Chapter 12

International Carriage of Goods by Road

Chapter Contents

Introduction	352
Interpretation of the CMR by the English courts	352
Scope of application	353
Contracting out	356
Documentary responsibilities	357
Electronic data interchange (EDI) and the CMR	359
Carrier’s liabilities and rights	360
Sender’s responsibilities and rights	365
Consignee’s rights and responsibilities	367
Proceedings	367
CMR – the future	372
Further reading	372

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Introduction

The law relating to international carriage of goods by road was standardised in 1956 with the Convention on the International Carriage of Goods by Road (hereinafter ‘CMR’).1 Largely modelled on the CIM Rules,2 this convention was drafted by the United Nations Economic Commission for Europe (ECE) based in Geneva.3 The parties to the CMR consist of both ECE and non-ECE member countries.4 The United Kingdom (UK) acceded to this convention in 1967, which is attached as a schedule to the enabling Act – the Carriage of Goods by Road Act 1965. This Act, still in force, was amended in 1979 by the Carriage by Air and Road Act.

Interpretation of the CMR by the English courts

As already made clear, international conventions have to be interpreted in a tolerant manner if the stated aims of uniformity and certainty are to be achieved successfully. Fortunately, English courts have adopted a sensitive attitude when it comes to the interpretation of international conventions.5

Interpretation of the CMR was considered in James Buchanan and Co Ltd v Babco Forwarding and Shipping (UK) Ltd by the Court of Appeal6 and the House of Lords.7 The point at issue was whether duty paid on a cargo of whisky stolen prior to export was recoverable from the defendant as ‘another charge in respect of the carriage’ under Art 23(4).8 If construed literally, the defendant would have escaped liability. The House of Lords, however, followed the standard set in Stag Line v Foscola, Mango and Co.9 Remembering the primary objective of international conventions is to bring about standardisation and uniformity, and to avoid forum shopping, the words were construed sensibly and liberally10 in favour of the plaintiff. Where ambiguity persists despite the broad construction of words, the courts may look to the French text of the CMR according to the obiter statements made in James Buchanan and Co Ltd v Babco Forwarding and Shipping Co Ltd.11 Both the English and French texts of the CMR are equally authentic (Art 51).12 The English courts will also consider, with caution, official documentation (travaux préparatoires).13 However, in relation to the CMR, only a commentary based on

1 The abbreviation is from its French title Convention Relative Au Contrat de Transport International de Marchandises par Route. 2 See Chapter 11.

3See for a general history, Donald, ‘CMR – an outline and its history’ [1975] LMCLQ 420. There is also an Inter-American Convention on International Carriage of Goods 1989. See Larsen, ‘1989 Inter-American Convention on international Carriage of Goods by Road’ (1991) 39 AJCL 121. The text of this convention can be found at www.oas.org.

4Forty-six countries had acceded to or ratified the convention as of 12 September 2004. This information is based on the table available on the ECE website: www.unece.org. The contracting ECE member countries include Austria, Belgium, Denmark, Finland, France, Germany, Greece, Hungary, Italy, Latvia and Luxembourg, and non ECE member countries include the Islamic

	Republic of Iran, Jordan and Tunisia. The majority of ratifications are from European states.
5	It seems that in other jurisdictions – for example, Greece – international conventions, until recently, were interpreted in a man-
	ner that was consistent with their civil code. See Murray, ‘Wilful misconduct under the CMR’ [1999] JBL 180.
6	[1977] QB 208. See Sacks and Harlow, ‘Interpretation, European style’ (1977) 40 MLR 578.
7	[1978] AC 141. See Munday, ‘The uniform interpretation of international conventions’ [1978] ICLQ 450.

8See also Tatton and Co Ltd v Ferrymasters Ltd [1974] 1 Lloyd’s Rep 203, where the Court of Appeal held that the cost of retransportation did not come within the ambit of the phrase ‘other charges’.

9	See [1932] AC 328 and Chapter 8, pp 218–20.
10	See Stag Line v Foscola, Mango and Co [1932] AC 328, at p 350; James Buchanan and Co v Babco Forwarding and Shipping UK [1977] QB 208, at
	p 213; Gefco (UK) Ltd v Mason [2000] 2 Lloyd’s Rep 555, at p 562. See also Art 3(1) of the Vienna Convention on the Law of Treaties
	on the purposive approach.

11See [1978] AC 141, at pp 152, 161 and 167.

12Only the English text is attached as a schedule to the Carriage of Goods by Road Act 1965 and given force of law by s 1. See Palmer, On Bailment, 1991, Sweet & Maxwell, p 1114.

13Stated in Fothergill v Monarch Airlines [1981] 2 AC 251 in relation to the Warsaw Convention. See Chapter 10, Approach to Interpretation of the Warsaw Convention in the English courts.

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conference papers is available,14 and it is debatable whether this has a status similar to that of official documentation. Other than the travaux préparatoires, the courts may also consider foreign decisions,15 depending on the jurisdiction, the status of the court within the foreign jurisdiction and the extent of reasoning available in the judgments. However, a note of caution must be added.These decisions may prove to be of little use in the absence of a consensus. As Lord Salmon said:

If a corpus of law had grown up overseas which laid down the meaning of Art 23, our courts would no doubt follow it for the sake of uniformity which it is the object of the convention to establish. But no such corpus exists. The appellants have relied on a Dutch case, British American Tobacco Co (Netherland) BV v Van Swieten BV, decided in Amsterdam on 30 March 1977. The facts were very similar to those of the present case and a clear judgment was given in favour of the carriers. Unfortunately, I find myself quite unable to accept the reasons on which that judgment was based. There is a French case decided by the Court of Appeal in Paris on 30 March 1973 which seems to be similar to the present in which the interpretation of Art 23 contended for by the present respondents was accepted. Far from there being any uniform corpus of law relating to the convention . . . disharmony reigns, for 12 different interpretations have been produced by the courts of different member countries concerning the supposed meaning of the various Articles in the convention. Our courts are therefore thrown back on their own resources. We must rely on our own methods of interpretation . . .16

Scope of application

The CMR comes into operation when:

•there is a contract of carriage of goods by road for reward,

•the goods are carried on vehicles,

•the place of taking over and the place designated for delivery specified in the contract are situated in two different states and

•the place of taking over or the place of delivery is a contracting state (Art 1(1)).

The international element – that is, carriage from one country to another – is essential for the applicability of the CMR.17 It is not, however, necessary that both the country where the goods are taken over and the country where the goods are delivered are parties to the convention. So, where goods are taken over in London and delivered in Cairo, the CMR will apply. Similarly, where goods are sent from Cairo to London, the CMR will come into operation. It must, however, be noted that the CMR’s applicability is triggered by the contract. The actual arrival (or non-arrival, as the case may be)18 at its international destination is an irrelevant factor. Contracts for gratuitous

14Loewe, ‘Commentary on the Convention of 19 May 1956 on the Contract for the International Carriage of Goods by Road (CMR)’ [1976] ETL 311.

15James Buchanan and Co v Babco Forwarding and Shipping UK [1978] AC 141, at p 168.

16Ibid.

17See Pesce, ‘The contract and carriage under the CMR’, in Theunis (ed), International Carriage of Goods by Road (CMR), 1987, LLP. Carriage from England to Jersey does not fall within the ambit of the CMR. See Chloride Industrial Batteries Ltd v F and W Freight Ltd

[1989] 2 Lloyd’s Rep 274. Note that, under Art 1(5), contracting states are allowed to exclude the application of the CMR to frontier traffic. The Protocol excludes the application of the convention to traffic between United Kingdom and the Republic of Ireland.

18See James Buchanan and Co v Babco Forwarding and Shipping UK [1978] AC 141, where the consignment did not arrive at Paris. Also see Moto-Vespa v MAT [1979] 1 Lloyd’s Rep 175, where a domestic leg of the journey, as a result of fresh instructions, attracted the application of the CMR.

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carriage of goods, even where international, will fall outside the scope of the CMR. The goods must be carried by vehicles, which are defined as ‘motor vehicles, articulated vehicles, trailer, and semi-trailers as defined by Art 4 of the Convention on Road Traffic dated 19 September 1949’ (Art 1(2)).19 The CMR applies only to carriage of goods. Goods, however, are not defined. It is possible that the courts might look to their domestic legislation for a definition.20

The wisdom of relying on a definition found in domestic legislation is debatable given the international dimension of the CMR and the need to promote uniformity. In these circumstances, it might be preferable to construe goods as including items that are not excluded specifically by the CMR.21 Under Art 1(4), funeral consignments, furniture removal22 and carriage performed under the terms of any international postal convention fall outside the scope of the CMR. As to whether ‘goods’ would include containers and packaging is unclear. Presumably, where containers23 or packaging is part of the gross weight, compensation for containers would be allowed.

According to s 14(2) of the Carriage of Goods by Road Act 1965, the CMR affects the rights and liabilities of the sender,24 the consignee, the carrier,25 any successive carrier who becomes a party to the contract of carriage,26 and any person for whom the carrier is responsible under Art 3 of the convention – that is, his agents, servants and other person whose services he uses to perform the carriage. Questions have arisen as to whether a freight forwarder, not engaged in the carriage, comes within the ambit of the convention. In Ulster-Swift Ltd v Taunton Meat Haulage Ltd,27 the court said that, where a freight forwarder has signed the contract of carriage, the CMR will apply, unless of course the person signing the contract has acted as an agent.The question of whether an individual has signed as the principal or agent has to be gathered from the facts. Factors, such as details on the invoice, charge structure,28 and the extent of communication between the person signing the contract and the person for whom he purports to act, may indicate whether the relationship is one of agent and principal or not.29

Combined transport

The CMR, with some hesitation,30 can be said to be innovative in providing for combined transport. According to Art 2, where goods are carried on a vehicle that is loaded on to another mode of

19See Haak, The Liability of the Carrier under the CMR, 1986, Stichting Vervoeradres, pp 48–9.

20As for England, the Sale of Goods Act 1979 defines goods in s 61(1). See Glass and Cashmore, Introduction to the Law of Carriage, 1989, Sweet & Maxwell, para 3.10.

21Loewe, ‘Commentary on the Convention of 19 May 1956 on the Contract for the International Carriage of Goods by Road (CMR)’ [1976] ETL 311, para 25. See also Clarke, International Carriage of Goods by Road: CMR, 2003, LLP.

22There is some doubt about the scope of this phrase. According to Clarke (see International Carriage of Goods by Road: CMR, 2003, LLP), the scope of removal is to be gathered from the French word déménagement, which includes packing and other services provided by the carrier.

23See RB Antwerp 7.1.77 (1977) 22 ETL 420, where containers did not fall within the scope of the convention.

24The sender could be acting as agent of the consignee – see Moto-Vespa v MAT [1979] 1 Lloyd’s Rep 175.

25These identities are not always fixed. For instance, a party could be a sender in some circumstances and for another a successive carrier. See Gefco (UK) Ltd v Mason [2000] 2 Lloyd’s Rep 555, at p 565.

26For the successive carrier to come within the ambit of the CMR, the successive carrier must perform under a single contract, namely, where a single consignment note is issued. See Arctic Electronic Co UK Ltd v McGregor Sea and Air Services Ltd [1985] 2 Lloyd’s Rep 510. See also

Coggins T/A PC Transport v LKW Walter IT AG [1999] 1 Lloyd’s Rep 255; ITT Schaub-Lorenz Vertriebgesellschaft mbH v Birkart Johann Internationale Spedition GmBH and Co KG [1988] 1 Lloyd’s Rep 487.

27[1977] 1 Lloyd’s Rep 346.

28See Aqualon UK Ltd v Vallana Shipping Corp [1994] 1 Lloyd’s Rep 669. See also Chapter 13, Freight forwarder – agent or principal? for further on this issue.

29	See Hair and Skin Trading Co Ltd v Norman Air Freight Carrier and World Transport Agencies Ltd [1974] 1 Lloyd’s Rep 443; Tetroc v Cross Con [1981]
	1 Lloyd’s Rep 192; Electronska v Transped [1986] 1 Lloyd’s Rep 49; Texas Instruments Ltd v Nasan (Europe) Ltd [1991] 1 Lloyd’s Rep 146.
30	Article 2 was inserted at the insistence of the UK delegation. See Theunis, ‘The liability of a carrier by road in roll on, roll off
	traffic’, in Theunis (ed), International Carriage of Goods by Road (CMR), 1987, LLP. For an excellent analysis of Art 2, see Glass, ‘Article 2
	of the CMR Convention – an appraisal’ [2000] JBL 562.

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transport, such as a ship or an aircraft (i.e., ro-ro31 traffic), the convention applies to the entire voyage. In other words, where combined transport is used and the goods are unloaded for any reason (e.g., for loading on to the other mode of transport, for purposes of convenience), the CMR will not apply. So far, so good. However, in some circumstances, the carrier may become subject to a different liability scheme, since Art 2 contains the following proviso:

Provided that to the extent that it is proved any loss, damage or delay in delivery of the goods which occurs during the carriage by the other means of transport was not caused by an act or omission of the carrier by road, but by some event which could only have occurred in the course of and by reason of the carriage by that other means of transport, the liability of the carrier by road shall be determined not by this convention but in the manner in which the liability of the carrier by the other means of transport would have been determined if a contract for the carriage of the goods alone had been made by the sender with the carrier by the other means of transport in accordance with the conditions prescribed by law for the carriage of goods by that means of transport [emphasis added].

And this is where the problems begin. Article 2 talks of the road carrier being subject to conditions prescribed by law for the carriage by the other means of transport. Does this mean that the carrier will be subject to international conventions, such as the Hague-Visby Rules, when they are mandatorily applicable? The Hague-Visby Rules apply mandatorily only where a bill of lading or similar document of title is issued.32 Consignment notes used in road transport, however, are not documents of title. Does this mean that the Hague-Visby Rules need to be contractually incorporated? Can contractual incorporation be said to be prescribed by law?33 If not, will the courts apply their domestic law to the sea part of the journey? Or, will the entire journey be governed by the CMR for the sake of uniformity?

Article 2 was considered by the English courts in Thermo Engineers v Ferrymasters.34 The case involved the carriage of a steam exchange heater from Aylesbury to Copenhagen with the sea voyage starting at Felixstowe subject to a bill of lading. The heater, carried on a trailer, hit the deck head during loading and was damaged. The court had to decide whether liability was to be calculated in terms of the Hague-Visby Rules. According to Neill J, the proviso to Art 2 applies only where the loss, damage or delay:

•occurs when carriage by the other means of transport starts,

•is not caused by an act or omission of the carrier and

•is caused by an event that could only have occurred in the course of and by reason of the other mode of transport.

As for the first condition, the plaintiffs argued that the CMR was the relevant convention for the purposes of determining liability since the vehicle was moving when the damage occurred.This suggestion was declined by the judge who felt that there was force in the submission that the CMR was meant to fit in with other conventions. Applying Pyrene v Scindia Navigation,35 he concluded that

31Stands for roll on, roll off.

32See Chapter 8, Scope of application for recent developments regarding the applicability of the Hague Rules to waybills. See also

Pejovic, ‘Documents of title in carriage of goods by sea: present status and possible future directions’ [2001] JBL 461.

33See the French decision The Anna Oden (Cass fr 5 July 1989, reported in [1990] ETL 221) discussed in De Wit, Multimodal Transport, 1995, LLP, at p 105, where the court held that the Hague-Visby Rules did not apply to the sea leg of the journey despite a clause incorporating the Rules. See also the Dutch decision (The Gabriel Wehr) discussed in Multiple Transport at pp 106–7.

34[1981] 1 Lloyd’s Rep 200.

35[1954] 1 Lloyd’s Rep 321.