What is CMR?

28 Окт
28.10.2011

В публикации говорится о правовом регулировании перевозки грузов автомобильным транспортом по документу, называемому ЦМР. В частности, рассматриваются вопросы, связанные с заключением и исполнением договора перевозки в такой форме, ответственностью перевозчика, претензиями и исками, юрисдикцией.

A QUICK OVERVIEW OF THE APPLICATION AND IMPORTANT TERMS

CMR refers to the Convention on the Contract for the International Carriage of Goods by Road. It is intended to align 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 in most instances it automatically applies in the event that the applicability test in Article 1 of CMR 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 and in this article we will only be dealing with the following main points:

  1. Conclusion and Performance of the Contract of Carriage
  2. Liability of Carrier
  3. Claims and Actions
  4. Limitation and Time Bar
  5. Jurisdiction

Conclusion and Performance of the Contract of Carriage

In most carriage of goods, there is the issuance of a consignment note. Whilst a consignment note is not a precondition to the application of CMR, its absence means that certain provisions (Article 8.2, 9, 12 and 34) cannot apply. The consignment note is prima facie evidence of the making of the contract of carriage, the conditions of the contract and the receipt of goods by the seller.

The consignment note should contain the following particulars:

  1. Date of consignment note and place at which it is made out;
  2. Name and address of sender;
  3. Name and address of carrier;
  4. Place and date of taking over the goods and delivery address;
  5. Name and address of consignee;
  6. Description – nature of goods, packing method;
  7. Number of packages and special marks of numbers;
  8. Weight and quantity of goods;
  9. Charges relating to carriage (carriage, supplementary, customs, etc)
  10. Instructions for Customs (and other formalities)
  11. Statement that the carriage is subject, notwithstanding any clause to the contrary, provisions of the convention.

The following information / particulars may also be included:

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

The parties are entitled to enter into the consignment note any other particulars which may be useful. In the event that the particulars on the consignment note are inaccurate, any damage caused is to be borne by sender since the sender is in the best position to provide the information. The carrier is not under any duty to enquire into the accuracy or adequacy of such documents or information unless there is any wrongful act or neglect on the part of the carrier.

There is an obligation on the carrier to check the goods for the purposes of confirming that the goods have been received by the carrier 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 but the carrier would then have to debunk the presumption (under Article 9) that the goods are as indicated in the consignment note.

However, if the carrier has no reasonable means to check, he can enter the reservation on the consignment note. However, it should be noted that the reservations do not bind the sender unless he has expressly agreed to by 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 meets the eye”. This may apply to 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 delay in delivery. The carrier is relieved of liability if:

  1. Loss, damage or delay was caused by wrongful act or neglect by claimant and/or claimant’s instructions;
  2. Inherent vice of the goods
  3. Unavoidable circumstances leading to unpreventable consequences
  4. Special risks (specified in Article 17.4)

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

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

In relation to the “special risks” referred to in Article 17.4 – this relates to:

  1. open sheeted vehicles – risk of exposure to weather and wastage
  2. lack of or defective condition of packaging
  3. handling, loading, stowage or unloading of goods (depends on contract)
  4. 4nature of certain goods
  5. insufficiency or inadequacy of marks / numbers on packaging
  6. carriage of livestock

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

Claims & Actions

The claimant must check soon after delivery to defeat any suggestion that loss or damage could have occurred between delivery and checking. The carrier should be informed of loss / damage and given indication of the same as soon as possible. In case 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 carrier. Value is fixed at commodity exchange price, and 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:

  1. a declaration of special interest under Article 26
  2. wilful misconduct of the carrier in accordance with Article 29
  3. a claim to recover charges under Article 23(4)
  4. a claim based on delay under Article 23(5)

Any compensation is limited under the CMR based on weight of the goods. In any event, 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 shall 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 shall be payable. It should be noted that “custom duties” does not include excise duties.

In relation to 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 or market value rather than “cost of cure”.

The clamant can also recover “charges incurred in respect of the carriage of goods” and this can include 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 & Time Bar

The limitation period to bring an action under CMR is normally one year, unless it is a case of wilful misconduct, then the limitation period is three years. This is to promote certainty in the haulage industry, bearing in mind the time bar to issue proceedings under BIFA is 9 months.

The date to commence calculating from is:

(a) In relation to partial loss / damage / delay in delivery: Date of delivery

(b) In relation to total loss: Thirty days after expiry of agreed time limit, if no agreed time limit sixty days from date on which the goods were taken over by the carrier.

(c) If not 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 comprising the written clam which should include copies of supporting documentation. Receipt of the claim must be proved by the claimant. Effective suspension continues until the carrier responds. In the event that the carrier rejects the claim and returns the documents, the claimant needs to show clear rejection of the claim and return of documents before commencing legal proceedings. Once rejection is received, the period of limitation starts to run again.

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

Jurisdiction

There are different categories specified of courts with jurisdiction:

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

In any event, should there be issues arising with the application of CMR and the effects thereof, it would be parties’ best interest to consult with legal specialists. This is because there are various complexities associated with the CMR, which would be important to consider in dealing with any dispute, related to the same.

Authored by:
Juanita May Low
Источник: http://www.lester-aldridge.co.uk/news/news/what-is-cmr-1883/