The CMR Convention
The Convention on the Carriage of Goods by Road, in the French language, Convention relative au contrat de transport international de marchandises par route, is commonly known as the CMR. The Convention was originally entered by nine European countries in 1956. Numerous other countries have now acceded to the Convention and have legislated for it.
The Convention was largely prepared by a working party under a subsidiary organ of the United Nation’s Economic Commission for Europe. It was based partly on the International Convention on the Transport of Goods by Rail (1890) known as the CIM. The original convention was prepared in French. The French and English language texts of the CMR are equally authoritative.
The courts, across Convention states, have held that it is desirable that the convention be interpreted in an international and uniform manner. Regard may be had to decisions in other jurisdictions. Traditional common law principles of interpretation are not necessarily appropriate.
The principles of interpretation applicable in civil law jurisdictions may be appropriate in some cases, to supplement common law principles of interpretation.
The principle of good faith in contractual dealings is well established in civil law jurisdictions. Contractual obligations should be interpreted on the basis that the parties deal in good faith.
The court will seek the natural and ordinary meaning of the words in the context of the Convention. They are to be interpreted sensibly and broadly, rather than pedantically and rigidly.
Reference may be made to supplementary aids to interpretations. They include commentaries, decisions in other jurisdictions and the preparatory materials. Under civil law practice, reference may be made to the preparatory legislative material, more readily than is the case under common law.
Terms of the Contract
No specific form of contract is required by the CMR. The general law of contract applies to the formation of contracts for carriage. The terms of the contract for carriage, are as agreed by the parties, expressly or impliedly.
A note or document evidencing the terms of the contract may supplement the terms provided by the CMR. They are binding provided that they do not derogate from the mandatory CMR provisions.
The terms of the contract may be evidenced by a consignment note or other transport instructions. Questions may arise as to whether particular terms have been incorporated. The matter of the incorporation of exclusion clauses, and other clauses limiting liability is determined by domestic contract law.
The general principles of contract law in relation to the incorporation of terms and conditions, apply. There must be sufficient notice to the parties of the incorporation.
Application of the Convention
The onus is on the claimant to prove that the CMR applies. It is a matter of examining the substance of the contractual arrangements, in order to determine if it falls within the relevant definitions.
The CMR Convention applies to every contract for the carriage of goods by road in a vehicle for reward where the place for taking over the goods and the place designated for delivery specified in the contract, are in two different countries, at least one of which is a contracting country to the CMR. This is the position irrespective of the residence and nationality of the parties.
This movement is ascertained with reference to the contract. A national phase might be governed by the CMR if it is proceeded or followed by a stage to or from another state.
Movements within the United Kingdom and between the United Kingdom and the Republic of Ireland are not subject to the CMR convention. This applies by way of protocol to the CMR Convention.
Parties may incorporate the CMR by their contract, where it would not otherwise apply. Where there is no connection with a country whose legislation applies the CMR, the mandatory terms will apply only to the extent that the contract does not vary them.
Common Law and Convention
Where the CMR regulates the position, the common law does not apply. In other cases, the contract may supplement the Convention. Common law principles may be applied in interpreting certain provisions and in relation to matters, with which the Convention does not specifically deal.
If the carrier does not collect the goods at all, he may be liable for breach of contract on ordinary common law principles. Loss and damage occurring after delivery, will not usually be governed by the CMR.
Where under the law applicable, loss, damage or delay arises out of the carriage under the CMR gives rise to a non-contractual claim, the carrier may avail itself of the provisions of the Convention which exclude his liability or which limit the compensation due. In cases where the non-contractual liability for loss, damage or delay of a person (or corporate) for whom the carrier is responsible is an issue, that person may avail himself of the provisions of the Convention which exclude the liability of the carrier or which fix or limit the compensation due.
Parties in Carriage
A carrier is a person who contracts to carry, irrespective of whether he subcontracts the task to another. The general presumption is the carrier is free to sub-contract carriage, in the absence of a provision in the contract to the contrary.
A freight forwarder or freight forward agent is not a carrier. It acts as an agent of the owner, in making arrangement for others to carry the goods and in taking the other necessary steps (e.g. customs, transfer between various modes of transfer) as the circumstances and contract require.
A freight forwarder may assemble and consolidate shipments of property, perform break bulk and distributing operations, and assume responsibility for the transportation of such goods from the point of receipt, to the point of destination using the services of third-party carriers, exclusively or in combination in whole or in part. A freight forward may act as a carrier in a particular case.
Under the CMR, the freight forwarder may be an agent with no responsibilities, or it may itself be a carrier. The same entity may contract as a carrier or as a freight forwarder for different stages of the same transaction. The forwarding contract is not governed by the CMR.
The description of the parties in the contract will not necessarily be conclusive, as to whether it contracts as a principal, agent or freight forwarder. The substance of the obligations determines the position. There is more likely to be a contract for carriage if there is a single all in fee and an identified means of transport.
Contract of Carriage Required
A contract of carriage is required for the application of the CMR. The CMR applies to contracts for reward. Accordingly, there must be consideration or a payment obligation. It need not be in cash.
In the case of multimodal transport, there may be a transport contract which is not a contract of carriage under the CMR. It will be governed by its own terms and conditions, many of which will be similar to those applicable to CMR contracts of carriage.
A contract for the hire of a vehicle or for the hire of a vehicle with a driver is not in itself a contract for the carriage of goods. The position is determined by the contract only. The vehicle owner’s liability is likely to be less strict.
The hirer himself may be a carrier as against a third party if he has agreed to carry that party’s goods.
Goods refer to personal, movable items or chattels. Goods include their specific packaging and packing for the purpose of weight calculations under the CMR.
The CMR does not apply to carriage performed under the terms of certain international postal conventions, to furniture removal nor to funeral consignments. Furniture removal refers to a removal of the contents of a property, in the context of the moving of residence or moving a business establishment
Avoidance of Convention Void
The CMR provides that any stipulations which would directly or indirectly derogate from the provisions of the Convention are null and void. The carrier’s liability may not be reduced or eliminated. Unlike the equivalent maritime rule, the carrier’s liability may not be increased. Matters on which the Convention is silent are not affected.
The only way to avoid the application of the CMR entirely is to ensure that the contract of carriage does not fall within its terms. This may be possible if the transportation is divided into a number of contracts, none of which has an international element. Attempts to do this artificially will be void.
A way of avoiding and minimising risks under the CMR is to for the carrier not to undertake responsibility for certain aspects of the carriage, such as loading and unloading. The benefit of insurance in favour of the carrier or any similar clause, shifting the burden of proof is void. This refers to insurance paid for by the consignor in respect of the goods. It does not refer to the carrier’s public liability cover.
Carriage by Road Required
The CMR applies to the international carriage of goods by road. However, the fact that part of the transport takes place off the road does not preclude its application. While they remain on the road vehicle, the CMR applies, notwithstanding that there is transport by sea, rail, inland water or air. The various stages, taken together or separately must involve an international movement of goods from one state to another.
If there is a road stage in one state followed by a non-road stage (e.g. by sea) to another state, whether or not followed by another stage, the CMR does not apply. It does not apply to the first stage, as it is entirely in the first state. It does not apply to the second stage if the vehicle did not go with the goods.
If there is carriage by road from state A to state B followed by further sea stage, the CMR applies to the initial road stage but does not apply to the sea stage because the goods do not travel on the vehicle. If, however, the goods remain on the vehicle the whole time and the vehicle itself is transported by sea, or otherwise, the CMR applies to the entire journey.
Carriage in Vehicle
The CMR applies to contracts for the carriage of goods in a vehicle. Accordingly, it does not apply to the carriage of motor vehicles, which are themselves driven. It does apply to so-called “multimodal” transport if the goods are not unloaded from the vehicle. This includes unloading for the purpose of transfer to the next mode of transport. Accordingly, unit loads which are transferred from a vehicle and placed on a ship, aircraft or train, cease to be subject to the CMR.
Vehicles include motor vehicles, trailers, semitrailers and articulated vehicles. A motor vehicle is any self-propelled vehicle normally used for the transport of persons or goods on a road, other than vehicles running on rails or connected to an electric conductor.
An articulated vehicle is a motor vehicle with a trailer, having no front axle and no attached part of the trailer superimposed upon the motor vehicle where the substantial part of the weight of the trailer and load is borne by the motor vehicle. This type of trailer is called a semi-trailer. A trailer is any vehicle designed to be drawn by a motor vehicle.
Multi-Modal Carriage I
If the goods and vehicle are loaded on to a ship, roll on roll off, as opposed to load on load off, the CMR continues to apply. If, however, the carrier changes the agreed mode of transport in breach of contract, it remains subject to the CMR if it would have been so subject, but for the breach.
Unloading for the purpose of inspection, convenience or reconditioning does not break the application of the CMR, provided that the goods are reloaded and continue on their journey. It need not necessarily be in the same vehicle. Unloading for operational convenience to another vehicle or to a subcontractor’s vehicle does not affect the continued governance of the contract by the CMR.
The CMR does not cease to apply if the goods are stored incidentally to the performance of the contract, provided that this is in accordance with the terms of the contract or within its scope. If, however, the storage is undertaken in breach of contract, the carriage may be deemed to end.
If it becomes impossible to carry out the contract in accordance with the terms of the consignment note before the goods reach the place designated, the carrier must ask for instructions to the person who is entitled to dispose of the goods. He must endeavour to carry out the carriage as best he can. This may require unloading and transfer to another vehicle. The CMR will nonetheless apply.
Multimodal Carriage II
In the case of multimodal transport, the CMR applies to loss, damage or delay incurred during the road stage. If it cannot be proved at what stage the loss or damage occurred, the CMR applies. If it is known to have occurred during the sea stage, the position is not governed by the CMR, even if the goods have not been unloaded.
The law applicable to the sea stage applies in relation to the liability of the road carrier, provided that the act or omission is not caused by the carrier by road, but by some event which could only have occurred in the course of and by reason of carriage by that other means of transport. In this case, the liability is determined not by the CMR, but in the manner in which the liability of the carrier by that other means of transport would have been determined. If there are no prescribed conditions, the liability of the carrier by road shall be determined by the CMR.
The other carrier will typically be a sea carrier. The sea carrier will typically be the subcontractor of the main carrier and the law applicable to the carriage of goods by sea will apply. The loss, damage or delay must have taken place during the carriage by the other means of transport. It must not be caused by an act or omission of the road carrier. The loss and damage must be caused by an event which could only have taken place during the other means of transport. In order for this exception to apply, the damage or loss will typically be caused a risk associated with the means of transport, e.g., carriage by sea.
The Hague or Hague Visby rules apply to contracts for the international carriage of goods by sea which are evidenced by a bill of lading or similar documents. Outside of these rules, the position is governed by the general law of contract. Sea waybills fall outside the Hague Visby rules because they are not bills of lading in themselves. See generally the sections on sea transportation and the Hague Visby rules.
References and Sources
Convention and Legislation
Convention on the Contract for the International Carriage of Goods by Road (CMR) done at Geneva on the 19th day of May, 1956
Protocol to the Convention on the Contract for the International Carriage of Goods by Road (CMR) done at Geneva on the 5th day of July, 1978
Protocol to the Convention on the Contract for the International Carriage of Goods by Road (CMR) done at Geneva on the 27th of May 2008
International Carriage of Goods by Road Act, 1990.
International Carriage of Goods by Road: CMR 6th Edition 2014 Malcolm Clarke
C.M.R. : Contracts for the International Carriage of Goods by Road 3rd Ed 2014 Donald James Hill
The Law of Transport and Road Haulage (1999) J. Canny (Author)
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