Hill & Messent CMR: Contracts for the International Carriage of Goods by Road THIRD EDITION ANDREW MESSENT. MA Cantab

Size: px

Start display at page:

Download "Hill & Messent CMR: Contracts for the International Carriage of Goods by Road THIRD EDITION ANDREW MESSENT. MA Cantab"

Gerard Paul
5 years ago
Views:

1 Hill & Messent CMR: Contracts for the International Carriage of Goods by Road THIRD EDITION By ANDREW MESSENT MA Cantab Partner, Holmes Hardingham, London AND DAVID A. GLASS LL.M. Lecturer in Law, Cardiff Law School LLP LONDON HONGKONG 2000

2 Contents Preface to the Third Edition Preface to the Second Edition Preface to the First Edition Table of Cases Table of European Cases Table of Legislation Table of Conventions etc. Table of Abbreviations v vii ix xvii xxiii xlv xlvii liii Introduction 1 CHAPTER 1 SCOPE OF APPLICATION OF THE CONVENTION 15 The contract of carriage of goods 15 The parties to the contract 20 English case law 24 Burden of proof 32 Continental case law 33 Conclusions 38 Supplementary provisions 39 Voluntary adoption of the Convention 41 CHAPTER 2 COMBINED TRANSPORT 43 Scope 43 The general rule 44 Carriage by container 45 Unloading from the vehicle 47 The proviso to Article 2(1) 50 "during the carriage by the other means of transport" 51 "not caused by an act or omission of the carrier by road" 51 "some event which could only have occurred in the course of and by reason of the carnage by that other means of transport" 53 "conditions prescribed by law" 54 The Channel Tunnel 59 Apportionment of liability 59 "Two separate persons" 60 Direct action against the other carrier 60 Compatibility with Guadalajara Convention 61 xi

3 CHAPTER 3 CARRIER'S LIABILITY FOR THIRD PARTIES 63 "The carrier" 63 "Agents and servants of the carrier" 63 "Any other persons" 64 Nature of the liability 66 Scope of employment 66 CHAPTER 4 DOCUMENTATION 69 The consignment note 69 The need for a consignment note 69 Form and contents of the consignment note 72 Carrier's reservations in the consignment note 79 Defective packing of goods 83 Customs and other formalities 84 CHAPTER 5 THE PERFORMANCE OF THE CARRIAGE 89 The right of disposal 89 Restrictions on the right of disposal 90 Successive disposals 93 Disposal of goods on delivery 93 The right to enforce the contract 95 Damage to the goods 100 Impossibility 100 Impossibility in relation to the carriage 100 Impossibility in relation to delivery of the goods 102 Expenses 103 Unloading and storing the goods 104 Sale of goods by the carrier 105 CHAPTER 6 LIABILITY OF THE CARRIER 107 General 108 Period of carrier's liability 110 Delivery 111 Avoidance of liability by the carrier under Article 17(2) 115 "wrongful act or neglect of the claimant" 115 "the instructions of the claimant given otherwise than as the result of a wrongful act or neglect on the part of the carrier" 118 "inherent vice of the goods" 119 "circumstances which the carrier could not avoid and the consequences of which he was unable to prevent" 121 Condition of the vehicle and the burden of proof 126 Traffic conditions 128 Climatic conditions 130 Theft and robbery 130 Other circumstances 135 Defective condition of the vehicle under Article 17(3) 136 xii

4 Special risks under Article 17(4) 139 (a) "use of open unsheeted vehicles, when their use has been expressly agreed and specified in the consignment note" 139 (b) "the lack of, or defective condition of packing in the case of goods which, by their nature, are liable to wastage or to be damaged when not packed or when not properly packed" 141 (c) "handling, loading, stowage or unloading of the goods by the sender, the consignee or persons acting on behalf of the sender or the consignee" 145 Who has the duty to perform these operations? 147 Notwithstanding that the sender performs the operations of loading etc., is the carrier under a duty to take steps where these operations are obviously defectively performed? 149 Is an obligation imposed on the carrier to check the operations performed by the other party? 151 What proof is required of the carrier before he can obtain the benefit of the presumption in Article 18(2)? 154 What kind of proof is required to defeat the presumption? 156 (d) "the nature of certain kinds of goods which particularly exposes them to total or partial loss or to damage" 158 (e) "insufficiency or inadequacy of marks or numbers on the packages" 164 (f) "the carriage of livestock" 165 Apportionment of liability 166 Burden of proof 167 Special provisions 169 CHAPTER 7 DELAY, NON-DELIVERY AND CASH ON DELIVERY 171 Delay 171 Agreed time limit 171 No agreed time limit 173 Defences 174 Reservations in cases of delay 175 Non-delivery of goods 176 Goods treated as lost 176 Defences 178 The claimant's right of election 178 National law 180 Cash on delivery 182 Scope 183 Measure of damages 184 CHAPTER 8 DANGEROUS GOODS 187 Goods of a dangerous nature 187 Other relevant provisions of CMR 189 Rights and obligations under Article CHAPTER 9 COMPENSATION 193 The basis of calculation 194 xiii

5 The limit of liability Attempts to evade the limit 199 The calculation of the limit 200 Other expenses 201 The Buchanan case 202 Other case law 205 Delay 208 Damage 210 Additional compensation 212 The scope of recovery under Articles 23(5) and Interest and conversion rate 216 Extra-contractual claims 218 Wilful misconduct 221 Wilful misconduct or equivalent default 223 Equivalent default 232 Remoteness of damage under Article CHAPTER 10 CLAIMS AND ACTIONS 235 Reservations in respect of loss, damage or delay 235 Form of reservations 238 Time for reservations 240 Facilities for checking 240 Practice 241 Total loss 241 Jurisdiction 241 General 242 Scope 243 The appropriate forum: agreed jurisdiction 244 Jurisdiction under Article 31(l)(a) or (b) 245 Potential duplication of actions 247 The enforcement of judgments 249 Enforceable judgments 250 Security for costs 252 Limitation of actions 252 (a) Scope of operation 253 (b) Period of limitation 255 Partial loss, damage or delay 256 Total loss 257 Other cases 260 (c) Suspension of period of limitation 262 Scope 263 Form of claim 264 By whom and against whom a claim may be made 266 Time for written claim 270 Period of suspension 271 Onus of proof 274 Further claims 275 National law 275 Counterclaims and rights of set-off 277 Arbitration 277 xiv

6 CHAPTER 11 SUCCESSIVE CARRIAGE 281 Scope 281 A single contract 282 Groupage shipments 283 The Ulster-Swift case 284 The need for a consignment note 287 Trailer operators 298 The effect of Article Other documentation in relation to successive carriage 301 Rights of action against successive carriers 303 The last carrier 303 The carrier responsible for the loss, damage or delay 305 Concurrent actions and jurisdiction 305 Nature and scope of liability 306 Counterclaims and rights of set-off 307 Contribution between carriers 308 Scope 308 Principles of apportionment 312 Shared responsibility 314 Unascertained responsibility 315 Insolvency of a carrier 316 Calculation of contributions under Articles 37 and Example A 317 Example B 317 Procedural aspects of claims between carriers 319 Effect of judgment against claimant carrier 319 Jurisdiction 321 The enforcement of judgments 323 The limitation of actions 324 Alternative arrangements between carriers 326 CHAPTER 12 DEROGATION FROM THE CONVENTION 329 APPENDIX A Carriage of Goods by Road Act APPENDIX B The French text of the Convention 349 APPENDIX C (a) IRU form of CMR Consignment Note 365 (b) FTA/RHA/SITPRO form of CMR Consignment Note 366 APPENDIX D Lloyd's Goods in Transit (CMR) Policy 367 INDEX 371 xv

CONVENTION ON THE CONTRACT FOR THE INTERNATIONAL CARRIAGE OF GOODS BY ROAD (CMR) (GENEVA, 19 MAY

CONVENTION ON THE CONTRACT FOR THE INTERNATIONAL CARRIAGE OF GOODS BY ROAD (CMR) (GENEVA, 19 MAY 1956) *************************************************************************** PREAMBLE ======== / [PREAMBLE]