What is CMR?

21 Июн

Статья посвящена Конвенции о договоре международной дорожной перевозки грузов (КДПГ) от 19.05.1956. Автор рассматривает следующие правовые институты: заключение и исполнение договора перевозки, ответственность перевозчика, претензии и иски, давность и юрисдикция.

СMR is the Convention on the Contract for the International Carriage of Goods by Road. This United Nations 1956 Convention aligns the legal regime of the main contract between sender and road carrier with that between the road carrier and sea carrier.

CMR can be expressly incorporated, but it also automatically applies in the event that the applicability test in Article 1 is met. It applies to international multimodal carriage – but the carriage has to be predominantly by road, of goods, for reward.

There are 51 Articles in the CMR, but here we deal only with the following main points:

  • Conclusion and performance of the contract of carriage;
  • Liability of carrier;
  • Claims and actions;
  • Limitation and time bar;
  • Jurisdiction.

Conclusion and performance of the contract of carriage

In most transactions concerning carriage of goods, a consignment note is issued. A consignment note is not a precondition to the application of CMR, but its absence means that certain provisions (Articles 8.2,9, 12 and 34) cannot apply. The consignment note is prima facie evidence of the making of the contract of carriage and the conditions of the contract.

The consignment note should contain the following particulars:

  • Date of consignment note and place at which it is made out;
  • Name and address of sender;
  • Name and address of carrier;
    • Place and date of taking over the goods and delivery address;
    • Name and address of consignee;
    • Description – nature of goods, packing method;
    • Number of packages and special marks or numbers;
    • Weight and quantity of goods;
    • Charges relating to carriage;

•     Instructions for customs. The following information/ particulars may also be included:

  • Time limit in which the carriage is to be carried out;
  • Charges sender is to pay; Amount of “cash on delivery” charges
  • Declaration as to value of goods, etc.
  • Any instructions in relation to insurance of the goods
  • List of documents handed to the carrier.

Any other particulars that may be useful can be added to the consignment note. If the particulars on the consignment note are inaccurate, the sender is liable for any damage, since the sender is best placed to provide the information. The carrier is not under any duty to enquire into the accuracy/

adequacy of such documents/ information, unless there is any wrongful act or neglect on the part of the carrier.

The carrier is obliged to check the goods to confirm that they have been received in the quantity and condition stated in the consignment note. However, if the carrier fails to check, it is not per se a breach of the contract of carriage, though the carrier would have to refute the presumption (under Article 9) that the goods are as indicated in the consignment note.

If the carrier has no reasonable means to check, he can enter this reservation on the consignment note. It should be noted that such reservations do not bind the sender unless he has expressly agreed to be bound by them in the consignment note. It should be noted that “checking” extends only to “apparent condition” on reasonable examination – i.e. “so far as meets the eye” – for example, whether the goods and their packaging appear to be in a condition to withstand the intended journey.

Liability of the carrier

The carrier is responsible for total/partial loss and damage from  the time the goods are passed  into his possession and the time of delivery, including any delay in delivery. The carrier is relieved of liability if:

•   Loss, damage or delay was

caused by wrongful act O] neglect by a claimant and the claimant’s instruction:

  • Inherent vice of the good;
    • Unavoidable circumstances leading to unpreventable consequences;
    • Special risks (specified in Article 17.4).

“Inherent vice” is regarded as some defect in the goods, which develops through ordinary processes, and causes injury to or destruction of the goods. Unavoidable circumstances/ unpreventable consequences exceptions apply only if the carrier has exercised “utmost care”. The carrier’s duty extends not only to avoiding incidents but also to mitigating the effect of loss. Defect of any vehicle does not exempt the carrier’s liability.

Goods are regarded as lost if they are not where the) should be delivered, or they have been destroyed, or their physical condition is such that they are commercially useless to the consignee. “Damage” to goods means any change to their physical condition which reduces their value. “Delay” means delivery later than the time agreed or beyond a   • reasonable time (if not provided for in the consignment note). “Reasonable” time is to be determined looking at the nature of the goods, the type of vehicle, permitted driving hours, road conditions and whether proper instructions have been given to the carrier by the sender.

The “special risks” referred to in Article 17.4 relate to:

  • Open sheeted vehicles -risk of exposure to weather and wastage;
  • Lack of or defective condition of packaging;
  • Handling, loading, stowage or unloading of goods (depends on the contract);
  • Nature of certain goods; Insufficiency or inadequacy of marks/ numbers on packaging; Carriage of livestock.

The carrier has the burden of proof to show that the loss/ damage is attributable to one or more of these special risks. However, the claimant is entitled to prove otherwise.

Claims and actions

The claimant must check soon after delivery to rule out possibility that loss/damage could have occurred between delivery and checking and should inform the carrier of the same (and an indication of the loss/damage) as soon as possible. In cases of non-apparent loss, damage reservations must be in writing.

If and when liability of the carrier is established,

compensation  is calculated in reference to the value of the goods at the place and time when they were accepted for carriage. Value is fixed at the commodity exchange price or, if there is no such price, at the current market value price.

The carrier is only liable for consequential loss, such as loss of commercial profit, when there is:

  • A declaration of special interest under Article 26;
  • Willful misconduct of the carrier in accordance with Article 29;
  • A claim to recover charges under Article 23(4);
  • A claim based on delay under Article 23(5).

Compensation is limited under the CMR based on the weight of the goods. However, the carrier is only liable to the extent that the claimant has proved actual loss of the amount claimed. Carriage charges, custom duties and other charges must be refunded in full in case of total loss, and in proportion to the loss sustained in case of partial loss, but no further damage is payable. It should be noted that “custom duties” does not include excise duties.

In a claim for delay, the carrier shall pay compensation for such delay not exceeding the carriage charges. The liability of the carrier is measured by loss of market value rather than “cost of cure”.

The claimant can also recover “charges incurred in respect of the carriage of goods”, and this can include the costs of mitigating loss. The right to interest runs from when the claim is sent to the carrier. A

claim is a general intimation that the claimant considers the carrier to be liable, without necessarily any quantification of the complaint given as yet.

Limitation and time bar

The limitation period to bring an action under CMR is normally one year, but three years in a case of willful misconduct. This is to promote certainty in the haulage industry, since the time bar to issue proceedings under British International Freight Association (BIFA) rules is nine months.

The date to commence calculating from is:

(a)   In relation to partial loss/ damage/delay in delivery: the date of delivery;

(b)  In relation to total loss: 30 days after expiry of the agreed time limit; if there is no agreed time limit, 60 days from the date on which the goods were taken over by the carrier;

(c)   If not covered under (a) or (b): three months after the contract of carriage was concluded.

The period of limitation is suspended once a written claim has been made. The claim should be accompanied by documents in support of such written claim. Receipt of the claim must be proved by the claimant. Effective suspension continues until the % carrier responds. If the carrier rejects the claim and returns the documents, the claimant

needs to show clear rejection of the claim and the return of documents before commencing legal proceedings. Once rejection is received, the period of limitation starts to run again.

If legal proceedings/ action are not commenced within the limitation period, the action is time barred and cannot be admitted.

Jurisdiction

There are different categories specified of courts with jurisdiction:

  • Court of contracting country designated by agreement between the contracting parties (but this may not extend to the consignee);
  • Court of the country where the defendant is ordinarily resident (this must be a natural person as opposed to a business);
  • Court of the country where the defendant has its principal place of business;
  • Court of the country in which is located the branch or agency through which the contract was made;
  • Court of the country where the goods were taken over by the carrier or where they were to be delivered.

In any event, if there are issues with the application of CMR and its effects, it will be useful to obtain legal advice due to the complexities associated with the CMR, which need to be considered when dealing with any dispute related to it.

Автор: Juanita May Low

Источник: Container Management. – 2012. –  June. – P. 50 – 51.

Добавить комментарий

Ваш адрес email не будет опубликован. Обязательные поля помечены *