CMR: Contracts for the International Carriage of Goods by Road

Andrew Messent, David Glass

• Publisher: Informa Law from Routledge
• Year: 2017
• ISBN:
  9781317424697
• Edition: 4
• Topic: Law
• Subtopic: Maritime Law
• Index: Law

Now in its fourth edition, this hallmark text provides a comprehensive, article-by-article guide to the workings of the CMR Convention, as incorporated into English Law by the Carriage of Goods by Road Act 1965.

This new edition is fully up to date with all major UK case law, plus major developments in the interpretation of the Convention in the case law of other Contracting States. Furthermore, the book includes expert guidance on the amendments introduced by the additional protocol concerning the electronic consignment note of 2008. The relationship between CMR and potentially conflicting legislation, in particular the Judgments Regulation of 2001 and the Judgments Regulation (recast) of 2012, are also usefully examined. Praised as well-written and extremely accessible, Messent and Glass offer a level of expert detail and referencing that cannot be found elsewhere.

This work is an invaluable reference tool that can be used by the busy legal practitioner, and by other road haulage industry professionals, in any contracting state, to solve the issues that confront them in daily practice. It is also an indispensable guide for academics and students of the international carriage of goods by road.

Chapter 1
Scope of application of the Convention

1.1 The scope of the Convention’s application is governed by its Chapter I, comprising Articles 1 and 2. Article 2, however, is concerned with carriage involving combined transport, namely where for part of the journey the vehicle is carried by sea, rail, inland waterway or air, and is considered in detail in the next chapter. The present chapter is therefore concerned with Article 1, which lays down the general prerequisites for the application of the Convention. The principal provision is Article 1(1), which provides as follows:

This Convention shall apply to every contract for the carriage of goods by road in vehicles for reward, when the place of taking over the goods and the place designated for delivery, as specified in the contract, are situated in two different countries, of which at least one is a Contracting country,¹ irrespective of the place of residence and the nationality of the parties.

The contract of carriage of goods

1.2 It will be noted that Article 1(1) applies the Convention to “every contract for the carriage of goods”. Likewise, the English title of the Convention is “Convention on the Contract for the International Carriage of Goods by Road”. The significance of this somewhat awkward phraseology is crucial to an understanding of the scope of the Convention, since it makes it plain that what is covered is not the international carriage of goods by road as such, but only a contract for such carriage.² Thus, by way of example, if goods are carried by road from London to Dover under one contract, shipped across the Channel under another contract, then carried by road from Calais to Paris under a third contract, this is in one sense an international carriage of goods by road. It would not, however, be governed by the Convention, since it is not within the wording of Article 1(1): it is not a “contract for carriage of goods by road… when the place of taking over the goods and the place designated for delivery are situated in two different countries”.³ In order to comply with this requirement it would be necessary for there to be one contract governing the entire carriage,⁴ or at least one contract which involved carriage by road between two countries. So, to vary the facts of the above example, if the first contract was for the carriage of the goods from London to a depot on the outskirts of Calais, the segments either side of the Channel being carried out by road, and the second carriage was for onward by road to Paris, the first contract would be subject to the Convention,⁵ but the second would not since it has no international content.⁶ The emphasis placed on the contract made between the parties is also illustrated by a decision of the French Supreme Court where the contract was for carriage between France and Tunisia. Prior to leaving France the sender ordered the goods to be returned to their place of loading and they were damaged in the course of that journey. It was held that CMR applied to govern the liability for this damage, rejecting the idea that there had been a novation of the contract. The sender was simply exercising the right of disposal granted by Article 12 of CMR,⁷ so the fact that the goods never crossed the border made no difference.⁸

In the same way, the contract for the international carriage by road may be part of a wider transaction, parts of which fall outside the scope of the Convention. Thus in the case of Quantum Corporation v Plane Trucking Ltd., the claim concerned damage to goods in the course of an international carriage by road, but that movement was part of a wider contract of carriage from Singapore to Dublin under the terms of an air waybill. At first instance,⁹ Tomlinson, J., was of the view that, subject to the possible application of Article 2, the Convention had to apply to whole of the movement or to none of it, and since the goods were taken over for carriage by air in Singapore, the CMR Convention could not apply to the road movement from Paris to Dublin. The decision was reversed on appeal.¹⁰ In circumstances in which the contract of carriage includes an international road movement, the CMR Convention will apply to that part of the movement, regardless of whether the carrier was obliged to carry by road for that part of the carriage, or whether it was done pursuant to a contractual liberty, as was the position in that case.¹¹

So too in Datec Electronic Holdings Ltd. v United Parcels Service Ltd.,¹² where goods were carried partly by air from England to Germany, then by road from Germany to the Netherlands, so on the face of it the road element was subject to the Convention, following the Quantum Corporation case above. However, in this case the defendant carriers unsuccessfully sought to argue that there was in fact no contact of carriage at all to which the Convention could apply. Since the goods submitted for carriage breached the terms of its standard conditions whereby it was specified that goods should not exceed a particular value, it was argued that there was no contact of carriage, but only one of bailment, so that the CMR Convention did not apply and the carrier was therefore entitled to rely on its standard trading terms to limit its liability. As indicated above, it was held that there was a contact of a carriage to which the Convention applied. The carrier’s terms did not state that if non-conforming goods were tendered for carriage, no contract would result. Instead, the carrier was given the option of refusing to carry the goods or suspending the carriage, which suggested rather the opposite. Further, if the carriage was performed without the non-conformity coming to light, then clearly the freight charges were payable.

1.3 On the Continent, a distinction has been drawn between a contract of carriage and a contract of hire which, falling outside Article 1, is not governed by the Convention.¹³ This distinction does not relate to the simple lending of a vehicle by an owner to another,¹⁴ but rather to where a driver is also supplied with the vehicle. The distinction is not made by the Convention itself,¹⁵ but it is always important to consider whether a contract in a particular case can truly be defined as being one of carriage.¹⁶ While CMR emphasises an agreement for carriage between certain points, this is not, in this context, the central factor. Rather, the fact that international carriage has taken place which has been agreed to by the lender creates the possibility of responsibility under CMR.¹⁷ The crucial issue is whether there is an agreement to carry.¹⁸

1.4 In France there has been considerable development of this issue, where the criteria for the distinction which are employed for the purposes of domestic carriage¹⁹ are also considered to be relevant²⁰ for the purposes of CMR.²¹ There is a presumption in favour of carriage in cases of doubt, since a contract of hire is considered to be the exception.²² The courts look to the nature and use of the documentation²³ and the remuneration,²⁴ among other factors.²⁵ A further factor is whether the lender has insured his liability for the goods.²⁶ Naturally, in the context of CMR, the issue and contents of the consignment note will be important, although not conclusive. Thus the fact that the lender is mentioned as carrier in the consignment note does not prohibit him from showing that he is not a carrier.²⁷ Nevertheless, the fact that another party is named as carrier will help to support a claim that the owner is only a hirer.²⁸ In essence, the courts look to see who is truly in control of the transport operations to determine whether, as between two parties, one of them is lender or carrier.²⁹ In Germany, factors such as the nature of the remuneration and the degree of control over the transport operations are similarly taken into account with a view to determining which party had the actual discretionary and economic use of the vehicle.³⁰

1.5 In England, the issue is likely to be determined by a consideration of whether the lender of a vehicle with a driver has become a bailee of the goods. As long as there is no transfer of the lender’s servant so as to affect the question of vicarious liability, the control that the servant has over the vehicle and, in consequence, the goods in it or drawn by it will normally be sufficient to found responsibility as possessor of the goods in the lender.³¹ It is possible that the degree of control that the hirer has over the movement of the goods is such that, although there is no transfer of the servant, the hirer rather than the lender is in possession of the vehicle and, in consequence, in possession of the goods.³² In general, however, a temporary transfer of the servant will need to be shown. The issue therefore is not likely to be viewed in identical terms in England as on the continent, given the different juridical structure that underpins the law of carriage.³³ The same analysis may also apply to the even more rarefied question of whether a lender of a tractor with driver to pull the trailer of the customer is hire or carriage. On the Continent, it seems possible to say that the factors discussed above will apply equally. So, for example, in Belgium, a tractor operator who was instructed to pull a semi-trailer, load a container, drive from Antwerp to Boussois in France, where a consignment of glass was to be loaded into the container, and then forward the container and its load to Antwerp was held to be a CMR carrier and not merely a haulier.³⁴

1.6 This last issue is often linked with the question as to what constitutes goods for the purposes of Article 1. The Convention provides no definition, but Loewe³⁵ has put the position as follows:

The term “marchandises” in the French text should not be interpreted narrowly as meaning goods which are carried from one place to another for the purposes of sale. If that had been the author’s intention, the exceptions provided for in Article 1, paragraph 4,³⁶ would not have been necessary, since the operations mentioned in that paragraph do not involve goods in the sense which has just been indicated. The term should rather be construed as meaning tangible goods in general. However, a passenger’s luggage is not “marchandises”.³⁷

Continental cases have displayed a difference of opinion as to whether a trailer can be goods distinct from the goods contained within it. So long as the contract can be viewed as one of carriage, as opposed to hire, there does not seem to be any reason why even a mode of transport cannot be “goods” for the purposes of CMR.³⁸

1.7 Another issue in relation to the scope of the Convention arose before the Court of Appeal in the case of Gefco U. K. Ltd. v Mason (No.1).³⁹ Under a long-term contract (“the umbrella contract”), Mason had sub-contracted the carriage of Marks & Spencer goods to Gefco. The umbrella contract contained various terms as to such matters as reporting and, in particular, the time within which delivery of the individual consignments was to be effected. As a result of alleged breaches by Gefco, the contract with Marks & Spencer was lost. Gefco claimed outstanding freight from Mason, and Mason counterclaimed damages for loss of profit in relation to the umbrella contract.

1.8 It was alleged by Gefco that the umbrella contract was subject to the CMR Convention,⁴⁰ whereas Mason argued that, although the individual movements were subject to the Convention, the umbrella contract itself was not. In particular, it was argued that the requirement for a consignment note could not be applied to a long-term contract for multiple movements of unascertained goods.

1.9 On the hearing of a preliminary issue as to whether the Convention applied to the umbrella contract, it was held by the Court of Appeal that it did.⁴¹ Although it was argued for Mason that Articles 4 and 6, which require the insertion of various details into the consignment note, could not be complied with in the context of the umbrella contract...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• CONTENTS
• Preface
• Table of cases
• Table of European cases
• Table of legislation
• Table of conventions etc.
• Table of abbreviations
• INTRODUCTION
• CHAPTER 1 SCOPE OF APPLICATION OF THE CONVENTION
• CHAPTER 2 COMBINED TRANSPORT
• CHAPTER 3 CARRIER’S LIABILITY FOR THIRD PARTIES
• CHAPTER 4 DOCUMENTATION
• CHAPTER 5 THE PERFORMANCE OF THE CARRIAGE
• CHAPTER 6 LIABILITY OF THE CARRIER
• CHAPTER 7 DELAY, NON-DELIVERY AND CASH ON DELIVERY
• CHAPTER 8 DANGEROUS GOODS
• CHAPTER 9 COMPENSATION
• CHAPTER 10 CLAIMS AND ACTIONS
• CHAPTER 11 SUCCESSIVE CARRIAGE
• CHAPTER 12 DEROGATION FROM THE CONVENTION
• APPENDIX A CARRIAGE OF GOODS BY ROAD ACT 1965
• APPENDIX B FRENCH TEXT OF THE CONVENTION ON THE CONTRACT FOR THE INTERNATIONAL CARRIAGE OF GOODS BY ROAD
• APPENDIX C
• Index