Chapter 11

International Carriage of Goods by Rail

Chapter Contents

Introduction

The law relating to international rail carriage is to be found in the Convention on International Carriage by Rail (COTIF). Harmonisation in respect of international rail carriage was achieved as far back as 1890 with the Convention internationale sur le transport de marchandises par chemin de fer. This Convention created an Administrative Union served by the Central Office for the International Carriage by Rail for med in 1893. Periodic amendments were made to the Convention at various revision conferences. At the eighth revision conference held in 1980, however, substantial reforms regarding the institutional provisions found in the original convention were undertaken, leading to the creation of the Inter-governmental Organisation for the International Carriage by Rail (OTIF).1 The aim of OTIF is to promote, improve and facilitate in all respects international traffic by rail.2 Part of its remit is to establish systems of uniform law, including contract of international carriage of goods, dangerous goods and passengers by rail. The Uniform Rules Concerning the Contract for the International Carriage of Goods by Rail (CIM, 1980)3 was attached as appendix B to COTIF 1980. COTIF 19804 underwent periodic revisions. However, in the mid-1990s, the OTIF undertook a major programme to revise COTIF, and Vilnius Protocol 19995 presented a new version of COTIF 1999.6 The reason for this new version was to better reflect the developments in rail carriage brought about by privatisation and the changing market structures in rail transportation. As with COTIF 1980, the new version of the CIM Rules are attached as Appendix B to COTIF 1999.7 The Vilnius Protocol came into force on 1 July 2006. The United Kingdom (UK) is a party to this Protocol and has implemented it.8 All references in this chapter will be to the CIM Rules as appended to COTIF 1999, unless otherwise indicated.

Before going on to examine the various aspects of the CIM Rules, from its applicability to the liability scheme, a few words on the principles guiding its drafting are needed. The Explanatory Note to the CIM Rules makes it apparent that the aim was to achieve harmonisation with other conventions applicable to other modes of transport, especially the CMR. And in this, the drafters of the CIM seem to have followed the example of the CMR, while leaving themselves sufficient scope for adapting and improving some of the provisions suitably for the peculiarities of rail carriage.

1The secretariat services for OTIF have been provided by the Secretary General since 2006. Previously, it was served by a permanent secretariat, the Central Office for Carriage by Rail (Office Central des transports Internationaux (OCTI)), located at Berne.

2 Art 2(1).

3 Règles uniformes concernant le contrat de transport international ferrovaire des merchandises. The CIM Rules apply to over 240,000 km of railway lines and to complementary carriage of goods on shipping lines and inland waterways. Visit www.otif.org for further details on lines that are registered.

4 COTIF 1980 contained two appendices: (A) CIV Rules, Uniform Rules concerning contracts for the international carriage of passengers and (B) CIM Rules.

5 Protocol of 3 June 1999 for the Modification of the Convention concerning International Carriage by Rail 1980.

6 The text of COTIF 1999 is available at www.otif.org. One of the major changes brought about by the Vilnius Protocol is the introduction of English as a working language. The other working languages are French and German.

7 COTIF 1999 has 7 appendices: Appendix A – CIV Rules on contracts concerning international carriage of passengers by rail; Appendix C – RID Regulation concerning the international carriage of goods by air; Appendix D – CUV Uniform rules concerning contracts of use of vehicles in international rail traffic; Appendix E – CUI Uniform Rules concerning the contract of uniform rules for use of infrastructure in international rail traffic; Appendix F – APTU validation of technical standards and adoption of uniform technical prescriptions for railway material; Appendix G – ATMF Procedure for the technical admission of railway vehicles and other railway material used in international traffic.

8The Railways (Convention on International Carriage by Rail) Regulation SI 2005 2092. For full list of ratifications, accessions, see www.otif.org.

Interpretation of the CIM

There is no special provision regarding the interpretation of the convention. Although the text is available in German, English and French languages, the French text is to prevail (Art 45, COTIF 1999). In the event of ambiguity, the courts will look to the French text for guidance – a step commonly resorted to in other transport conventions, such as the Convention for the Unification of Certain Rules Relating to International Carriage by Air 1929.9 OTIF does produce a bulletin10 that reports decisions from various courts.This may also aid in achieving a uniform interpretation of the convention.

Scope of application

The CIM Rules come into operation where there is a contract for the carriage of goods11 for reward12 in the following situations:

•When the place for taking over the goods and place designated for delivery are located in two different (Art 2(1));

•When the place of taking over and place designated for delivery of goods are located in two different states, one of which is a member state and the parties agree that the contract is to be subject to the Rules (Art 2(2));

•When the international carriage subject to a single contract involves a road or inland waterway element as a supplement to carriage by rail (Art 2(3));13 and

•Where complementary services by sea or inland waterway are provided and these are included in the CIM list of maritime and inland waterway services (Art 2(4)).14

The CIM Rules, however, do not recognise as international carriage performed between stations situated in the territory of neighbouring states, state X and state Y, where the station located in the neighbouring state Y is not operated by that state or entities from state Y but by entities belonging to state X. Such carriages will be subject to national law.

Although a through consignment note covering the entire carriage was necessary for bringing the carriage within the ambit of CIM 1980, the CIM Rules do not impose such a requirement. Nonetheless, a consignment note does play an important role in the CIM Rules since it is viewed as providing documentary proof (even if refutable) of conclusion and the content of the contract of carriage and the taking over of the goods. Article 6(2), therefore, requires that the contract of carriage be confirmed with a consignment note.The absence, irregularity or loss of the consignment note does not in any way affect the validity of the contract of carriage or the applicability of the CIM Rules to the carriage contract.

Unlike CIM 1980,15 the CIM Rules do not categorise cargo into those that are acceptable and those that are not and, therefore, are applicable to all kinds of cargo.

9 See Chapter 10.

10 Unfortunately, OTIF does not maintain an easily accessible electronic database like UNCITRAL, which reports decisions on the Convention on the International Sale of Goods (see Chapter 2).

11It does not apply to other types of contracts such as charter contracts.

12It does not apply to gratuitous carriage.

13According to the Explanatory Report on the Uniform Rules Concerning the Contract of Carriage by Rail (CIM) the phrase ‘as a supplement’ is ‘intended to express the idea that the principal subject-matter of the carriage is transfrontier carriage by rail’. (Emphasis in original.) See para 16.

14See Art 24 COTIF 1999.

15See Arts 4 and 5(1).

Status of carrier

In CIM 1980, the status of the carrier was broadly comparable to that of the common carrier at common law, thus reflecting the role of the railway as provider of public services.16 The CIM Rules, however, do not impose such an obligation on the carrier, and the agreement between the carrier and consignor is viewed as a consensual one. For purposes of clarity, the different types of carriers are also defined in Art 3. ‘Carrier’ for the purposes of the CIM Rules refers to the contractual carrier (the carrier with whom the consignor has signed the contract of carriage) or a subsequent carrier who is liable on the basis of the contract (Art 3(a)). It does not, however, include a substitute carrier who is defined under a separate provision (Art 3(b)) as a carrier to whom the carrier referred to in Art 3(a) has entrusted in part or in whole the performance of the carriage by rail.

Combined transport

As stated earlier (see p 338), it is possible that complementary services by sea or inland waterway may be provided in transporting the goods by rail. Where such complementary services by water are included in the CIM list of maritime and inland waterways, the CIM Rules will also apply to the carriage not performed by rail. For instance, where goods are unloaded and carried by ferry to their destination, the CIM Rules will apply to the entire voyage, provided that the service is included in the CIM list.

Where rail and sea transport are combined, Art 38(1) allows a state to include exceptions peculiar to sea carriage provided it is appropriately noted in the list of services. The exceptions allowed under Art 38(1) are:

•fire, if the carrier proves that it was not caused by his act or fault, or that of the master, a mariner, pilot or the carrier’s servants;

•perils, dangers and accidents of the sea or navigable waters;

•saving or attempting to save life or property at sea; and

•the loading of goods on the deck of the ship, if they are so loaded with the consent of the consignor in the consignment note and are not in wagons.

The exemptions listed in Art 38(1) seem to be modelled on exclusions allowed by the Hague Rules and Hague-Visby Rules.17 The carrier will be able to rely on these exceptions only where he can show that the loss, damage or exceeding the transit period occurred in the course of the sea journey between the time the goods were loaded on board the ship and the time when they are unloaded from the ship (Art 38(2)). The CIM Rules do not specify the precise moment the goods are deemed to be on board the ship or discharged from the ship. Presumably, the tackle-to-tackle rule applied in the Hague Rules and Hague-Visby Rules18 will be taken into account in the interpretation of Art 38(1). The exceptions allowed by Art 38(2)(a–d) do not, however, affect the liability limits set by the CIM Rules. However, the carrier will be unable to rely on the exemptions if the claimant proves that the loss, damage or exceeding the transit period is due to the fault of the carrier, the master, mariner, the pilot or the carrier’s servants (Art 38(3)).

16 A common carrier under common law is one who carries for all in return for a reward. The CIM 1980 did stipulate a number of conditions in Arts 3, 4 and 5. For further information, see the 3rd edn of Carr, International Trade Law, 2005, Routledge-Cavendish, pp 359–60.

17See Chapter 8.

18See Chapter 8, period of application.