Here are the main aspects of international carriage of goods by road. Sender’s rights, consignee’s rights, carrier’s responsibilities, limitations.
The Geneva Convention regulates international carriage of goods by road. The main points of the convention are the goods and the places they are carried from and received. Domicile and citizenship are not relevant, whether it be the goods owner’s, the consignee, or any of the parties of the international carriage contract. What is relevant is that the goods are carried on vehicles by road and that the place of reception and delivery of the goods are located in two different States, at least one of them being a Geneva Convention ratifying State.
The two main elements of International carriage of goods by road contract. CMR consignment note and carrier’s liability
art. 9 of the Geneva Convention states, unless evidence to the contrary exists, that the consignment note attests to the contract’s conditions and to the reception of the goods by the carrier.
Content of the CMR note
Unless the consignment note contains any concerns substantiated by the carrier, it is to be presumed that at the time of reception the merchandise and its packaging appeared to be in good state, and that the number of items, their number and counterfoils corresponded to those indicated in the CMR note. The very use of the verb ‘presume’, however, paves the way to all kinds of interpretations regarding the liability for the possible deterioration of the goods during transport or failed delivery.
How to complete a CMR note
There must be three original copies of the consignment note, each signed by the sender and the carrier.
- the first copy is for the sender;
- the second copy travels with the goods;
- the third copy is kept by the carrier upon delivery of the goods.
Information included in the CMR note:
- date and place at which it’ has been completed;
- name and address of the sender;
- name and address of the carrier;
- date and place at which the goods have been received and are to be delivered;
- name and address of the consignee;
- a current denomination of the type of goods and their packaging, and for dangerous goods, their generally recognised denomination;
- number of items, any particular counterfoil and their numbers;
- the gross weight of the goods or their quantity otherwise expressed;
- any expenses for the transport;
- instructions concerning Customs procedures;
- statement regarding the prevalent value of the provisions of the Geneva convention, despite any clause indicating otherwise.
The consignment note can contain other optional indications, stated by art. 6.2 of the Convention, such as:
- a statement that trans-shipment is not allowed;
- charges which the sender undertakes to pay;
- the agreed time limit within which the carriage is to be carried out.
Carriers take responsibility for the transport of the goods and merchandise from one place of reception until the place of delivery, even by availing themselves of third subjects (sub-contracting).
- the carrier is liable in case of total or partial loss of goods or deterioration occurred between the time of reception and the time of delivery of the goods, and for the delay in delivery.
- the carrier is exonerated by liability if the loss, deterioration or delay are the fault of the person entitled, in case of order of the entitled party not dependent on fault of the carrier, in case of defect proper to the goods, lack of packaging, and completely unavoidable facts or circumstances which the carrier could not avoid and the consequences of which could not be remedied by the carrier.
Special risks stated by the Convention that exonerate the carrier from his responsibilities
Article 18 of the CMR Convention indicates the carrier’s responsibilities. The Convention, however, also identifies special risks that lower or exonerate the carrier’s responsibility to transfer the goods as whole. This happens in case of:
- use of open unsheeted vehicles, when their use has been expressly agreed and specified in the consignment note;
- 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;
- handling, loading, stowage or unloading of the goods by the sender, the consignee or person acting on behalf of the sender or the consignee;
- the nature of certain kinds of goods which particularly exposes them to total or partial loss or to damage, especially through breakage, rust, decay, desiccation, leakage, normal wastage, or the action of moth or vermin;
- insufficiency or inadequacy of marks or numbers on the packages;
- the carriage of livestock.
Where the carrier is not under any liability in respect of some of the factors causing the loss, damage or delay, he shall only be liable to the extent that those factors have contributed to the loss, damage or delay.
Sender’s liability, carrier’s dole, consignee’s rights, sender’s compensation, limitation of rights
Senders have responsibilities within the international carriage of goods, too. In fact, the sender shall be liable to the carrier for damage to persons, equipment or other goods, and for any expenses due to defective packing of the goods, unless the defect was apparent or known to the carrier at the time when he took over the goods and he made no reservations concerning it in the CMR note. Moreover, the sender has the right to dispose of the goods, in particular by asking the carrier to stop the goods in transit, to change the place at which delivery is to take place or to deliver the goods to a consignee other than the consignee indicated in the consignment note.
Intentional negligence of the carrier according to the Civil Section of the Cassation Court
The Civil Section of the Cassation Court, with statement 29/03/1985, n. 2204 regarding international carriage of goods by road, has requested, in order to ascertain the unlimited liability of the carrier, a carrier’s negligence is identified and that in accordance with the law of the court or tribunal seised of the case, is considered as equivalent to wilful misconduct. Consequently, according to the principle whereby, regarding contractual responsibility, the juridical consequences of gross negligence are treated as those of wilful misconduct, any limitation to the carrier’s responsibility is to be excluded in case of gross negligence of the carrier or any subject acting on his behalf. Gross negligence can be defined as an extraordinary and inexcusable imprudence and omitted observation of minimum diligence.
Consignees rights towards the carrier
The Court of Cassation has expressed itself several times regarding responsibilities within the international transport of goods. In numerous judgments it stated that in case of failed or partial delivery or deterioration of the merchandise, the right to file a request of compensation against the carrier is the person entitled to the delivery – that is to say, the consignee. The consignee, however, must express the will to adhere to the transportation contract by asking the carrier to grant the delivery or the release of the goods once it reaches its destination, or in any case once the time limit for the delivery has expired and in case of partial delivery of the goods.
What happens when the sender requests compensation for damages
The sender asking the carrier for compensation for the damage suffered as a consequence of the loss of transported goods has the only burden to prove the loss of the merchandise and its value. However, they are not requested to prove to have compensated the consignee for the failed delivery. In fact, the burden to prove what prevented them from delivering the goods is upon the carrier, along with the burden to prove that the sender had already received the price of the lost merchandise and that the consignee has not asked them for restitution.
Time limitation of rights towards the carrier
The period of limitation for the consignee to take out an action arising out of carriage under the Convention is one year. However, in case of wilful misconduct, or such considered as equivalent to wilful misconduct, the period of limitation is three years. A written claim suspends the period of limitation until the date the carrier rejects the claim in writing and returns the documents attached.