Contracting out

lien granted by Art 13(2) of the CMR will be regarded as null and void.45 So also are clauses that attempt to remove the carrier’s liability for loss, damage or delay that he would incur under Art 17 of the CMR.46 Although the convention limits the compensation payable by the carrier, he is free to agree to a higher liability amount with the sender. The sender can declare a value for the goods (Art 24)

in excess of the limits laid down in the CMR (Art 23(3)), or he may fix the amount of special interest in delivery (Art 26(1)). The latter would be appropriate where the sender wishes to cover consequential loss, such as loss of profit, as a result of loss, damage or delay in delivery of the goods. In both cases, the amount must be declared in the consignment note.47 The sender may find that he has to pay a surcharge to the carrier.

Documentary responsibilities

The consignment note plays an important role in the CMR. It must be in three original copies; the first to be handed to the sender, the second to accompany the goods, and the third to be retained by the carrier (Art 5(1)). The note must be signed by the sender and the carrier. Reference to local law will decide on the acceptability of stamping or printing of signatures (Art 5(1)).48 According to Art 6(1), the following particulars need to be included in the consignment note:

•the date of the consignment note;

•the place where the consignment note is made;

•name and address of the sender;

•name and address of the carrier;

•the place of taking over of the goods;

•the date of taking over;

•the place designated for delivery;

•the name and address of the consignee;

•common description of the goods and details about its packaging;

•generally recognised description of dangerous goods;

•number of packages, special marks and numbers;

•gross weight or other indication of quantity of goods;

•charges in respect of carriage (including supplementary charges, customs duties and other charges incurred from the time of taking over to the time of delivery);

•instructions in respect of customs and other formalities and

•a statement that the carriage is subject to the provisions of the convention.

The consignment note, where applicable, must also contain the following information according to Art 6(2):

•a statement that transhipment is not allowed,

•charges that the sender agrees to pay,

45See T Comedy (UK) Ltd v Easy Managed Transport Ltd [2007] EWHC 611 (Comm). In the court’s view Art 13(2) ‘creates a self contained code whereby the consignee has the right to require delivery of the goods on payment of the charges. A general lien would derogate from the consignees’ right of delivery on payment of the charges, because the consignee could only obtain payment of additional sums due in respect of other carriages. So . . . a general lien is null and void under Art 41 of the CMR Convention’ [at para 52].

46Datec Electronics Holdings Ltd v United Parcels Service Ltd [2007] UKHL 23.

47See ‘Documentary Responsibilities’, below and Art 6(2)(d).

48See Texas Instrument Ltd v Nasan (Europe) Ltd [1991] 1 Lloyd’s Rep 146.

•amount of ‘cash on delivery’ charges,

•declaration of value of the goods and amount representing special interest in delivery,

•sender’s instructions to carrier regarding insurance of the cargo,

•agreed time limit within which carriage to be carried out and

•list of documents handed to the carrier.

There is no indication in the CMR as to who is responsible for filling in the particulars of the consignment note. Since the onus is cast on the sender for the accuracy and adequacy of details entered in Art 6(2) and in Art 6(1), such as name and address of sender, date and place of taking over the goods, description of goods and packaging and weight/quality of goods, there is strong indication that the convention expects the sender to complete much of the consignment note. Where the carrier incurs expenses, or suffers loss or damage as a result of inaccuracies or inadequate information, the sender will be liable to the carrier (Art 7(1)). It is possible that the carrier may be asked to fill in the details by the sender. Where this is undertaken by the carrier, he shall be presumed to have done so on behalf of the sender unless the contrary is proved (Art 7(2)).

As for the statement that the carriage is subject to the convention, it seems that the onus is on the carrier to ensure that this is included since its absence would make him liable for all expenses, loss and damage sustained by the person entitled to dispose of the goods (Art 7(3)).

The making of the consignment note is prima facie evidence of the making of the contract of carriage, its conditions and receipt of goods (Arts 4 and 9). The lack of a consignment note, its loss or irregularity, however, will not affect the existence or validity of the contract of carriage.49 The contract of carriage will still be subject to the provisions of the CMR (Art 4). The lack of a consignment note, however, is likely to affect the rights of disposal that the sender and the consignee possess under the CMR due to the formalities in respect of the consignment laid down in Art 12(5).There is a similar problem where successive carriers are involved. According to Art 34, where a single contract is performed by successive carriers, the successive carriers become a party to the contract of carriage under the terms of the consignment note, by reason of acceptance of the goods and the consignment note (Art 34).50 In the light of these formalities, it is questionable whether a carrier can be a successive carrier for the purposes of the CMR in the absence of a consignment note.51 However, it seems that the carrier who omits to enter his name and address on the consignment note that travels with the goods will, nonetheless, be a successive carrier and subject to the CMR.52

Although the sender is responsible for inserting information about the number of packages, marks, and numbers, it is the carrier’s duty to check the accuracy of these details (Art 8(1)(a)). The carrier, if he is unable to check the accuracy of these particulars, is free to make reservations together with reasons for his inability to check the details provided (Art 8(2)).53 Where the sender expressly agrees with the reservations made on the consignment note, he will be unable to dispute them. The CMR does not indicate what would constitute an express agreement on

49See Gefco UK Ltd v Mason [1998] 2 Lloyd’s Rep 585.

50The lack of a consignment note in Sandeman Coprimar SA v Transits y Transportes Integrales SL, Bradford Cargo Terminal Ltd, Spain TIR Centro Transportes Internacionales SA, Interserve International Freight plc, Joda Freight [2003] EWCA Civ 113 meant that all the links in the contractual chain could not be welded into a single contract. However, sub-bailment on CMR terms was found (see paras 64–6).

51Transcontainers Express Ltd v Custodian Security Ltd [1988] 1 Lloyd’s Rep 128. In some countries, Art 4 has been used to support the view that acceptance of a consignment note by the successive carrier is not essential for bringing him within the CMR. See also Clarke,

International Carriage of Goods by Road: CMR 2003 LLP.

52SGS-ATES Componenti Elettronici v Grappa [1978] 1 Lloyd’s Rep 281.

53The carrier may be unable to check marks, or numbers of packages, since he may not be able to physically get to them – for example, when they are packed in containers.

the part of the sender. A verbal agreement (preferably in the presence of a third party) may suffice, although a written agreement would be far better for evidential purposes.54 In the absence of endorsements, it will be presumed that the details on the consignment note are correct. However, the carrier will be able to adduce evidence to the contrary as against the sender and the consignee.55

The carrier is also responsible for checking the apparent condition of the goods and their packaging (Art 8(1)(b)). Once again, reservations, together with reasons, may be entered on the consignment note (Art 8(2)). Express agreement by the sender will be binding. As for apparent condition, presumably, it refers to the condition that is perceivable on a reasonable examination. Similarly, the packaging must be adequate to withstand the journey. In the absence of reservations, particulars entered on the consignment note will be presumed to be correct. The carrier will, however, be able to adduce evidence to the contrary.

Although the carrier is under an obligation to check certain particulars (Art 8(1)(a)), the CMR does not impose any liability on the carrier if he does not carry out his obligations. At most, the carrier will find it difficult to establish that the particulars on the consignment note were incorrect. Further, the sender will not be liable to the carrier for damage to persons, equipment or other goods, or for any expenses due to defective packing of the goods as provided for in Art 10.56

There is no requirement that the carrier check the gross weight, quantity or contents of the package. The sender can, however, ask the carrier to check these (Art 8(3)). Presumably, where the carrier has checked these and entered suitable statements on the consignment note, he will not be able to deny them. In evidential terms, it will be to the sender’s benefit. The consignee may also be able to use the consignment note as security for raising credit.57 The carrier is likely to incur expenses were he to carry out these checks. The provision therefore entitles the carrier to be reimbursed for these costs.

Electronic data interchange (EDI) and the CMR

There is no provision regarding electronic documents in the CMR. It is doubtful whether an electronic equivalent of a consignment note will suffice for the purposes of the convention, since Art 5 requires the note to be signed and expects the signature to be either printed or stamped depending on the local law. Digital signatures could hardly, in the strict sense, be construed as printing or stamping, although the acceptance of the United Nations Commission on International Trade Law (UNCITRAL) Model Law on Electronic Commerce58 worldwide will ease the use of electronic documents including electronic signatures. In 2008, an Additional Protocol to the CMR concerning electronic consignment note was adopted that enables the use of electronic consignment note provided the authentication and integrity requirements are met.

54According to Loewe (‘Commentary on the Convention of 19 May 1956 on the Contract for the International Carriage of Goods by Road (CMR)’ [1976] ETL 311, at para 104), a signature on the consignment note will be insufficient to establish agreement with the carrier’s reservations, since the sender has to sign it any way under Art 5(1). A signature against the reservation on the consignment note would be sufficient, however.

55Compare with Art III(4) of the Hague-Visby Rules – see Chapter 8 Documentary responsibilities.

56Loewe, ‘Commentary on the Convention of 19 May 1956 on the Contract for the International Carriage of Goods by Road (CMR)’ [1976] ETL 311, at para 96.

57A consignment note is not a document of title, even though the sender and the consignee have rights to modify the contract under the CMR. See ‘Modification of contract’ p 367.

58See Chapter 3. Also see the Electronic Communications Act 2000.

Carrier’s liabilities and rights

Roadworthy vehicle

There is no provision that specifically states that the carrier is to provide a roadworthy vehicle. The carrier’s obligation to provide a non-defective vehicle, however, arises from Art 17(3), which states that the carrier cannot escape liability under the CMR by reason of the vehicle’s defective condition in the performance of the carriage.59 This responsibility is personal to him. So, even in the case of a hired vehicle, its defective condition arising from the wrongful act or neglect of the persons from whom he has rented the vehicle or their servants or agents will not lessen his liability.

Period of responsibility

The carrier is responsible for the goods from the time when he takes over the goods to the time of delivery (Art 17(1)). It seems from Loewe’s commentary60 that taking over61 occurs when the carrier assumes control of the goods and delivery, when he relinquishes control by placing them at the consignee’s disposal.

Liability for loss, damage and delay

The carrier is liable for both total and partial loss of goods, and for damage to the goods from the time he takes over the goods to the time of delivery. He is also liable in the event of delay in delivery (Art 17(1)). For the purposes of deciding whether there is delay in delivery, one has to look to the time limit the parties may have agreed. Where there is an agreed time limit, the carrier should deliver within that limit to avoid liability for delay (Art 19). In the absence of a time limit, delay occurs when it is not delivered within a reasonable time. However, where the goods are not delivered within 30 days of the agreed time limit or, in the absence of an agreed time limit, within 60 days from the time the carrier took charge of the goods, the goods will be treated as lost (Art 20(1)). So, for the purposes of calculating compensation, provisions relating to liability for loss are relevant.

A number of defences are available to the carrier under the convention. Like the CIM Rules, the defences can be categorised as general defences and special risks defences. The burden of proof differs in the two categories since, in the latter, it is assumed that the sender (claimant) assumes the risk where special circumstances apply – for instance, where he has arranged for the loading of the goods.

The general defences are laid down in Art 17(2), according to which the carrier is relieved of liability where the loss, damage or delay is caused by:

(1)wrongful act or neglect of the claimant,

(2)the claimant’s instructions given otherwise than as a result of a wrongful act or neglect of the carrier,

(3)inherent vice and

(4)circumstances that the carrier could not avoid and the consequences of which he was unable to prevent.

The onus of proof in respect of these defences rests with the carrier (Art 18(1)). Turning now to the first defence, presumably, it will cover situations where documentary responsibilities

59 Walek and Co v Chapman and Ball [1980] 2 Lloyd’s Rep 279. See Glass, ‘CMR and hire-trailers – a tilt too far’ [1981] LMCLQ 384.

60Loewe, ‘Commentary on the Convention of 19 May 1956 on the Contract for the International Carriage of Goods by Road (CMR)’ [1976] ETL 311.

61A narrow interpretation could cause problems, however – see Quantum Corp Ltd v Plane Trucking Ltd [2001] 2 Lloyd’s Rep 133.

are not fulfilled adequately – for example, incomplete customs documents from the claimant. As for the second defence, it seems that it is not restricted to instructions in respect of disposal (Art 12), but extends to instructions such as care of cargo.62 Both defences talk only of the wrongful act or neglect of the claimant. Does this mean that the carrier cannot raise this defence against a claimant who has not committed the wrongful or negligent act as in the case of a consignee who has not filled in the consignment note? The general opinion seems to be that it would be unjust if the carrier cannot raise this defence against a claimant who is not a party to the wrongful act.63

As for inherent vice, no definition is provided by the convention. However, it must be noted that inherent vice appears in other international carriage conventions and has been interpreted. No doubt, such interpretations will be relevant in the context of the CMR.64

As for the fourth defence, the issue is whether the carrier should have done everything in his power to avoid the circumstances. Or is it sufficient that he took reasonable care? The scope of this defence was considered in Michael Galley Footwear Ltd v Dominic Iaboni.65 In this case, cargo was lost when one of the unattended lorries was driven off by thieves while the drivers stopped for a meal at a cafe. The lorry was equipped with an alarm system, but it had been dismantled by the thieves.The theft could have been prevented had the drivers parked the lorries in a secure car park, or taken turns in eating their meals.The first option was not available, according to the defendants, since it would have resulted in exceeding the driving times permitted by the European Economic Community (EEC) regulations. However, the defendants, for their part, argued that they had exercised reasonable care by acting in a manner common to the trade. Although the court admitted that the carrier was not negligent, nonetheless, judgment was given for the plaintiff. The decision in this case suggests that the courts are looking for something more than reasonable care. The standard expected of the carrier was enunciated with clarity in Silber v Islander Trucking66 by Mustill J, who said that the words ‘could not avoid’ in Art 17(2) includes the rider ‘even with utmost care’. ‘Utmost care’ lies ‘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’ (at p 247). Silber v Islander Trucking suggests that, once the carrier has raised the defence, the carrier could indicate what the carrier could have done to avoid the loss, at which juncture it is open to the carrier to rebut them.

In addition, the claimant is also relieved of liability where dangerous goods have been sent without his knowledge (Art 22(2)). Besides these general defences, the convention relieves the carrier of liability when the loss or damage arises from special risks inherent in the following circumstances (Art 17(4)):

•use of open unsheeted vehicles, when their use has been expressly agreed and specified in the consignment note;

•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;

62BGH 27.10.78 (1979) Vers R 419; Cass 23.2.82 (1983) 18 ETL 13.

63Loewe, ‘Commentary on the Convention of 19 May 1956 on the Contract for the International Carriage of Goods by Road (CMR)’ [1976] ETL 311, at para 151; see also Glass and Cashmore, Introduction to the Law of Carriage, 1989, Sweet & Maxwell.

64Albacora SRL v Westcott and Laurance Line [1966] 2 Lloyd’s Rep 53. See Chapter 8, p 252 above. See Ulster-Swift v Taunton Meat Haulage

[1975] 2 Lloyd’s Rep 502, where the defence of inherent vice was raised when pork was found to be unfit for human consumption on arrival due to inadequate refrigeration. The defence was rejected since the pork had been allowed to get warm after the goods had been handed to the carrier. The refrigeration equipment was not seen as falling within Art 17(3) dealing with roadworthy vehicle.

65[1982] 2 All ER 200.

66[1985] 2 Lloyd’s Rep 243.

•handling, loading, stowage or unloading of the goods by the sender, the consignee or persons 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, dessication, leakage, normal wastage, or the action of moth or vermin;

•insufficiency or inadequacy of marks or numbers on the packages and

•the carriage of livestock.

Where the carrier can establish that the loss or damage is a result of one or more of the provided circumstances, there will be a presumption it was so caused (Art 18(2)). However, being a presumption, it is open to the claimant to show that it was not attributable partly or wholly to the specified risks. It seems that, in relation to special risks defences, the burden of proof is something less than a balance of probabilities.67

The presumption provided by Art 18(2) does not apply if there is excessive shortage or loss of package where goods are carried on unsheeted open vehicles (Art 18(3)). Where goods are carried in refrigerated vehicles, the carrier can claim the special risk defence of the nature of goods (fourth in the list above) only if he can prove that all steps incumbent on him in the circumstances with respect to the choice, maintenance and use of such equipment were taken and that he complied with any special instructions given to him (Art 18(4)). The extent of the carrier’s duty in this respect, however, is not clear. Is it one of due diligence? Or is the duty strict? The courts by and large have tended to treat the carrier’s duty as strict.68 For instance, in Ulster-Swift v Taunton Meat Haulage,69 the carrier was held liable since he was unable to show the cause of damage in the absence of inherent vice. However, it is possible that this standard may not be that strict after all, as Centrocoop Export-Import SA v Brit European Transport70 suggests. The carrier in this case was able to show that he had taken all steps incumbent on him by hiring the unit from a reputable hirer and subjecting it to inspection and regular maintenance.

Similarly, in relation to carriage of livestock, he has to prove that all steps normally incumbent on him, in the circumstances, were taken and that he complied with any special instructions issued to him (Art 18(5)).

Carrier liability and ‘cash on delivery’

The carrier may be required to collect ‘cash on delivery’ charges. This obligation would normally be included in the consignment note (Art 6(2)(c)). Were the carrier to deliver the goods without collecting the charges, he will be liable to the sender. His compensation will not exceed the amount of such charge (Art 21). The CMR does not define cash. Presumably, the issue of whether a cheque or draft is sufficient may depend on domestic law. Practices in the trade may also contribute towards deciding whether a particular mode of payment would be acceptable or not.71

Liability amount

The CMR adopts a complex formula for calculating compensation payable by the carrier. In the event of total or partial loss, the amount payable is calculated by reference to the value of the

67Ulster-Swift v Taunton Meat Haulage [1977] 1 Lloyd’s Rep 346, at p 354.

68Chao, ‘Carriage at controlled temperatures (Art 18(4))’, in Theunis (ed), International Carriage of Goods by Road (CMR), 1987, LLP.

69[1977] 1 Lloyd’s Rep 346.

70[1984] 2 Lloyd’s Rep 618.

71Goode, Payment Obligations in Commercial and Financial Transactions, 1983, Sweet & Maxwell.

goods at the place and time at which the goods were accepted for carriage (Art 23(1)). The value is determined from the commodity exchange price or the current market price (Art 23(2)). It is possible that the market price may vary depending on whether domestic market or export market is used as the yardstick. According to James Buchanan v Babco Forwarding and Shipping Co (UK) Ltd,72 export market price is relevant for the purposes of arriving at the value. The use of export price has been criticised since Art 23(1) states that compensation is to calculated by reference to the value of the goods at the place where the goods are accepted for carriage.73 Where the commodity exchange value or the current market price is unavailable, the value is to be gathered from the normal value of the goods of the same kind or quality (Art 23(2)).74 Compensation is limited to 8.33 Special Drawing Rights (SDRs) per kilogram or gross weight short.75 This limit does not apply, however, where the value of the goods (Art 24) or special interest in delivery (Art 26(1)) has been declared on the consignment note.

As for carriage charges, customs duties, and other charges in respect of carriage,76 these are recoverable in full under Art 23(4).

In the event of damage, the carrier is liable for the amount by which the goods have diminished in value (Art 25(1)). The value is once again determined by reference to the commodity exchange price, the current market price or the normal value of the goods of the same kind or quality (Art 23(2)). In any event, compensation for damage to the entire consignment cannot be more than that payable for total loss (Art 25(2)(a)). A question that has come up for consideration in this context is whether substantial damage to goods should be treated as a case of constructive total loss, thus attracting the application of Art 25 for the purposes of calculating liability. In William Tatton v Ferrymasters,77 the cargo, valued at £32,700, was worth £9,000 after damage. Although the plaintiff argued that compensation should be calculated under Art 23 since it was a case of constructive total loss,78 the court came to the conclusion that it was a case of damage.

In the event of delay, the claimant will be compensated up to the amount of carriage charges if he can show that damage has resulted from the delay (Art 23(5)). There is uncertainty as to the precise scope of ‘damage’ in this context. If the word refers to physical damage normally associated with the word, then that is recoverable under Art 25 anyway. The provision for damage in Art 23(5) appears meaningless. So, ‘damage’ in the context of Art 23(5) could only refer to economic loss, or damage to the claimant’s pocket as Clarke suggests.79 In Gefco (UK) Ltd v Mason,80 the court indicated there was nothing in the CMR to prevent recovery of economic loss, including loss of profits provided that was limited to the carriage. In the event of delay in delivery, a reservation in writing has to be sent within the time limit prescribed by Art 30(3) to obtain damages.

72[1978] AC 141. See also Lord Wilberforce at p 182.

73See Hardingham, ‘Damages under CMR: the decision of the House of Lords’ [1978] LMCLQ 51.

74See Fatme Ghandour v Circle International Ltd (1999) unreported, 2 November, available on Westlaw database under identification no 1999 WL 1019554.

75The unit for calculation purposes in the CMR is the gold franc. The replacement of the gold franc with SDRs was brought about by the Carriage by Air and Road Act 1979.

76In James Buchanan v Babco Forwarding and Shipping UK [1978] AC 141, excise duty was regarded as another charge. Does Art 23(4) cover costs incurred in the preparation of invoices and other documents, such as pre-inspection certificates, and certificate of quality? See [1978] AC 141, at p 158.

77[1974] 1 Lloyd’s Rep 203.

78See ‘Constrictive total loss’ in Chapter 14.

79Clarke, International Carriage of Goods by Road: CMR 2003, LLP.

80[2000] 2 Lloyd’s Rep 555.

Availability of limitation

The defences and limits of liability provided by the CMR are available to the carrier where a claim arising under the contract of carriage is founded extra-contractually – for instance, in tort or bailment (Art 28(1)).The same applies to the carrier’s agents, servants and those whose services he uses for the performance of the carriage, provided they act within the scope of their employment (Art 29(2)).

Loss of limitation of liability

The provisions relating to exclusion and limitation of liability provided by the CMR is lost where the damage is caused by the carrier’s wilful misconduct or default on his part, which according to the law of the court seised of the case, is regarded as equivalent to wilful misconduct (Art 29(1)). This is also the case where wilful misconduct or default is committed by the carrier’s servants, or agents, or by any other persons whose services he makes use of in the performance of the carriage acting within the scope of their employment. This provision is modelled on Art 25 of the Warsaw Convention 1929 and, as Clarke says, is odd that Art 25 was used at a time when it was under review.81 For interpretation, case law developments in respect of Art 2582 are pertinent and followed as suggested by Jones v Bencher.83 Recent cases decided in the context of CMR reinforce the view that for there to be wilful misconduct either knowledge on the part of the carrier that his conduct was wrong or his reckless indifference to the rightness or wrongness of his conduct has to be established. In TNT Global Spa and Another v Denfleet International Ltd and Another,84 the driver fell asleep at the wheel, as a result of which the lorry crashed and burst into flames resulting in the destruction of the cargo. From the evidence, it transpired that the driver was conscious that he was sleepy but carried on driving. On appeal, it was held that this of itself was insufficient to conclude that there was wilful misconduct. To quote Toulson, LJ:

To establish wilful misconduct within the meaning of the CMR, it is not enough to show that the carrier was at fault in failing to take proper care of the goods and that the carrier’s conduct was the product of a conscious decision. It has to be shown that the actor knew that his conduct was wrong or was recklessly indifferent whether it was right or wrong; and, as part of that requirement, he must have appreciated that his conduct created or might create additional risks to the goods.85

Carrier’s rights

Other than the right to freight, charges, expenses incurred in following instructions and so on, the CMR gives the carrier rights to sell the goods, dispose of the goods, or unload them in specific circumstances. The carrier can sell or dispose of the goods without awaiting instructions, where:

•they are perishable; or

•their condition warrants such a course; or

•the storage expenses would be out of proportion to the value of the goods (Art 16(3)).86

81See Chapter 10, Loss of limits of liability. See also Clarke, International Carriage of Goods by Road: CMR, 2003, LLP.

82See also Laceys Footwear (Wholesale) Ltd v Bowler International Freight Ltd and Another [1997] 2 Lloyd’s Rep 369, at pp 374–5.

83[1986] 1 Lloyd’s Rep 54. See also Texas Instruments v Nasan (Europe) Ltd [1991] 1 Lloyd’s Rep 146.

84[2007] EWCA Civ 405. See also Datex Electronics Holdings Ltd v United Parcels Service Ltd [2007] UKHL 23.

85At para 24.

86This right is similar to the agency of necessity found in common law. See Fridman, Law of Agency, 1996, Butterworths.

Cargo that does not fall within these circumstances can be sold if he has not received instructions to the contrary from the person entitled to dispose of the goods after a reasonable length of time (Art 16(3)). The CMR does not indicate whether the carrier is under an obligation to request information. Presumably, he will since the sender will not be aware of the precise circumstances which necessitate sale during carriage.

The person entitled to dispose of the goods has the right to the proceeds of the sale subject to any charges incurred by the carrier. Where the expenses are in excess of the sale proceeds, the carrier can claim the difference (Art 16(4)).

The carrier is also given the right to act in the best interests of the person entitled to dispose of the goods where circumstances prevent the carrying out of the contract and instructions have not been received by him (Arts 14(1) and (2)).

Sender’s responsibilities and rights

Dangerous goods

The sender is under an obligation to inform the carrier of the dangerous nature of the goods and precautions that need to be taken in respect of those goods (Art 22(1)). Dangerous goods are not defined by the CMR. At common law, dangerous goods include not only goods that are intrinsically dangerous (e.g., dynamite), but also cargo that may create a hazardous situation (e.g., grain).87 As to how far this common law definition could be relied on is debatable because of the CMR’s international character. The definition of dangerous goods as goods that present an immediate risk in normal transport found in Loewe’s commentary88 is perhaps more reliable. Some guidance on dangerous substances may also be obtained from the European Agreement Concerning the Carriage of Dangerous Goods by Road, 1957. However, in the absence of an exhaustive list, it is unlikely that it includes all goods that would pose an immediate risk.

Where the carrier has not been informed of the nature of the goods, the carrier is free to unload the goods, destroy them or render them harmless. He will not be liable for any compensation to the sender or consignee (Art 22(2)). Generally, the information about the dangerous nature of the goods would be entered on the consignment note (Art 6(1)(f )). However, where the note does not contain this information, the onus is on the sender or the consignee to show that the carrier was aware of the nature of the goods (Art 22(1)).

Packing

The sender is responsible for ensuring that the goods are adequately packed. If the goods are defectively packed, then the sender is liable to the carrier for damage to persons, equipment or other goods (Art 10).This applies only where the defective packing was not apparent to the carrier. However, where the defective packing is apparent and the carrier did not make any reservations, the risk lies with the carrier. It must be noted that the carrier is responsible for checking the packaging of the goods (Art 8(1)). Presumably, the issue of whether goods are adequately packed or not will depend on factors such as the nature of the goods, the length of the journey, the packaging customarily used in the trade, the weather conditions and so on.

87Ministry of Transport v Lamport and Holt [1952] 2 Lloyd’s Rep 371, at p 382.

88Loewe, ‘Commentary on the Convention of 19 May 1956 on the Contract for the International Carriage of Goods by Road (CMR)’ [1976] ETL 311, at para 186.

The CMR is silent on the party responsible for loading. Presumably, that will be a matter of agreement between the carrier and the sender. Where the sender has loaded the goods, it may be in the interests of the carrier to note this on the consignment note (Art 6(3)).

Customs formalities

Documents needed for customs, and other formalities at the frontier, are the responsibility of the sender. Any expenses caused as a result of inadequate documentation will be to the account of the sender (Art 11).

Choice of route

Unlike the CIM Rules, the CMR does not make any special provisions on the choice of route. At common law, the route to be followed is the usual route, which is the direct geographical route unless it is customary for the trade to use another route.89 As to whether this applies to carriage governed by the CMR is debatable. Of course, the sender and the carrier may agree on a specific route. Alternatively, the carrier may have agreed to deliver the goods by a certain date, which means that he will have to take a route that will make this possible.

Modification of contract

Like the CIM Rules,90 the CMR allows the sender to modify the contract. According to Art 12(1), the sender can ask the carrier to:

•stop the goods in transit,

•change the place at which the delivery is to take place or

•deliver the goods to a consignee other than the one indicated on the consignment note.

The carrier is obliged to carry out these instructions only if it is possible for him to do so – that is, the carrying out of the orders does not interfere with his normal working, or affect senders or consignees of other consignments (Art 12(5)(b)), or result in division of the consignment (Art 45(1)(c)). If the instructions cannot be carried out, the onus is on the carrier to inform the sender (Art 12(6)). Failure to do so will result in liability for loss or damage (Art 12(7)).The right to modify the contract on the sender’s part subsists as long as the consignee has not demanded delivery (as provided for in Art 13(1)), or the second copy of the consignment note has not been handed to the consignee (Art 12(2)). It is also possible that the sender may have given the rights to modify the contract to the consignee by making a suitable entry on the consignment note (Art 12(3)). In this case, the sender will have no rights under Art 12(1). Modification of the contract, however, requires completion of certain formalities. The first copy of the consignment note must contain the new instructions and should be handed over to the carrier (Art 12(5)(a)). It seems that the formalities must be strictly followed since carrying out of instructions without requiring the consignment note will make the carrier liable for any resulting loss or damage (Art 12(7)). Where the carrier incurs expenses or suffers loss or damage as a result of carrying out his instructions, he has the right to be indemnified (Art 12(5)(a)).

89Reardon Smith Line v Black Sea and Baltic General Insurance [1939] AC 562.

90See Chapter 11.