the sender is the primary carrier for the subcontract

13 Ulster-Swift Ltd and Pigs Marketing Board v Taunton Meat Haulage Ltd and Fransen Transport N., (C.)[1977] 1 Lloyd’s Rep 346

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Complex continuous transport case

The successive carrier system in CMR is based on the idea and practice that a carrier carries cargo for each leg of a longer journey and passes the cargo and corresponding CMR consignment note from one carrier to the next. It is clear from Professor Loewe's comments based on his notes and recollections of the negotiations of the Convention that the provisions on continuous carriage were not intended to apply to simple subcontracting. He wrote: "Where a person enters into a contract of carriage as carrier but himself does not perform any part of the carriage, the provisions of section 34 et seq. apply. Cannot apply". 14 It is worth noting that the continuous carrier concept in the CMR is modeled on the continuous carrier concept in the CIM for rail transport. 15 Early versions of CIM were based on a monopoly system of tracks and lines for national railways, making cross-border rail transport impossible without continuous transport. However, this is not comparable to road transport,16 suggesting that these regulations may be outdated.

Articles 34 and 36 expressly state that all carriers carry in turn under the same contract. This understanding is further supported by the provisions on division of responsibility, which determine the share of responsibility based on the share in the freight. This is also supported by the provisions on jurisdiction, requiring that in the case of an inter-carrier claim, liability is divided among the successive carriers, it is necessary to make all the successive carriers parties to the same action. In subcontracting, by contrast, the consignor pays no share of the freight. Each contract is concluded between the parties for the agreed shipping freight. First between the owner/sender and the main carrier/contract carrier, then between the main carrier and the sub-carrier, and possibly between the sub-carrier and the sub-carrier. In this case, the general rules of the CMR, including the general rules of jurisdiction, apply to each individual contractual relationship.

Nonetheless, there are important proceedings in England and the Netherlands which extend the concept of successive carriers and which need to be considered because of their far-reaching implications for the actual performing carrier.

One of the issues that has arisen is that the participation of a carrier is necessary in order to be considered a continuous carrier. For example, can a contracting carrier be considered a successor carrier even though he has not performed any carriage himself? The English Court of Appeal Ulster-Swift Ltd and Another v Taunton Meat Haulage Ltd. and Another resolved the issue. 17 In this case, Ulster Swift contracted Taunton to transport 300 pork carcasses from Northern Ireland to Basel, Switzerland. The goods were loaded onto refrigerated trucks at the claimant's premises. Shipping took five days. After the goods arrived at their destination, they were inspected and found to be faulty, and were destroyed by the Swiss authorities. Ulster-Swift is seeking damages from TauntonMeat Haulage. Taunton Meat Haulage did not carry the cargo but subcontracted the entire transport to Fransen Transport N. Fransen issued the consignment note. The waybill indicates that the owner of the goods is the consignor and Fransen is the carrier. Taunton asserts that they are entitled to compensation from Fransen, releasing them from any liability they may be judged

14 Loewe (1976), 311 at 297, para 276.15 Uniform Rules Concerning the Contract of Goods by Carriage of Goods by Rail, as Appendix B to the Convention on International Carriage of Goods by Rail. 16 Lamont-Black (2017), p. 15.17 [1977] WLR 625; [1977] 1 Lloyd's Rep. 346

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Accept responsibility for any spoilage of Ulster Swift meat. Fransen asserted that Taunton's claim was time-barred under s.32 CMR. Taunton, in turn, argued that this was an "inter-carrier claim" and that Article 39(4), which provides for an extended limitation period in relation to an inter-carrier claim, would apply. However, Franson argued that they were not continuous carriers, in which case Article 39 would not apply. Instead, they argued that since Taunton subcontracted the entire carriage, Fransen did not carry it to anyone in a row, and therefore they were not a serial carrier. The Court of Appeal at first instance relied on Donaldson J's reasoning:

"This scheme reflects the common, almost universal, situation in which cargo owners approach carriers and contract with those carriers for the entire shipment. It is then left to the carrier to subcontract the successive stages of the shipment, all of which People no doubt, no one would question, the successive carrier. The only weird thing here is that the primary carrier, the one who contracts with the owner of the cargo, doesn't actually undertake any stages of the transport himself. Look at Article 1 Article 1 I think that the CMR Convention must take into account that for this purpose the company or person who contracts with the owner of the goods is the first carrier, whether or not he himself takes possession of the goods, and that all subsequent carriers are successive carriers within the meaning of these provisions people."

Accordingly, the time limit of Article 39(4) and not the general time limit of Article 32 will apply to the processing of claims between carriers for the loss of the shipper's cargo.

The view that the contract carrier does not need to perform any carriage itself is not generally accepted, but has been supported, for example, by the courts of Austria, Germany, Switzerland and the Netherlands. 18 Proponents of this approach argue that there must be a continuous chain of carriers who all accept the cargo and the consignment note; a new consignment note "doesn't work". 19 This issue was not resolved in the Ulster Swift case, so it is doubtful whether there is a true continuous carriage relationship in the spirit of the CMR if the prime contractor contracts with the sender and the subsequent carrier to whom he subcontracts issues the consignment note. The whole transport, he named himself, not as the carrier's prime contractor.

The successor carrier accepts the consignment note when it is obtained and agrees to be bound by it and its terms and description of the quantity and condition of the goods. The simple fact that the carrier owns the waybill is not enough to constitute acceptance of a "very special and sometimes burdensome legal regime", especially if the carrier also issues its own waybill. 20 The subsequent carrier must actually accept the consignment note. Article 35 requires a second or subsequent carrier to "state his name and address on a second consignment note," a copy that accompanies the shipment. This enables the claimant to determine whom to sue and also serves as evidence of acceptance of the consignment note.

In Coggins T/A PC Transport v LKW Walter International Transportorganisation AG, 21 judges held that goods and consignment notes could be received through an agent. Coggins has entered into a contract with LKW for the carriage of the goods, provided that Coggins will subcontract the transportation to subcontractors. Coggins will then hand over the waybill to LKW for payment. However, subcontractors were found

18 See Lamont-Black (2017), for an example at page 13. .10.19 Ibid; Clark (2014), supra. 50b.20 TC Brussels 11.5 (1988) 23 ETL 720, 725.21 [1999] Lloyd's Rep 225.

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Qualify this simple meaning by demanding compliance with the rules of art. 35... Assuming that the carrier picks up the goods from the previous carrier with a copy of the consignment note for the next part of the carriage in accordance with the terms of the consignment note, but does not fill in his name and address, or may enter his name on the copy of the consignment note but not Enter his address. In my judgment, this does not mean that the art world does not accept consignment bills. 34".

Therefore, the waybill must be actually accepted. It's also important for practical reasons. Since the subsequent carrier will be responsible for the entire shipment, he needs to be made aware of this. Especially when the subsequent carrier is only performing domestic segments, it may not be aware of the application of the CMR and otherwise believe it is covered by its standard trading conditions. Generally speaking, mainland courts also support the acceptance of the consignment note as a basic form requirement. Although the Belgian courts disagreed. The Belgian court of first instance held that although acceptance of the consignment note is evidence of the carrier's acceptance of the international contract, it is not the only factor. 25 However, the Belgian Supreme Court recently ruled that a carrier must receive a consignment note to become a successor carrier, and there is insufficient knowledge involved in international carriage. 26

Where a sub-carrier issues a separate consignment note, there is evidence that it is not a successive contractor. In Flegg Transport Ltd v Brinor International Shipping and Forwarding Ltd,27 it was held that successive carriers must ship under the same CMR consignment note. If the contracted carrier transports part of the cargo himself and subcontracts the other part of the voyage to a subcontractor who issues a waybill for the voyage he performed, the subcontractors are not considered consecutive carriers because they do not Carriage of the goods under the same contract by the carrier. While a carrier may accept cargo and waybills from carriers higher up in the chain, this only applies to contracts covered by the waybill, in which case a separate contract/waybill exists. Therefore, the original contract of carriage may result in more than one CMR contract. Successive carriers must carry the goods under the same contract, which is widely accepted in different jurisdictions. For example, in one case in Belgium, the sub-carrier issued his own waybill for the portion of the journey performed, which meant he was not a continuous carrier, even though he received the original waybill and submitted both waybills to the carrier The consignee's agent arrives. 28

In British American Tobacco Switzerland SA and others v Exel Europe Ltd and others,29 Lord Mance considered the combined effect of Coggins and Ulster-Swift. In this case, the main carrier Exel subcontracted the transportation of two shipments of tobacco products to Essers and Kazemier. Essers and Kazemier took delivery of the goods in the name of the carrier and issued a consignment note, designating their respective interests in the goods as senders. It is the understanding of the parties that all carriers involved are successive carriers within the meaning of Article 34. According to Lord Mans:

"12. The common ground between the parties in this case necessarily involves their acceptance of

25 Brussels Court of Belgium, 6 April 1984 (1984) 19 ETL 431.26 Supreme Court of Belgium, 12 April 2013.27 [2009] EWHC 3002.28 Comm Bruxells, 11.5 (1988) 23 ETL 720.29 [2015] UKSC 6 5.

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In the case of the first container, Essers or other Essers and in the case of the second container, Kazemier is the successive carrier under Article 34. In this regard, current parties are content to proceed on this basis, with Professor Malcolm Clarke saying in his International Carriage of Goods by Road: CMR, 6th Edition (2014), that paragraph 50a(i) is "controversial ” but accepted by Donaldson J and the Court of Appeal Ulster-Swift v Taunton Meat Haulage Ltd [19750 2 Lloyd's Rep 502 , 507; [1977] 1 Lloyd's Rep 346, 358-361 and other national courts held that if (as here) a firm Contracting for the carriage of the goods, but subcontracting out the entire performance, the first company is the first carrier and the second company becomes a continuous carrier as far as CMR is concerned. Furthermore, although Article 4 of the CMR states that "the contract of carriage shall be confirmed by making a consignment note", it goes on to say that "the absence, irregularity or loss of the consignment note does not affect the existence or validity of the contract of carriage". The contract of carriage shall still be governed by the provisions of this Convention.

  1. However, Article 34 stipulates that the second carrier or the succeeding carrier can only become a party to the contract of carriage by "accepting the goods and the waybill according to the terms of the waybill". Thus, at this point, the existence of the CMR Note seems to be important, as stated by the United Nations in 1975 at paragraph 16 in "Comments on the Contract for the International Carriage of Goods by Road (CMR) Convention of 19 May 1956" by Prof. Loewe "Based on preparatory work, personal notes and recollections of negotiations, as well as the logic and spirit of the Convention itself", paragraph 275 states that the wording of Article 34 is aimed at ensuring that subsequent carriers know through the consignment note that they are carrying may only be within the territory of one country) are international shipments subject to CMR regulations. In this case, at least when the relevant Essers companies and Kazemier collected their respective shipments and signed the relevant CMR consignment notes, the two CMR consignment notes really existed. Whether Clause 34 applies in this case is a question we can leave as the parties are prepared to proceed without further examination, as these appeals all involve the relevant Essers company or companies and Kazemier's successive shipments, in Clause 34. "

The Dutch Supreme Court also had the opportunity to consider the requirements of Article 34 CMR in Beurskens v Veldhuizen. 30 In this context, the Supreme Court appears to have abandoned its previous narrow treatment of Section 34, accepting an expanded treatment mirroring BAT v Exel. In this case, Hewlett-Packard commissioned the German logistics provider Trans-O-Schnell Lieferdienst GmbH to transport the computer equipment from the Netherlands to Germany by road. Trans-O-Schnell commissioned Dutch airline Beurskens, which in turn commissioned another Dutch airline, Veldhuizen. Veldhuizen picks up the shipment and issues a CMR consignment note specifying HP Warehouse as shipper; no entry for carrier or subsequent carrier. Some of the goods were stolen while the vehicle was parked at Veldhuizen's premises. Trans-O-Schnell paid Hewlett-Packard in full for the stolen goods and then sued his contractor, Beurskens, in Germany. Beurskens tried unsuccessfully to rely on packaging restrictions and had to pay Veldhuizen the full value. Beurskens subsequently filed a lawsuit against Veldhuizen in the Netherlands, arguing that Veldhuizen, as the carrier responsible for the loss of the cargo, should reimburse Beurskens for the damages that had been paid to Trans-O-Schnell.

The Dutch Supreme Court has interpreted the CMR on the basis of Article 31 of the Vienna Convention on the Law of Treaties. It shows that the purpose and purpose of Title VI of the CMR is to enhance the prospects for recovery by parties interested in the cargo against successive carriers and carriers seeking recourse. On this basis, it

30 Supreme Court of the Netherlands, 11 September 2015, Case No. 14/03211, NJB 2015/1635, S&S 2016/1.

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Under Article 39, any chain of recourse to which the performing carrier has not entered into a contract seems entirely inappropriate, unless the carrier has been warned or cautioned, which, according to the wording of Article 34, should be effected by taking over the carrier's cargo and consignment note, This includes the names of other carriers. Therefore, it is believed that Chapter VI is not suitable for simple subcontracting matters, and extensive involvement will cause uncertainty and may lead to adverse consequences.

Undesirable Consequences of a Broad Interpretation

Broad interpretations, such as the recent Dutch Supreme Court ruling, while allowing for uniformity of compensation between different parties and thus full recourse, on the other hand, may further open the floodgates of forum choice: open courts will become more It is important to proceed with litigation in the most favorable court as quickly as possible, with as many litigants as possible joined or at least notified, so that the effectiveness of the litigation is maintained in the recourse claim.

The Dutch extended view means that any carrier in the chain can seek recourse against the performing carrier downstream, regardless of when and why it paid compensation, and as long as the performing carrier determines the amount of compensation, the amount of its recourse is Being informed of the proceedings may be determined by any court decision.

In order to assert his position in such extreme circumstances, it would be better for each performing carrier to be free from liability or liability to the carrier even before delivering the damaged goods to the consignor and its contractors or notifying them of their loss. File a lawsuit. Only limit the value of the package while involving as many others in the subcontractor chain as possible. However, it is unlikely that he knew everything. But more importantly, submitting every single cargo claim to the court system to preserve the performing carrier's status seems like a colossal waste of resources. "

Lamont-Black concludes: 34

"The concept of the serial carrier is outdated. The system of the serial carrier depends on all its provisions working together to make it appropriate and desirable: narrowly and strictly interpreted. The concept no longer fits the modern realities of road transport, but rather It undermines the value judgment of the CMR and the purpose of its strict application.

Except for railway transportation, other modes of transportation are not applicable to the similar system. In fact, today's system encourages the abuse of actual carriers who, often after entering into a long list of subcontracts, may assume full responsibility for transporting the goods at far lower rates than primary or contract carriers. The shipping charges charged to the customer. Therefore, it is proposed to abolish this concept and replace it with the actual carrier concept in the air and sea conventions, allowing the cargo owner to sue the actual carrier and providing a short additional limitation period for recourse claims between carriers. In the absence of any amendment to the CMR, courts should interpret the concept of successive carriers narrowly.

While back-to-back liability and direct recourse are ideal for freight forwarders and non-performing carriers, CMRs are written with the cargo interest and the actual or performing carrier in mind. In order to be able to conduct business quickly and efficiently and limit their exposure to risk, the (actual) carrier should be able to settle the bill after the time limit has expired. this

34 Lamont-Black (2017),p. 20.

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Broad and varied interpretations of the successive carrier regime beyond its initial remit lead to uncertainty and increase risk for the weakest in the chain (the actual carrier). It could also clutter the court system with preventive claims by carriers against as many other 'carriers' and subcontractors as possible, potentially resulting in a significant increase in litigation and other frictional costs. "

5. Liability of the Carrier

The primary obligation of the carrier is to deliver the goods to the designated place of delivery on time and in the condition in which he takes them over. Article 17(1) states that the carrier is liable for any loss, damage or delay in delivery that occurs between his taking over the goods and the time appointed for delivery. This clause states that the carrier's liability does not start with the actual carriage, but can occur earlier when he "takes over" the goods. In terms of liability under CMR, the carrier must "take over" the cargo for the purpose of: transportation. Sometimes, the carrier takes possession of the goods for other purposes, such as warehousing or packaging before transportation begins. These are incidental to carriage and the responsibility of the carrier will be governed by domestic law. It will depend on the specific facts of the case when such ancillary operations cease and the contract of carriage for the purpose of liability under the CMR begins. 35 In one case in the Netherlands, loading goods on a vehicle was considered to be tantamount to taking over the goods for transport. 36 Likewise, if the phrase "prise en charge sur camion" (taking over on the van) is used, the carrier is deemed to have taken charge of the goods when they were loaded onto the vehicle. 37 The Convention does not contain a definition of delivery and therefore does not contain the termination of the carrier's liability under the CMR. Generally, delivery is the transfer of title to another party, the consignee or his agent. 38 It is unclear whether the goods had to be unloaded to be delivered, or whether the carrier had delivered if he had delivered the goods at the warehouse at their destination. German courts have held that delivery occurs when control of the goods or the right to exercise them has passed from the carrier to the consignee. 39 To make a delivery, the consignee must accept the goods; it is not enough for the vehicle to reach its destination. 40

Article 20 stipulates that if the goods are not delivered within 30 days after the expiry of the agreed time limit, or if there is no agreed time limit, within 60 days from the date when the carrier takes over the goods, if there is conclusive evidence of the loss of the goods, the person entitled to file a claim can be regarded as lost. Article 19 provides for delayed delivery of goods

35 Messent and Glass (2018), para. 3. 6.36 Hof's Gravenhage, Netherlands, 15 June 1979 (1980) 15 ETL 871.37 Messent and Glass (2018), para. 6; Court of Appeal, Paris, France, 16 May 1969 (1969) BT 190, ( 1969) ETL896.38 Messent and Glass (2018), para. 6.39 OLG Zweibrücken, Germany, 23 September 1966, I. 40/67 (1967) NJW 717; LG Frankfurt am Main, Germany, 14 May 1965 3/30, 228/64, quoted in Messent and Glass (2018), para. 3. 6.40 See the case law cited in Messent and Glass (2018), para 1. 6.

© Nicole Kornet 2018. all rights reserved. This article has been produced for educational purposes in international business law courses. Copy and distribute this material without written permission


vehicle. The court rejected the argument that the damage was partly due to the claimant's actions, as the additional damage caused by moving the cylinders was a direct result of the road accident. 47 In another case, a vehicle carrying goods was delayed in a customs parking lot due to defective documentation provided by the sender, and was then stolen unattended. The loss of the goods is not considered to be sufficiently related to the fault of the sender, so that the carrier can be exonerated. 48 years old

The main reasons for the sender's liability for loss or damage are related to the actions of the sender, such as defective packaging of the goods, improper handling, loading, stowage and unloading by the consignee. However, these issues are covered by Article 17(4). The main circumstances in which a carrier may rely on Article 17(2) are where the claimant is negligent in providing relevant information, fails to provide appropriate documentation, or fails to give instructions as to appropriate precautions for a particular risk. 49 However, this will also depend on the expertise of the parties. For example, carriers should know that while wine can withstand a little cold weather, it can be easily damaged if it is exposed to extreme cold. Since such cold weather in winter is not uncommon in northern Europe, there is no need to inform the carrier of the need to provide adequate protection. 50 In another case, the sender instructed the carrier to set the thermostat to 20C to transport nectarines, which arrived frost-damaged. The carrier is well aware of the necessary conditions for the carriage of such goods, and since the sender does not know the internal temperature of the vehicle, the carrier cannot claim that the sender's instructions were the sole cause of the damage and must therefore accept a share of liability. 51 The German court held that the claimant's instructions needed to be binding on the carrier in order to relieve him of liability. 52

Inherent defects in the goods referred to in Article 17, paragraph 2, are latent defects in the goods that lead to damage or destruction during transport. Examples include faulty manufacturing processes, spontaneous combustion under ordinary shipping conditions, or moisture levels that cause condensation damage. In TM Noten BV v Hardin, 53 industrial leather gloves were shipped from Calcutta to Rotterdam. When they arrived, they were damp, stained, moldy and discolored. Moisture in the gloves condensed into droplets from the roof, damaging the gloves. The court held that the glove was inherently defective. In one case in France, inherent defects were considered as "the goods have deteriorated due to internal causes",54 for example, fruit infected with a disease before transport was inherently defective. 55 In Germany, there has been some discussion on the relationship between Article 17(2) and Article 17(4)(d). It is generally considered that Article 17(4) (Typical Condition of Goods) should apply to goods that are generally fragile,

47 Comm Tournai, France, 21 November 1972 (1972) JPA 446.48 Cour de Cassation, Belgium, 12 December 1980 (1981) 16 ETL 250.49 Messent and Glass (2018), para 1 6.50 Messent and Glass ( 2018), para. 6. 6: Court of Appeal of Nîmes, France, 18 May 1988 (1988) BT 472.51 Cour de Cassation, France, 19 April 1982 (1982) BT 309, (1983) 18 ETL 13. Messent and Glass (2018), para. 3. 6.52 Kohler, Art. 17 CMR, No. 32.53 [1989] 2 Lloyd’s Rep 527.54 Rouen Court of Appeal, 28 June 1990, Case No. 2151/88.55 Court of Appeal of Aix-en-Provence, France, 21 June 1985, Case No. 83/6119.

© Nicole Kornet 2018. all rights reserved. This article has been produced for educational purposes in international business law courses. Copy and distribute this material without written permission


Whereas goods which are usually and generally not easily lost shall be covered under Article 17(2) (Atypical condition of the goods). 56

Unavoidable circumstances beyond the reach of the Carrier may include theft, robbery or hijacking, vandalism or arson, collision or weather. Silber v Islander Truckingcase 57 showed that the phrase "could not be avoided" included "even with great care". Therefore, this is a high bar for operators. In Michael Galley Footwear v Laboni, 58 carriers were prosecuted for a lost shipment of shoes. The driver and his assistant parked in the unguarded parking lot for dinner. For them, driving to a guarded parking lot means violating the driving time rule. They turned on the siren; however, the thief was able to turn off the siren and steal the goods. The court held that the carrier could have avoided the damage if the driver and his assistant had taken turns guarding the vehicle. The carrier cannot invoke Article 17(2) and is held liable.

French courts use both the French concept of force majeure and the CMR concept of circumstances that the carrier cannot avoid and the consequences he cannot avoid. It should be noted that the concept of force majeure is stricter than Article 17(2). A force majeure event that could neither be foreseen nor avoided at the time of conclusion of the contract, resulting in the failure to perform the obligations. 59 In contrast, under article 17(2), it is immaterial whether the event was foreseeable or not. Aggravated theft is considered an incident, the consequences of which the carrier cannot avoid and which he cannot prevent, if committed in a violent manner which could not have been avoided or prevented. 60 Also considered exempt under Article 17, paragraph 2, are fires caused by foreign objects rubbing tires; 61 weather conditions declared as natural disasters; 62 customs officials decide to go on strike when carriers are about to cross the border; 63 traffic accidents at night . 64

In contrast, the Dutch Supreme Court held that goods lost as a result of armed robbery could only be exonerated under Article 17(2) if the carrier had taken all measures that a reasonable carrier could expect. 65 In this case, the carrier's door to the delivery address of the goods is closed for delivery. The driver then parked the vehicle in an unguarded car park and the cargo was subsequently stolen. The driver's failure to travel another 50-60 km to a guarded car park meant that the carrier had not taken all reasonable steps to avoid the situation leading to the loss. Although the carrier argued that this would result in a driving time violation, the court held that this was not true

56 Eckardt, in Gruber et al., p. 48.57 [1985] 2 Lloyd's Rep. 243.58 [1982] 2 All ER 200.59 Cour de Cassation, plenary session, France, 14 April 2006, case no. 02-11.60 Commercial Chamber of the French Court of Cassation, 9 April 2013, Case No. 11-28.61 French Court of Appeal of Versailles, 8 April 2010, Case No. 09/00315.62 Court of Appeal, Paris, France, 2 October 2014, Case No.: 12/19914.63 Court of Appeal, France, 12 November 1996, Case No.: 94/003206.64 Court of Appeal, Metz, France, October 1990 30, Case No.: 88/1313.65 Supreme Court of the Netherlands, 17 April 1998, NJ 1998, 602 (Oegema/Amev).


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