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Britain in the EEC The implications of CAIR(1)
Page 83
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THE "Convention Relative au Contrat de Transport International de Marchandises par Route" (CMR) is not limited to Common Market Countries, but it applies in the nine EEC countries, including Great Britain, Mr A. E. Donald, a director of Ernest A. Notcutt and Company, the prominent road transport insurers, felt the CMR an appropriate subject for discussion at a recent Guardian Business Services seminar in London.
Coach operators and own-account operators who never carry goods for hire or reward are not concerned with CMR. However, an own-account operator who uses a haulier to collect and deliver goods or who brings back a "paid" return load from Europe is concerned.
English version The Convention was given the force of law in this country by the Carriage of Goods by Road Act 1965, which came into operation on October 19 1967. This Act contains a complete English language version of the Convention. It may be obtained from HMSO.
Negligence — in relation to the responsibilities of the carrier — is defined differently in the various countries concerned, so an international convention could not be based on "liability for negligence". Hence, the Convention declares that the carrier accepts "absolute liability" if the goods carried are lost or damaged (subject to certain limitations and escape clauses).
This qualified "absolute liability" can, of course, be insured; to understand what is involved a look at the Convention is necessary.
Chapter 1 says that CMR applies 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 are situated in two different countries, of which at least one is a contracting country, regardless of the place of residence and the nationalities of the parties. Vehicles are defined as motor vehicles, articulated vehicles, semi-trailers and trailers. The Convention does not apply to postal work, funerals, or removals.
Mr Donald said it was his view that container traffic which crossed a frontier other than on a road vehicle was not, ipso facto, subject to CMR by application of law. The Convention does not apply to a contract for carriage between the UK and Northern Ireland or between the UK and Eire but a contract for carriage by road between, say, West Germany and Eire via England would be subject to CMR for the whole journey it' a claim is lodged in, say, England.
Article 2 confirms the application of CMR to the whole journey even if the vehicle carrying the goods is carried over part of the journey by sea, rail, inland waterway or air. But if, during this stage
of the journey, a loss occurs not by any act or omission on the part of the carrier, but by an event which could occur only
by reason of this other means of transport, carrier's liability is defined by the law relevant to the mode.
Chapter II says that the carrier is responsible for the acts and omissions of his agents, servants and sub-contractors.
Chapter III stresses that there should be a CMR consignment note. However, said Mr Donald. the absence, irregularity or loss of the consignment note does not affect the validity of the contract which remains subject to CMR.
The carrier's liability for loss or damage is a qualified and quantified absolute liability. The carrier is liable for the total or partial loss of the goods and for damage occurring thereto from collection to delivery, and for delay in delivery. If goods suffer damage through delay, compensation cannot exceed the car:iage charges.
On "absolute liability" Mr Donald said there are no imaginary lines of demarcation, e.g. "loading" or "discharge".
Escape clauses free the carrier from liability if the loss is caused by the wrongful act or neglect of the claimant; by claimant's instructions otherwise than as the result of a wrongful act or neglect on the part of the carrier; by inherent vice of the goods; by the use of open unsheeted vehicles when their use was expressly agreed and noted in the consignment note; by lack of or defective condition of packing where this is a contributory factor; by handling, loading, stowage or unloading of the goods by the sender, the consignee or by persons acting on their behalf; by the nature of certain kinds of goods particularly prone to breakage, rust, dessication, leakage, normal wastage or action of moth or vermin; by insufficiency or inadequacy of marks or numbers on packages.
The carrier of livestock is relieved of liability if loss or damage arises from carriage, but he must prove "that all steps normally incumbent on him in the circumstances were taken and that he complied with any special instructions issued to him". A similar qualification applies to refrigerated and insulated goods. A potentially useful defence to a claim is provided by Article 17, para. 2: "The carrier shall however be relieved of liability if the loss damage or delay was caused. . . through circumstances which the carrier could not avoid and the consequences of which he was unable to prevent". The carrier is liable for failure to collect cash on delivery charges (and he cannot insure against this failure!) Compensation is calculated by reference to the value of the goods at the place and time at which they were accepted for carriage. The value of the goods is fixed according to the commodity exchange price, the current market price, or by reference to the normal value of goods of the same kind and quality. Compensation is tied to the value of gold which, translated, means between £3500 and £4000 per ton.
Refunds Additionally, the carrier is reponsible, under the quantum of liability rules, for the refund of carriage charges, Customs duties and other charges related to the carriage in proportion to the loss. Article 23, para 4 provides protection against claims for indirect or consequential loss by stating, firmly, that "no further damages shall be payable".
A claimant is entitled to claim and the carrier must pay interest on the amount of any compensation payable at the rate of 5 per cent from the written submission of claim. A sender may, on payment of a surcharge, declare a value above the £3500-£4000 limit per ton. A sender may also, on payment of a surcharge, declare the amount of a special interest in a delivery date.
If carriage is performed by successive road carriers, each of them is responsible for the performance of the whole operation, by reason of the successive carrier accepting the goods and the consignment note.
Legal proceedings may be brought in the courts of the country (a) where the defendant is resident or (b) where the original contract was made or (c) where the goods were taken over by the defendant or (d) where the goods have been or were to have been delivered.
Legal proceedings may only be brought (a) against the first carrier or (b) Against the last carrier or (c) against the carrier who was performing that portion of the carriage during which loss or damage occurred or (d) against several of these carriers at the same time. A carrier who has paid compensation is entitled to recover this from other carriers in the chain to an agreed formula.