” “ International Trade Law   Cell:  Question hour : Tuesday (after class, same room)  Course Website : Internal Trade Law (in lingua inglese) Internal Trade Law (in lingua inglese) sprudenza/studiare/International%20Tr ade%20Law%20%28in%20lingua%20i nglese%29%20  Place : Via Ercole I d’Este 37, class 6  Lezioni : Tuesday and Thursday  Time :  Requirement : commercial law  Crediti : 6

” “ Lecture 7: Carriage of goods by Road M.E. de Leeuw, International Trade Law

” “ International carriage of goods by Road  International carriage of goods by Road (“CMR”); Protocol (1978) and e-CMR (2008)  Parties 55 countries.  Objective: to harmonise the conditions governing the contract, in particular in respect of the documents used and the liability of the carrier.  Application (Article 1(1) CMR):  Contract of carriage of goods by road (exclusively?) for reward in vehicles;  Place of taking and 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.

” “ Multi-modal transport and CMR  Since there is no Convention on multi-modal transport, does the CMR apply to the road limb of transport by more means?  Domestic legal systems answer this question differently:  UK court in Quantum Corp Ltd v Plane Trucking Ltd, 2002, ruled in favour of direct applicability of CMR.  The German Bundesgerichtshof in case ZR 181/05 of 17/07/2008 ruled against the direct applicability of the CMR.

” “ Mandatory status of CMR  The Convention is mandatory, i.e. parties cannot contract out of the provisions of the CMR (art. 41),  Excepion: carrier may determine a higher liability amount (compensation), see art. 24 and 26(1)).

” “ Article 6 1. The consignment note shall contain the following particulars: (a) The date of the consignment note and the place at which it is made out; (b) The name and address of the sender; (c) The name and address of the carrier; (d) The place and the date of taking over of the goods and the place designated for delivery; (e) The name and address of the consignee; (f) The description in common use of the nature of the goods and the method of packing, and, in the case of dangerous goods, their generally recognized description; (g) The number of packages and their special marks and numbers; (h) The gross weight of the goods or their quantity otherwise expressed; (i) Charges relating to the carriage (carriage charges, supplementary charges, customs duties and other charges incurred from the making of the contract to the time of delivery); (j) The requisite instructions for Customs and other formalities; (k) A statement that the carriage is subject, notwithstanding any clause to the contrary, to the provisions of this Convention.

” “ 2. Where applicable, the consignment note shall also contain the following particulars: ( a) A statement that trans-shipment is not allowed; (b) The charges which the sender undertakes to pay; (c) The amount of "cash on delivery" charges; (d) A declaration of the value of the goods and the amount representing special interest in delivery; (e) The sender's instructions to the carrier regarding insurance of the goods; (f) The agreed time limit within which the carriage is to be carried out; (g) A list of the documents handed to the carrier. Art. 7 sender is liable for all expenses, loss and damages sustained by the carrier due to inaccuracy or inadquacy of particulars as specified in art. 6(1)/(2) (see yellow parts) and other particulars (art. 6(3)).

” “ Duties of sender and carrier Before taking over the goods: Sender:  Must take care of the necessary information and documentation, like doc. for customs, formalities at the frontier (art. 11);  Must make sure goods are adequately packed (art. 10);  Must inform the carrier of dangerous nature of goods and precautions needed (art. 22(1)); Carrier:  Check the accuracy of the consignment note, art. 8(1)(a);  Check the apparent condition of the goods and their packaging (art. 8(1)(b));  Make reservations in respect of a) and b), see art. 8(2). NO RESERVATIONS-GOOD CONDITION GOODS and NUMBER PACKAGES/MARKS CORRESPOND (art. 9(2))  check weight, quantity or content if asked by seller art. 8(3)  Make up consignment note according to CMR (art. 7);

” “ Rights of sender and carrier During carriage:  Sender:  Has the right to dispose of the goods (art. 12), by asking the carrier in particular:  To stop the goods in transit; change delivery place, deliver goods to other consignee.  The contract may be modified as long as the consignee has not demanded delivery or the second copy of consignment has not been handed to the consignee (art. 12(2)).  Carrier:  may sell the goods, without awaiting instructions from the person entitled to dispose of them, if the goods are perishable; or their condition warrants such a course; or when the storage expenses would be out of proportion to the value of the goods (art. 16(3)).  In case he cannot carry out the contract, and no instructions have been received, he can act in the best interests of the persons entitled to dispose of the goods (art. 14(1)(2)).  In case of dangerous goods, he may unload, destroy them or render them harmless (art. 22(2)).

” “ The liability of the carrier, and relief  The carrier is liable for Art. 17(1) :  Total and partial loss of the goods, and for damages to the goods occurred during the time he takes over the goods untill delivery (art. 20, loss);  For delay in delivery (art. 19);  The lack of providing a non-defective vehicle (in art. 17(3));  He is NOT liable if he proves that:  “by the wrongful act or neglect of the claimant, by the instructions of the claimant given otherwise than as the result of a wrongful act or neglect on the part of the carrier, by inherent vice of the goods or through circumstances which the carrier could not avoid and the consequences of which he was unable to prevent.” (art. 17(2) )/art. 8(1)).  When dangerous goods have been sent without the carrier’s knowldege (art. 22(2)).

” “ The liability of the carrier, and relief  Special risks reliefs for the carrier (art. 17(4):  (a) Use of open unsheeted vehicles, when their use has been expressly agreed and specified in the consignment note;  (b) The lack of, or defective condition of packing in the case of goods which, by their nature, are liable to wastage or to be damaged when not packed or when not properly packed;  (c) Handling, loading, stowage or unloading of the goods by the sender, the consignee or person acting on behalf of the sender or the consignee;  (d) The nature of certain kinds of goods which particularly exposes them to total or partial loss or to damage, especially through breakage, rust, decay, desiccation, leakage, normal wastage, or the action of moth or vermin;  (f) Insufficiency or inadequacy of marks or numbers on the packages;  (g) The carriage of livestock.  When the loss or damage is the result of one of the circumstances above, there is a presumption it was so caused (art. 18(2)). The claimant may prove the contrary.

” “ The liability of the carrier, and relief  If the carrier is liable compensation is required (art. 23);  Carrier looses his limitation of liability where the damage is caused by the carrier’s (or his servants, agents or other persons) willful misconduct or default on his part (art. 29(1)).

” “ The liability of the sender  The sender is liable for all expenses, loss and damage sustained by the carrier due to the provision of incorrect information or inadequate documents (as required by art. 7 (see yellow provisions in slide before) and art. 11); and for defective packaging (art. 10)  The sender shall be liable for all expenses, loss or damage arising out of the handing over for carriage or of carriage of dangerous goods (art. 22(2)).