Disposal in Unanticipated Circumstances
The carrier may have a power of sale under local or trade custom where performance or delivery have become impossible in accordance with the terms of the contract. There is a more limited power of sale in the CMR.
If the goods are perishable and their condition warrants such a course or where the storage expenses would be out of proportion to the value of the goods, the carrier is entitled to sell the goods without awaiting instructions from the person who is entitled to dispose of them.
In other instances, instructions must be sought first. If they have not been received within a reasonable time, the carrier may sell the goods. The proceeds after deduction of expenses must be remitted to the person entitled to dispose of the goods. If there is a shortfall, the carrier is entitled to recover the difference.
The costs of obtaining and putting instructions into effect may be recovered. Expenses incurred in acting in the best interests of the person entitled to the goods are recoverable.
The carrier is liable for the failure to perform its obligations. The damages are assessed under national law, and the CMR and its limitations of liability will not apply.
The CMR provides that if the goods are unloaded and held by the carrier as bailee or deposited with the third party, the costs, charges and expenses are chargeable against the goods. The consignor or consignee, as the case may be, may dispose of the good, only if he indemnifies the carrier against all expenses, loss and damage incurred in carrying out the instructions.
The delivery marks the end of the carrier’s responsibilities. Delivery must be made to the correct person and at the correct place. Delivery of control of the goods is sufficient. There may be delivery, notwithstanding that the consignee has not received notice of arrival of the goods and has not had the chance to inspect them.
Delivery for the purpose of the contract of carriage differs to that for the contract of sale.The contract for carriage is separate to the contract for the sale of the goods. The consignee’s liability to pay charges is not discharged by defects or shortages in the goods.
There may be delivery for carriage purposes, notwithstanding that the goods are defective and that there may be right to refuse delivery for the purpose of the sale contract of the Sale of Goods Act.
Delivery may occur before arrival at the appointed destination if the goods are put under the control of the consignee before that time. Delivery implies that the goods are put under the control and possession of the consignee. If the delivery has not been possible in accordance with the terms of the contracts, the above and below provisions may apply.
Place of Delivery
The consignment note states the place designated for delivery. It may be otherwise agreed in the contract of carriage. The possibility of disposal of the goods in certain limited circumstances at an alternative location or to an alternative consignee is set out above.
If the goods are to be brought to a specified place where the consignee has its place of business, there is an implied duty at common law to deliver to that place. If the designation is the carrier’s place of business, the delivery may occur when they are made available for collection.
Notice of the arrival of the goods must be given. The carrier may cease to be liable to carry and commence to be liable as a bailee. Different terms and conditions may apply to liability as a bailee than as a carrier.
The consignment note must name the consignee. The consignee may require delivery of the goods against a receipt. There is no equivalent of the bill of lading in maritime transport. The consignment note is not a document of title. The consignee must identify itself as the person entitled.
If the goods are delivered to a person who has no right to receive them to the carrier’s knowledge, the carrier will be liable for an act of willful misconduct and deprived of certain defences which would otherwise be available.
The carrier may be in breach of contract if it delivers them in circumstances where he should have known that the person concerned is not the correct consignee or person entitled to the goods. Liability is based on negligence under the Convention as well as at common law.
Delivery to the correct address may satisfy the obligation at common law. The CMR appears to impose a stricter obligation to deliver to the person who is entitled to the goods. Delivery does not occur until this point. The liability is not absolute, but it is a higher standard than the ordinary standards of negligence. Utmost care is required.
Mode of Delivery
Delivery may take place in accordance with the customs of the trade or the terms of the contract. The CMR provides that after the arrival of the goods at the place designated for delivery, the consignee shall be entitled to require the carrier to deliver to him against the receipt, the second copy of the consignment note and the goods. This second copy accompanies the goods.
The consignee who avails himself of the above right must pay the charges shown to be due on the consignment note. In the event of a dispute on the matter, the carrier is not required to deliver the goods, unless security is furnished by the consignee.
The contract should express who is to unload. There may be local custom and practice which applies. Express or implied terms of the contract may govern the position.
If the consignee does not take immediate delivery in circumstances where he is justified in so doing, the carrier retains responsibility until the date of later delivery. If the goods are to be kept at the place of arrival for collection by the consignee, and if it is impossible for them to be collected, the above provisions as to impossibility may apply.
The carrier may remain liable as such until a reasonable time for collection has expired. In the absence of an agreement to the contrary, the carrier must contact the consignee, if he is able to do so.
The contract may provide for delivery, without the goods being taken physically into the control and custody of the consignee. In this case, the contract governs the position. There may be an implied or customary position.
The delivery will generally require the consent and cooperation of the consignee. Where, without fault on the carrier’s part, he is unable to contact the consignee at his address, he is entitled to unload the goods at that place, and this is deemed to be delivery.
The above provisions apply if the circumstances prevent the delivery of the goods after their arrival at the place designated for delivery. One option is that the carrier may immediately unload the goods for the account of the person entitled to dispose of them and the carriage thereby ends. Another is that the carrier holds the goods for the person entitled or entrusts them to a third party. In that case, his duty is only to use reasonable care in the choice of the third person.
If the consignee wrongfully refuses to accept delivery, the above provisions as to the impossibility of delivery may apply. What constitutes delivery will be determined by the contract. This will generally be or include a tender of delivery by the carrier.
Where goods are delivered damaged, delivery may become impossible because of the consignee’s, refusal to accept. The consignee may take delivery of the goods and hold them on behalf of the seller, where there is an alleged breach. He may return the goods and refuse to accept them. In this case, the carrier remains liable as a carrier under the CMR.
Carrier Required to Collect Monies
The contract may require the collection of monies or funds by the carrier. The consignee is obliged to pay charges in accordance with the consignment note. Delivery may be prevented if payment is not made. The provision applicable to prevention apply.
The carrier may be liable if he delivers the goods, without collection of monies where there is an obligation to collect cash on delivery. He is liable to the consignor / sender.
The carrier’s liability, where he fails to collect monies due on delivery is, to pay compensation up to the amount of the charge.
The obligation applies only, where the carrier is obliged to collect the monies. It does not apply where another entity is obliged to collect the funds.
The carrier is not entitled to avail himself of the provisions of the CMR which exclude or limit liability, in the case of wilful default. National domestic law may limit liability to the amount of loss proved to be actually incurred. The carrier’s liability does not prejudice the consignor’s right of action against the consignee.
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)