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Interesting cases relating to CMR


There have been a couple of interesting judgments concerning the Convention on the Contract for the International Carriage of Goods by Road (CMR). Whilst judgments were made in Denmark and Germany, due to the international nature of the convention, judges tend to pay attention to judgments in other jurisdictions


Denmark – making cargo available for unloading In the first case, the shipment started in Denmark with the shipper loading pallets onto the carrier’s trailer at the shipper’s loading ramp. Using a pallet truck, the driver moved the pallets to their place in the trailer along with other pieces of previously loaded cargo. Upon arrival at the destination in Sweden, the


receiver had no ramp unloading facilities. The driver asked to borrow a pump-up pallet truck in order to move the pallets for the consignee to unload using a forklift truck. Unfortunately, the driver lost control of the pallet truck and the pallets shifted towards the forklift causing damage to the cargo. The initial claim against the haulier was based


upon Article 17 of the CMR Convention. The carrier denied liability, relying on the terms of the Nordic Association for Freight Forwarders (NSAB 2015). The carrier stated that under NSAB terms, the carrier had not assumed the responsibility to unload the trailer, and it was agreed that the obligation to unload the cargo rested with the consignee. Liability was denied, claiming that damage had


occurred during the unloading of the cargo from the vehicle, which should have been performed by the consignee. It was argued that the carrier’s driver was acting on behalf of the consignee and not on behalf of the carrier. The counter argument was that the contract of


carriage was for general cargo and that the carrier bore the obligation to present the pallets


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on the trailer from which the consignee could access them and unload them. Therefore, the carrier had the pallets in its custody when the damage occurred, and the operation was not undertaken on behalf of the consignee but to fulfil the carrier’s obligation to make the cargo available for unloading by the consignee. The Danish Maritime and Commercial Court


concluded that the carrier was liable for the damages under Article 17 of the CMR. The conclusion was: “The purpose of the manoeuvre was to present the pallets in order that they could be unloaded by the consignee at the back end of the trailer by use of forklift... As the carrier has not demonstrated that the damages caused resulted from circumstances which the carrier could have not have avoided, the carrier is liable for damage.”


Germany – Secure parking The second case, heard in the German courts, related to a consignment moving from Bremen to France. The shipper’s written instructions included the following: “Keep the truck only in guarded parking areas, the safety of which complies with the requirements of your insurance.” En route the driver parked the truck overnight


at an unguarded rest area near the Dutch border after a 300 km drive and spent the night in his cab. The following morning the driver discovered that the tarpaulin had been cut and part of the load stolen. On the basis of wilful misconduct, the claimant claimed full compensation for the losses. The


carrier had disobeyed specific written instructions and parked the lorry on an unguarded, unlit road at night. The regional court found in favour of the haulier,


limiting liability to 8.33 SDR per kilo. This decision was appealed in a higher court, where the initial decision was overturned and the haulier was ordered to pay the claimant the full amount. The court noted that the haulier had acted with


wilful misconduct by disregarding the claimant’s written shipping instructions, which included a clear direction not to park in unguarded parking spaces. Only exceptional circumstances would allow


the carrier to disregard such instructions. However, such exceptional circumstances had not occurred in this case. From a forwarder’s/haulier’s viewpoint, it is


essential to carefully check any written instructions received from the sender of the goods. The forwarder should always send such


instructions in writing to the haulier that it is contracting with, so it becomes part of the contract of carriage. If you cannot comply with the instructions, it is essential to advise the shipper of this fact – for instance secure rest areas are few and far between, making it difficult to fulfil this instruction. The CMR convention has always been


regarded as the most customer friendly of the main international conventions and these judgments clearly show that carriers have significant legal responsibilities.


August 2020


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