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CMR 60th Anniversary

Art1. CMR

Tom TurnerHill Dickinson LLP

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CMR Convention

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When does it apply? – Art.1

• “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 irrespective of the place of residence and the nationality of the parties.”

• Applies compulsorily

• Contracting out (art.40/41)

“every contract”• Note the English translation is “Convention on the Contract

for the International Carriage of Goods by Road”

• The convention covers the CONTRACT for the carriage of goods by road, not the international carriage of goods.

• For the convention to apply, there must be a contract for carriage of goods by road between two countries (of which one is a CMR contracting country).

• GB/Northern Ireland to Republic of Ireland – does not apply unless by contract

• What is not covered? Separate non international contracts.– A contract for London to Dover (road)

– A contract for Channel crossing

– A contract for Calais to Paris (Road)

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“contract”

• Umbrella contract? Gefco v Mason– CMR applies to each individual contract

• CMR note? Art 4

Datec Electronic Holdings Ltd v UPS Ltd [2007] UKHL 23• Facts of the case

– Framework (umbrella) agreement for carriage service by UPS to Datec.

– Book via computer tick box for TCs

– “not exceed local currency equivalent of USD50,000”

– UPS unaware of the value – no contract of carriage

– Court held that there was a contract for carriage and it was subject to CMR.

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Mutli-modal

Quantum Corporation Ltd v Plane Trucking Ltd and Air France(Court of Appeal)

• Disc drives - US$1.5m

• Singapore - Paris – Dublin

• Carriers = Air France

• Air waybill issued for whole movement

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Plane Trucking

Plane Trucking

Air France

SINGAPORE

PARIS

DUBLIN

ROUTE TAKEN

About the Case• Plane’s employees stole the cargo during road carriage in England.

• Plane admitted liability but in liquidation - no insurance cover.

• Air France accepted liability but limited to 17 SDR/kg (General Conditions - air waybill).

• Quantum said it should be the CMR Convention – wilful misconduct -unlimited recovery.

• Issue for Court - what regime applied Paris to Dublin.

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Plane Trucking

Air France

WARSAW

AIR FRANCE Ts & Cs

AIR FRANCE Ts & Cs

CMR

CMR

Plane Trucking SINGAPORE

PARIS

DUBLIN

Liability regime

Summary

• If CMR applies to a particular movement, it will apply even if that movement is part of a larger, multi-modal movement

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ConclusionCMR applies to the contractCMR applies to “every contract”CMR can apply in multi-modal movements

CMR 60th Anniversary

Art 17.2 CMR: The liability of the carrier

Tom TurnerHill Dickinson LLP

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Defences under CMR – Art. 17.2 • Art. 17.2 The carrier shall be relieved of liability if the loss, damage or

delay was caused:

– by the wrongful act or neglect of the Claimant; or

– by the instructions of the Claimant not arising out of the wrongful act or neglect of the Carrier; or

– by inherent vice of the goods; or

– Through circumstances which the carrier could not avoid AND the consequences of which he was unable to prevent

The burden of proof

• Art 18.1 The burden of proving that loss, damage or delay was due to one of the specified in article 17, paragraph 2, shall rest upon the carrier.

• Legal burden: is on the carrier

• Evidential burden: In England “balance of probabilities”.

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Wrongful Act of the Claimant Art. 17.2• Examples:

– failure to supply important information– failure to provide proper or necessary documents– failure to provide proper instructions– loss during loading or unloading by Claimant

• Must be “wrongful”.• Must be a causal connection between act or neglect and

the loss or damage

Instructions of the ClaimantArt. 17.2

• Examples: – carrying temperature, delivery instructions/address, impossibility of

performance

• But must not be as a result of the wrongful act or neglect of the carrier.

• Must be causal connection between instructions and loss or damage or delay

• If instructions unclear then carrier has a duty to seek clarification

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Inherent Vice –Art. 17.2

• Latent defect in the goods resulting in damage or destruction during carriage (close to Art 17.4(d))

• Examples:-

– faulty manufacturing process, spontaneous combustion during ordinary carriage conditions, or moisture content causing condensation damage

• What matters is not fitness for travel or

• fitness for use/consumption

• But.. Fitness for use/consumption after travel.

• (Assuming the travel conditions provided by the carrier are in order.)– Rust in uncovered vehicles.

– Vice? (yes) Inherent? (depends on instructions)

– Vice is relative to circumstances; such as atmosphere (iewhat can be expected in normal course of transit).

• TM Noten BV v Harding CoA 21 June 1990– Damage to gloves. Moisture in gloves, condensed to

form water droplets from roof. Yes, gloves did carry the inherent vice.

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Ulster Swift Ltd v Taunton Meat Haulage Ltd (1977).

Unavoidable circumstancesArt. 17.2• Circumstances the carrier could not avoid AND consequences he was

unable to prevent (on the facts of each case)

• Silber –v- Islander Trucking [1985]

• Standard required is “utmost care” - “somewhere between, on the one hand, a requirement to take every conceivable precaution, however extreme, within the limits of the law, and on the other hand a duty to do no more than act reasonably in accordance with prudent current practice”.

• 4 factors:– Likelihood of loss, damage or delay– practicality of the measures required– legality– knowledge

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Unavoidable circumstances examples

• Theft, robbery and hijack

• Collision

• Vandalism/arson

• “Official vandalism”

• Weather

• Delay

CMR 60th Anniversary

Art 29 CMR: Wilful Misconduct in England & Wales

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Art 29: Wilful Misconduct under the Law of England and Wales

• In the event of wilful misconduct (or equivalent default) on the part of the carrier, its servants or agents, the carrier is not entitled to rely on any provision which excludes or limits liability or shifts the burden of proof.

• No limit of liability 8.33 SDRs/kg

• Art 32(1) time bar is three years

Art 29: Wilful Misconduct

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• English law does not recognise “default equivalent to wilful misconduct”

Wilful Misconduct

I. The act/omission was far outside the range of ordinary conduct

II. The carrier intended to cause loss or damage OR aware that its conduct would increase risk of loss and deliberately took the risk when unreasonable in circumstances to do so

III. The wilful act caused the loss

Wilful Misconduct

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• Subjective test.

• Court unwilling to imply knowledge

• He took a risk that he knew he ought not to take

Wilful Misconduct

• Horabin v BOAC [1952]

Two drivers drive through red lights and suffer an RTA causing damage to cargo.

The first driver is not concentrating and realises too late that the lights have changed.

The second saw the lights were changing and thought ‘very little traffic ever emerges from the side road’. So he carries on.

Wilful Misconduct

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• Lacey’s Footwear (Wholesale) Ltd v Bowler International Freight Ltd [1997]

– Express instr’s to deliver only to delivery address.

– Instr’s repeated twice over the phone when the experienced driver enquired

– Intercepted on arrival and told to load 3 kms down the road – goods were stolen.

WM at 1st instance

Appellants argued the driver was duped – but appeal dismissed

CoA “deliberate disregard for positive instr’s”

Micro Anvika Ltd v TNT Express Worldwide (Eurohub) [2006]

Similar to Lacey’s Footwear on facts.

Luxembourg to Belgium to England – persuaded to deliver around the corner from the delivery address off Tottenham Court Road

Belgian driver – unaware of “round the corner scams”. Sophisticated theives.

Not negligent and certainly not WM

– Similar facts: different outcome

Wilful Misconduct - examples

• Datec Electronic Holdings v UPS Ltd [2007]– Computer Processors from UK to Holland

– Alleged theft by UPS employees

– 1st instance – too speculative to say stolen

– CoA: Employee theft much more probable

Wilful Misconduct - examples

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Denfleet International v TNT Global SpA [2007] EWCA

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• First instance

– Aware that he was sleepy

– On the balance of probabilities – made a conscious and deliberate decision to carry on driving

• Court of Appeal

– State of mind of sleepy driver is I’ll shake it off

Sidney G Jones Ltd v Martin Bencher Ltd [1986]

Driver exceeded his driving hours by 1hrs 50 min. (25%)

Driver aware of reg’s and deliberately ignored them

Fell asleep at the wheel.

– Allowed appeal. Mere fact that must have known he was sleepy did not equate to WM

– Different if breached driving hours or alerted by hitting side of road

Denfleet International v TNT Global SpA [2007] EWCA

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Wilful Misconduct

• Difficult to prove

• Far higher bar than negligence

• Subjective test – dependant on what the driver/offending party was thinking.