International Carriage of Goods by Road: CMR

Malcolm A. Clarke, Malcolm Clarke, Malcolm Clarke

• Publisher: Informa Law from Routledge
• Year: 2014
• Print ISBN: 9780415710169
• eBook ISBN: 9781317915584
• Edition: 6
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Now in its sixth edition, this key text provides a comprehensive analysis of the international carriage of goods by road under the provisions of the CMR Convention. The author offers unparalleled coverage of both English and European case law in a text that is praised for its accessible, user-friendly style.

This new edition is fully updated with the very latest in case law both internationally and on a domestic level, including:

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• New developments on the applicability of the CMR to multimodal transport, as per the Godafoss case

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• The concept of the "wilful misconduct" in failure to guard the vehicle

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• Thorough analysis of TNT Express Nederland BV v AXA Versicherung AG

It also provides new coverage of the impact of e-commerce on road haulage.

This book is an invaluable reference tool for transport practitioners with an international and domestic client base. It is also a useful guide for academics and students of the carriage of goods by road.

Part I The CMR

Chapter 1 Application of the CMR

DOI: 10.4324/9781315851402-1

A Prologue

1 The origins of the CMR

“Having recognised the desirability of standardising the conditions governing the contract for the international carriage of goods by road, particularly with respect to the documents used for such carriage and to the carrier’s liability”,¹ nine European states (Austria, France, Luxembourg, Poland, Sweden, Switzerland, West Germany, the Netherlands and Yugoslavia) signed the Convention on the Contract for the International Carriage of Goods by Road on 19 May 1956.² The Convention is generally known by the acronym for its title in French: “Convention relative au Contrat de Transport International de Marchandises par Route: CMR”. Carriage by road was one of the last types of transport to be the subject of uniform law, a reflection of the intensity of the conflict of interests involved.³ The CMR came into force, as regards those states that had ratified or acceded to it, in October 1961. The United Kingdom acceded to the CMR on 21 July 1967, it having been given legislative expression as a Schedule to the Carriage of Goods by Road Act 1965, which came into force on 19 October 1967. That Act remains in force, as amended by the Carriage by Air and Road Act 1979. This book refers chiefly to the application of the CMR in England. In Wales, Scotland and Northern Ireland, to which the Acts also apply, the effect will for most purposes be the same.⁴

1 The Preamble to the CMR. 2 Generally see Loewe, paras. 1–8; Donald, “CMR – An Outline and Its History” [1975] LMCLQ 420–1; Loewe, 1996 ULR 429. 3 Vrebos (1966) 1 ETL 678. 4 See below, 201.

2 The authors of the CMR

The CMR was largely the work of a committee⁵ set up by a Working Party on Legal Questions, itself a subsidiary organ of the Inland Transport Committee of the United Nations Economic Commission for Europe (ECE).⁶ A draft Convention prepared by the committee was the basis of negotiations between national delegations during 1955 and 1956, conducted mostly in French,⁷ as a result of which the final text was agreed. The draft was based partly on work done previously by the International Institute for the Unification of Private Law (UNIDROIT) and partly on the International Convention on the Transport of Goods by Rail of 14 October 1890, known as CIM.⁸ The CMR was drafted on the assumption that road and rail were in direct competition, that ultimately harmonisation of the various regimes would be necessary with a view to combined transport,⁹ and that therefore, as far as possible, the liability regime and other rules should be the same.¹⁰ Harmonisation of regimes has not come about.¹¹ Nonetheless, in many respects CMR may be regarded as a success: a workable international regime for the international carriage of goods by road; its fiftieth anniversary was celebrated in 2006.¹²

5 Messrs Hostie (UNIDROIT), de Sydow (Sweden) and Kopelmanas (ECE Secretariat). 6 For reference to travaux préparatoires see Haak, pp. 8 et seq. and Nickel-Lanz, pp. 187–8. The documents, which are in English and in French, are deposited in the Library of the United Nations at Geneva, under references such as those given below. 7 Loewe, Theunis, p. 145. 8 The current version was until recently that of 1980. However, an entirely new version was agreed in 1999, a shorter version which is even closer in content to CMR. This version, adopted in what was called the Protocol of Vilnius, and came in force in the UK in June 2006: S.I. 2005 No. 2092. See Clarke and Yates, 2.477 ff. 9 E/ECE/TRANS/SC1/64, p. 9. 10 E.g., E/ECE/TRANS/SC1/116, p. 6; TRANS/WP9/11, p. 2; TRANS/WP9/22. Evidently some rules would differ as, for example, a railway is easy to contact through one of its stations, and a train easier to stop than a road vehicle, the driver of which has more commercial responsibility for the goods carried than the driver of a train. 11 Indeed, it may well be under threat from a “maritime plus” regime advanced by UNCITRAL, with the assistance of members of the CMI, to be known as the Rotterdam Rules; see (2008) 14 JIML 6, a special issue devoted to the Rules; and below 13a. 12 Celebrated by a conference at Deauville. Papers given at the Conference were later published in ULR 2006–3. In particular, see Ferrer ULR 2006.517.

B Interpretation¹³

13 In this book no distinction is intended between “construction” and “interpretation”: on a possible distinction see Clarke, Insurance, para. 15–1.

3 The Buchanan Case

The rules of interpretation appropriate to the CMR were discussed by the Court of Appeal¹⁴ and, later, by the House of Lords¹⁵ in James Buchanan & Co v. Babco Forwarding & Shipping (UK):

14 [1977] QB 208, discussed by Hill, “The Interpretation of CMR in English Courts” [1977] LMCLQ 212 and by Sacks and Harlow, “Interpretation, European-Style” (1977) 40 MLR 578. Generally, see Jacobs and Roberts (eds.), The Effect of Treaties in Domestic Law (London, 1987) and Debattista, “Carriage Conventions and their interpretation in English Courts” [1997] JBL 130. For a less (than) literal and less traditional interpretation of international uniform law texts such as CMR, see L. Marquis, International Uniform Commercial Law (Aldershot 2005); and for criticism of the focus of current “jurisprudence”: M. Heidemann, Methodology of Uniform Contract Law (Berlin-Heidelberg-NY, 2007). 15 [1978] AC 141; Munday (1978) 27 ICLQ 450 and Herman (1981) 1 LS 165.

Whisky en route for Iran was stolen from the defendant carrier’s vehicle before it had left the United Kingdom. In these circumstances the plaintiff sender had to pay £30,000 duty on the whisky, duty, which would not have been exigible if the whisky had been successfully exported. It was admitted that the defendant was liable under the CMR in respect of the loss of the whisky; the question in dispute was the extent of that liability. The plaintiff sought to recover the amount paid as duty as an instance of “other charges incurred in respect of the carriage of goods” recoverable from the carrier under Article 23.4.¹⁶ It was argued for the carrier that on “English” rules of interpretation the charge claimed must be a charge for carriage, which, manifestly, the payment of duty was not. It was argued for the plaintiff that in an international Convention a more liberal interpretation was appropriate, an interpretation whereby the “other charges” included charges consequent upon the carriage, thus including the duty that had become payable. Both the Court of Appeal and the House of Lords preferred the second argument and thus gave judgment for the plaintiff sender.

16 On the meaning of Art. 23.4 see below, 97c.

3a Broad principles of general acceptation

It was agreed, but with more emphasis in the Court of Appeal than in the House of Lords, that it was desirable that courts in different countries should interpret an international Convention in an international and uniform manner, and that, therefore, consideration should be given to the decisions of courts in other countries.¹⁷ That this might be difficult should not deter the attempt; non-uniformity leads to forum shopping and to the waste of both time and money. The basic approach to interpretation, upheld by the judgments of the House of Lords in James Buchanan, remains that of Lord Macmillan in Stag Line v. Foscolo, Mango & Co in respect of the Carriage of Goods by Sea Act 1924:¹⁸

17 [1977] QB 208, 213, per Lord Denning MR, 221, per Roskill LJ, 222, per Lawton LJ; [1978] AC 141, 168, per Lord Edmund-Davies; Silber v. Islander Trucking [1985] 2 Lloyd’s Rep 243, 245, per Mustill J. 18 [1932] AC 328, 350 approved in Buchanan v. Babco [1978] AC 141, 152, per Lord Wilberforce and 160, per Lord Salmon and in Fothergill v. Monarch Airlines Ltd [1981] AC 251, 282, per Lord Diplock, 285, per Lord Fraser and 293, per Lord Scarman. Cf. Putzeys, para. 256: “La CMR s’interprète selon les principes généraux du droit national du juge saisie, sans rigorisme.” An important rule of English law in a domestic case is that the context of a statutory provision includes previous statues in which the word or phrase to be interpreted has been used, with a presumption that the word or phrase has been used in the same sense in each statute: Gosse Millerd v. Ca...

Table of contents

• Cover Page
• Half Title Page
• Maritime and Transport Law Library
• Title Page
• Copyright Page
• International Carriage of Goods by Road
• Preface to the Sixth Edition
• Contents
• Table of Abbreviations
• Table of Cases
• Table of European Cases
• Table of Legislation
• Table of Standard Conditions
• Part I: The CMR
• Chapter 1 Application of the CMR
• Chapter 2 The Contract of Carriage: Documentation
• Chapter 3 The Journey
• Chapter 4 Claims
• Chapter 15 The Liability of the Carrier
• Chapter 6 Defences Available to the Carrier
• Chapter 7 The Special Risks
• Chapter 8 Remedies
• Part II: English Domestic Law
• Chapter 9 The Contract of Carriage
• Chapter 10 The Journey
• Chapter 11 Claims
• Chapter 12 The Liability of the Carrier
• Chapter 13 Defences
• Chapter 14 Remedies
• Part III: Appendices
• Appendix A Carriage of Goods by Road Act 1965
• Appendix B French text of the CMR
• Appendix C Carriage by Air and Road Act 1979
• Appendix D Road Haulage Association Limited (RHA) Conditions of Carriage 1998
• Appendix E British International Freight Association (BIFA) Standard Trading Conditions
• Appendix F British International Freight Association (BIFA) Standard Trading Conditions
• Index