Consignment

Consignment Note

The carriage of goods by road (CMR) Convention requires that a consignment note be issued.  It acts as a receipt for the goods and as evidence of the terms of the contract of carriage.  It is not a document of title.

The absence of a consignment note does not affect the validity of the contract of carriage. However, its absence may make it difficult to prove that there is a contract for the international carriage of goods.  Certain rights exercisable under the Convention require the production of a consignment note. It is not necessarily the case that the consignment note must comply with the requirements of the Convention for all purposes in this context.

The form of consignment note is not prescribed.  However, certain forms of consignment note have been drafted with reference to the Convention. Generally, the note is prepared by the consignor (the sender) or his forwarder.  Three copies of the consignment note are required.  One is to be given to the sender; one is to travel with the goods. The third is kept by the carrier.


Consignment Note Issues

Where goods have to be loaded in different vehicles, are of different kinds or are divided into different lots, the sender has the right to require a separate consignment note to be made out for each vehicle used and for each kind or lot of goods.

The absence of a signature does not invalidate the contract.  It may raise issues of proof. A printed or stamped signature suffices.

The Convention provides for certain matters which must be set out in the consignment note. Certain requirements (Article 6(1)) are mandatory whereas others (Article 6(2)), must be set out if they are applicable. They are set out below.


Consignment Note Contents

The consignment note (A 6(1)) must set out the following;

  • the date of the note and place where it is made out;
  • the name and address of the sender;
  • the name and address of the carrier;
  • the place and the date of taking over of the goods;
  • the place designated for delivery;
  • the name and address of the consignee;
  • the common description of the goods and methods of packing;
  • in the case of dangerous goods, their generally recognised description;
  • the number of packages and their special marks and numbers;
  • the gross weight of the goods and their quantity,
  • charges relating to the carriage including customs duty, supplementary and other charges incurred, post-contract and pre-delivery;
  • instructions for customs and other formalities; and
  • a statement that the carriage is subject to the CMR, subject to any clause to the contrary.

If the consignment note does not contain the statement that it is subject to the CMR, the carrier is liable for any expenses, losses and damages sustained, through the omission by the person entitled to dispose of the goods.


Consignment Note Contents II

The CMR (A 6.2) provides matters which must be set out in the consignment note if they apply;

  • a statement that transhipment is not allowed;
  • charges which the sender intends to pay;
  • the amount of cash on delivery charges;
  • a declaration of the value of the goods and the amount representing any special interest;
  • the sender’s instructions to the carrier regarding the insurance of the goods;
  • the agreed time limit within which the carriage is to be carried out;
  • the list of documents handed to the carrier

In addition, the parties may enter on the consignment note, any further details which they deem useful. The failure to mention matters which should be mentioned does not affect the existence or validity of the contract of carriage.  The sender may be liable for the consequences of omissions, as set out below.


Presumption Re State and Condition

The carrier’s obligations apply to the goods after completion of loading by the consignor. An apparent defect in condition may arise from the sender’s unpacking and loading.  The condition of goods includes their fitness for carriage.

It is presumed that the carrier has taken over the goods set out in the consignment note, in the condition and quantity stated in it.  Unless the consignment note contains specific reservations, it is presumed that the goods and their packing appeared to be in good condition when the carrier took them over and that the number of packages, their marks and numbers corresponded with the statement in the consignment note.

The note is ineffective against the carrier unless it has signed it. Unless the consignment note acknowledges receipt of the goods, nothing is presumed in relation to their quantity and condition when received by the carrier. In this case, the claimant must prove that the damage was incurred while the carrier was responsible if he is to recover.

Notwithstanding the absence of a reservation in the consignment note about the quantity or condition of the goods, the carrier may be able to rebut the above presumption. He may be able, for example, to prove that the loss or damage occurred prior to the time when he took them over or assumed responsibility for them.


Apparent Condition of the Goods

The apparent condition of the goods refers to their ostensible or discernible state as ascertained by a reasonable examination.  This is measured with reference to the experience and knowledge of the persons looking at the goods. The apparent condition refers to the totality of the goods, including their packaging and environment.

The statement that the goods were taken in apparently good condition implies that they appeared to be in good order and fit for use, but no more.

The carrier is obliged to check the goods when he takes them over.  The carrier is not obliged to test the strength and quality of the goods.

If the goods are in containers packed by the sender, the carrier may not see the goods at all.  If it acknowledges receipt of the goods within the container, he is likely to be bound by this.  If he refers to the container and no more, his acknowledgement will be limited to it.  The external appearance of the container may reflect the condition of the goods such as, for example, where there is a gauged temperature control.


Extent of Obligations to Inspect

Unless directed by the consignor, there is unlikely to be an obligation to open and examine the containers, where they are received by the driver.  In some cases of carriage by sea, there may be a duty by way of trade custom, to open and inspect certain containers. This principle may apply, by analogy in some sectors in relation to the carriage of goods by road.

The CMR provides that on taking over the goods, the carrier shall check the accuracy of the statements in the consignment note as to the number of packages, their marks, numbers, the apparent condition of the goods and their packaging.

Where the carrier has no reasonable means of checking the accuracy of the statements above, he shall enter his reservations in the consignment note. It shall specify the grounds for any reservations which it makes with regard to the apparent condition of the goods and their packaging.  Such representations do not bind the seller unless it has expressly agreed to be bound by them in the consignment note.

The seller is entitled to require the carrier to check the gross weight of the goods or their quantity unless otherwise expressed.  He may be required the content of the packages to be checked.  The carrier is entitled to claim the cost of such checking.  The results of checking shall be entered on the consignment note.


Inspection Issues

The failure by the carrier to check the goods is not a breach of contract in itself.  However, it is relevant to proof, in cases of loss and damage. The carrier may be liable for defects which he would have observed, if he had made the requisite checks, if he fails to do so, in breach of his general duties as a carrier. The failure to enter a reservation that in fact applies is likely to be a breach of contract.

Reservations in relation to the goods must be made at the point in time when the carrier takes the goods over.  The carrier is generally bound by the reservation. Different views are taken of the effect of a reservation.  It appears that valid reservations change the above presumption so that the claimant must prove that the damage or loss occurred earlier or through other means.  It will depend on the factual circumstances, as to whether the carrier has the reasonable means to verify the position.

Further optional checks may be required by the sender.  They may include checks on the contents, weight and quantity of packages. The sender cannot require the quality to be checked. If after checking, the sender and carrier do not agree on the statements in the note, the carrier may enter a reservation.


Obligations of Consignor / Sender

The sender is responsible for expenses, losses and damage sustained by the carrier by reason of the inaccuracy or inadequacy of statements required to be set out in the consignment note.

The sender must provide the information required for customs and other authorities.  The carrier is under no duty to inquire into the accuracy or adequacy of such documents or information.

The consignment note must list the documents to be handed to the carrier.  The sender is liable for damage caused, by the absence, inadequacy or irregularity of the documents or information.  This may include loss and liability incurred to fiscal or administrative authorities, due to inadequate information.  There is an exception where the loss is attributable to a wrongful act or to neglect on the part of the carrier.

Where goods are of a dangerous nature, the sender must inform the carrier of the nature of the danger and indicate the precautions to be taken.  This may be apparent from the generally recognized description of the goods.  Unless the sender proves that the carrier knew the nature of the goods, the sender may be liable.


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.

Books

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)