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Conference on 60 years CMR reveals differences in application treaty

donderdag 27 oktober 2016

On 6 and 7 October, the International Conference 60 years CMR took place. I was pleased to attend the conference. The following is a brief report of several interesting issues that were discussed.

Explanation CMR convention

The CMR convention is an international treaty containing rules regarding transport of goods by road.  55 countries have affiliated themselves with the treaty. Most European countries have joined the treaty, but also countries such as Russia, Morocco and Tunisia.

There is not an international court that interprets the treaty. Therefore, the courts in the member states have to do that themselves. At the conference, various speakers from several countries have explained how the treaty is interpreted by the courts in their countries.

The treaty aimed at creating uniformity as far as road transport law is concerned. In general, the treaty is considered to be a success, but the various presentations showed that the desired unity of law has only been partially achieved.

Characteristics CMR convention

The CMR convention is characterised by the fact that a road carrier may be held liable for cargo and delay damage, but that it can invoke the liability limitation of 8.33 SDR (a mix of several currencies) per kilo of transported cargo. Differences exist in the jurisprudence of the various countries as to under which circumstances a carrier escapes liability, but also under which circumstances the liability limitation can be broken in favour of the cargo stakeholder. The differences are the largest in case of breaking the liability limitation. This is partly due to the fact that the relevant article 29 paragraph 1 refers to domestic law. In addition, there are two official language versions of the treaty, English and French. According to the unofficial Dutch translation, breaking the limitation is the case when damage arises from the carrier's intent or the carrier's guilt, which, according to the law of the court the claim was brought before, is equivalent to intent. As far as the degree of guilt is concerned, the French version uses the term intent ('dol'), but the English version calls that ‘default equivalent to wilful misconduct’.

Default equivalent to wilful misconduct

It is remarkable, that the concept of default equivalent to wilful misconduct was unknown to the British domestic law. In the UK, a highly subjective test was developed in the case law. What did the carrier think? In a case in which a driver fell asleep behind the wheel - resulting in an accident and cargo damage -, the question arose if he should have been aware of his drowsiness and, therefore, should not have continued driving. The court assumed the driver must have thought he would get more alert again. Wilful misconduct was, therefore, not the case and breaking the liability limitation was not adopted.

Breaking liability

In the Netherlands, it is very difficult to break the liability limitation. According to the Netherlands Supreme Court, for breaking the limitation to be applicable, it must be proven that the carrier was aware of the risks of his behaviour and that he was aware of the fact that the possibility that the risk would occur was significantly larger than that it would not happen and that he was not held back by that.  There should have been awareness that the risk of damage as a result of the behaviour was indeed significantly larger than 50%. 

In Germany, it is easier to break the limitation. The criterion is, that there must be a severe disregard of the obligations of the carrier regarding the interest of the sender, knowing that the damage was likely to have been caused by that.

The presentation of a Polish scientist showed, that breaking the limitation in Poland is assumed when there is an intentional breach of contract or deliberate failure to comply with certain agreements. Thus, in Poland, breaking the limitation is easier adopted than in the Netherlands.

In conclusion

It was interesting to hear the case law of the various countries. For now, it looks like the treaty will apply for a long time. It is intriguing to see how the courts of the treaty states will deal with new developments. For instance, nowadays, it is more common for refugees to hide in trucks, which result in cargo damage. This raises the question whether a carrier is liable for the damage and, if so, whether he will be able to invoke the limitation.

Information

If you would like more information on this subject, please contact Peter de Graaf.

Peter de Graaf

insolvencies and reorganisation

+31 (0)10 209 27 52
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