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provisions in force at the destination or any agreement that the consignee and the carrier may have (Art 17(2)).
Modification of contract
The consignee has the right to modify the contract from the time the consignment note is drawn up unless the consignor indicates otherwise on the consignment note (Art 17(3)).
Once the consignee has taken possession of the goods or the consignment note, he cannot modify the contract. Where the ‘new’ consignee (i.e., the person nominated by the consignee) has taken delivery of the goods, the consignee cannot modify the contract (Art 18(4)). The right to modify the contract does not extend to the person nominated by the consignee (Art 18(5)).
Proceedings
By whom
The CIM Rules contain specific provisions in respect of the parties entitled to bring an action against the carrier. An action for recovering of money paid to the carrier can be brought only by the person who has made the payment (Art 44(2)). An action in respect of cash on delivery payments can be brought only by the consignor (Art 44(4)). As for other claims arising from the contract of carriage, the consignor is entitled to bring the action, provided the consignee has not entered the picture. Once the consignee takes possession of the consignment note, or accepts the goods, or requires the railway to hand over the consignment note and deliver the goods to him, or modifies the contract of carriage, the consignor loses the right to bring an action against the carrier (Art 44(1)). Where the goods are delayed beyond 30 days from the expiry of the transit period, the consignee can sue the carrier in his own name (Art 17(3)).
The consignee also loses his right to bring an action where the person designated by him has accepted the goods or taken up the consignment note or asserted his rights (Art 44(2)). The consignment note plays a central role, since it must be produced for bringing an action. Where the consignor brings an action, the duplicate of the consignment note must be produced (Art 44(5)). If he is unable to do this, then an authorisation from the consignee is required. Where the consignee has refused to accept the goods, he must be able to show proof to this effect. Similarly, the consignee can bring an action on production of the consignment note. Where the consignee has modified the contract, then, presumably, the ‘new’ consignee will acquire the right to sue the carrier, provided he has possession of the consignment note, accepted the goods, or required the carrier, on arrival at the destination, to hand over the consignment note and deliver the goods.
Against whom
The rules against whom the claimant can bring an action are laid out in Art 45 of the CIM Rules. Where the action is for recovering sums paid, it can be brought against the carrier who has collected the sum. However, where a carrier who has collected the sum on behalf of another, the action can be brought against the carrier on whose behalf the money was collected Art 45(3). Where the action is in respect of cash on delivery, it can be brought only against the carrier who has taken over the goods at the place of consignment (Art 45(4)). All other actions can be brought either against the carrier who accepted the cargo, or the carrier that delivers the cargo, or the carrier on which the event giving rise to the action occurred. Where an action is brought against the successive carrier who is to deliver the goods, it is not necessary, as a precondition of the action, that the carrier has received the goods, or the consignment note (Art 43(2)).
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Choice of forum
All other actions relating to the carriage contract45 can be brought against the first carrier, the last carrier or the carrier who performed the part of the carriage during which the event (e.g., damage to the goods) took place (Art 45(1)). Where a successive carrier is to perform the delivery leg according to Art 45(2), an action may brought against him even if he is not in possession of the consignment note or the goods. It must also be noted that, where the goods are accepted, it will extinguish all rights of action be it for partial loss, damage or exceeding the transit period under Art 47(1). A number of exceptions, however, are allowed, for instance, where the loss or damage is not apparent but is revealed subsequent to acceptance of the goods by the person entitled.46
Unlike CIM 1980, which did not give any choice in respect of forum, the CIM Rules adopt a more liberal approach. According to Art 46, the parties are free to bring their action in the court or tribunals of a state where the defendant has his domicile or habitual residence or his principal place of business, or branch or agency which concluded the contract of carriage. Alternatively, they can choose the place of taking over the goods or the place designated for delivery is situated. In the absence of specific reference, it is unclear from Art 44 whether the parties can elect for arbitration. However, Art 28(2) of COTIF 1999 suggests that, if a dispute is not settled amicably or brought before the ordinary courts or tribunals, it may by agreement be referred to an arbitration tribunal. Articles 29–32 deal with the arbitration procedure and composition of the arbitration tribunal.
Time limitation
The period of limitation for an action in relation to the contract of carriage is one year. However, the limitation period is two years in the following matters:
•an action for recovery of cash on delivery collected from the consignee by the carrier;
•recovery of proceeds of sale effected from a sale effected by the carrier;
•where the loss or damage has resulted from an act or omission done with intent to cause such loss or damage, or recklessly and with knowledge that such loss or damage would probably result; or
•where a consignment originally consigned under the CIM Rules that is subsequently reconsigned before the loss or damage was ascertained, provided it is subject to the CIM Rules and the carrier remained in charge of them and it was reconsigned in the same condition as when it arrived at the place from which it was reconsigned.47
Conclusion
Although it is the case that the CIM Rules have limited impact when seen in a global context, it seems that OTIF will be playing a prominent role since it lists amongt its future tasks ‘widening the scope of COTIF and harmonising with other transport legislation in order to make possible in the longer term through-carriage by rail under a single legal regime from the Atlantic to the
45In all cases where the CIM Rules apply, any action against the carrier (or his servants or others for whom he is liable) in regard to liability on whatever grounds will be subject to the conditions and limitations of the CIM Rules (Art 41). In other words, this provision is intended to prevent extra-contractual proceedings. See Explanatory Report, p 39 for further on this.
46See Art 47.
47On reconsignment see Art 28.
