The regulation of the international carriage of goods by road is contained in the Convention relative au contract de trasport interntional de marchandises par route: for simplicity called C-M-R.
Scope of application
Under the Convention on the Contract for the International Carriage of Goods by Road (CMR) signed in Geneva on 19 May 1956, as amended by Protocol of 5 July 1978, the CMR Convention shall apply to: “any contract for the carriage of goods by road for consideration by means of vehicles irrespective of the domicile and nationality of the parties, where the place of receipt of the goods and the place of delivery indicated in the contract are located in two different countries, of which at least one is a Party to the Convention”.
According to the above
mentioned Convention, transport must have as its object «marchandises», or
physical entities which qualify as goods and which are not:
• luggage incidental to a passenger transport contract;
•carriage under international postal agreements;
•to funeral services;
• at the removals
The article 2 of CMR specifically regulates cumulative international transport by differentiating the rules according to whether or not there is a “load break”. If in fact the goods are not unloaded from the road vehicle in turn transported on different means of transport (i.e. ferries or railway wagons), and therefore there is no “break in load”, the CMR will apply; in the case, on the contrary, the things are unloaded and recharged on means other than road, you will have “breaking the load” and consequently the inapplicability of the Road Convention.
Carrier’s liability for loss or damage to cargo
The carrier’s liability is governed by art. 17 of the Convention, which regulates the main cases of:
• total loss of goods;
• partial loss of goods;
• damage or damage.
In the event of the total loss of the goods, the Convention provides that in the event that the carrier causes damage to the goods by intent or fault attributable to him, he shall not be entitled to avail himself of the provisions which exclude or limit his liability (arguments that we will deal with in the next paragraph) but will be bound to the full compensation of the value of the goods.
The Convention establishes a limit
to the compensation to be paid by the carrier for the total or partial loss of
the goods which may not exceed 8,33 units of account for each kilogram of
missing gross weight, in the absence of special declarations by the consignor
(made before the conclusion of the contract in order to allow the carrier to
estimate and conclude a contract of insurance goods).
This allowance shall be calculated on the basis of the value of the goods at the place and time at which the carrier received the goods. In addition, the carriage price, customs duties and other costs incurred in connection with the transport of the goods shall be refunded in full in the event of a total loss and proportionally in the event of a partial loss; no further damages shall be due.
On the other hand, in the event of delay, the carrier must pay compensation not exceeding the transport price, provided that there is proof of injury suffered.
In the event of partial loss or apparent damage, the consignee must immediately reserve the carrier, while in the event of a hidden failure the consignee is obliged to contest the reservation to the carrier within 7 days of the delivery in written form.
The concept of loss also includes the indefinite delay in delivery.
The goods may in fact be considered lost if they have not been returned within 30 days of the expiry of the agreed time limit or, if a time limit has not been established, within 60 days of receipt of the goods by the carrier.
The equalization of the delay with the total loss,
however, does not occur automatically as a result of the aforementioned delay. The
compensation for delay shall not exceed the transport price.
If the delay also results in damage to the goods, the latter shall be compensated as indicated above, and the person entitled shall take action to contest the case shall apply the responsibilities set out in the preceding paragraphs.
Exemption Carrier liability
As indicated above, the carrier is liable, with the
burden of proof to be borne by the carrier of the total or partial loss, the
damage or delay in delivery between the time of receipt of the goods and the
time of delivery to the consignee.
The grounds for disclaimer may be:
1. General character
- The fault of the person entitled (e.g. for incorrect drawing up of the consignment note; insufficient documents; an incorrect address; faulty stowage; the order of suspension of carriage by order of the consignor and defective unloading by the consignee).
- Order of the entitled party not dependent on fault of the carrier.Example: The carrier cannot be held responsible for the damage of the goods carried itself, For example, it is the result of incorrect instructions to regulate the temperature of the refrigerated vehicle used for transport.
- Defect proper to the goods.
- Lack of packaging.
2. Completely unavoidable facts or circumstances which
the carrier could not avoid and the consequences of which could not be remedied
by the road accident which occurred without fault or by arson, if the carrier
had taken every possible precaution.
3. Cases for exemption as a result of special circumstances.
The CMR Convention provides for three types of limitation period. The limitation period shall run from:
• In the case of partial loss, damage or delay from the day on which the goods were returned.
• In the case of total loss from the 30th day after expiry of the term, from the 60th day from receipt of goods.
In all other cases, from the third month after the
date of conclusion of the transport contract.
The written complaint shall suspend the limitation period until the day on which the carrier rejects it in writing.