4 th IRU-LAS-AULT SEMINAR SESSION IV – SECURING COMMERCIAL GOODS TRANSPORT AND INSURANCE CONTRACTS

1. 4th IRU-LAS-AULT SEMINARSESSION IV – SECURING COMMERCIAL GOODS TRANSPORT AND INSURANCE CONTRACTS Alexandria, 5 November 2012 (c) International Road Transport Union (IRU) 2012

2. The CMR Convention: Key instruments to harmonise contracts for international carriage of goods by road: Main principles Alexandria, 5 November 2012 Jean AcriIRU Special TIR Advisor (c) International Road Transport Union (IRU) 2012

3. Why CMR is key? Without harmonised contractual conditions for international road transport: • How and when the contract is concluded? • What is the form and the nature of the contract? • Which law will govern the contract? • Which are the parties’ respective obligations? • What procedures to follow in case of delay, or damage, or non-delivery? • Which level of indemnity should apply? • What is the content of transport documents? (c) International Road Transport Union (IRU) 2012

4. Why CMR is key? Without harmonised contractual conditions for international road transport: • Road transport operators, shippers and consignees would not be in a position to measure their commercial / financial exposure UNPREDICTABILITY • Difficulty for insurers to assess risk and provide coverage • Open door to « à la carte » contracts and legal uncertainty • Unclear rules for establishing transport documents (c) International Road Transport Union (IRU) 2012

5. International Carriage by Road under the CMR Objectives of the CMR • to harmonise contractual conditions • to contribute to facilitating the carriage of goods using the CMR consignment note • to contribute to harmonising competitive conditions ---------------------------------------------------------------------- The texts: • the 1956 CMR • 1978 Protocol (SDR) • Additional “e-CMR” Protocol in 2008 (entered into force in 2011) (c) International Road Transport Union (IRU) 2012

6. CMR generalities • Obligations of the parties under the CMR • Delivery under the CMR • Conditions and limits of liability under the CMR • Handling of claims under the CMR • Insurance and CMR (c) International Road Transport Union (IRU) 2012

7. CMR generalities CMR Convention: 55 Contracting Parties 5 LAS Contracting Parties: • Morocco • Tunisia • Syria • Lebanon • Jordan Applies to every contract for the international carriage of goods by road between two different countries of which at least one is a contracting country. (c) International Road Transport Union (IRU) 2012

8. CMR generalities:How the CMR fits into the general legal environment CMR National legislation Contractual area General environment customs transport social new technologies (c) International Road Transport Union (IRU) 2012

9. CMR generalities • Contract between the sender and the carrier for the international carriage of goods by road for reward • covers successive movements • addresses multimodality: applies to carriage by ferries and using combined transport for door to door movements • excludes all contradictory clauses (c) International Road Transport Union (IRU) 2012

10. CMR generalities:The scope of the CMR Taking the goods over Delivery Transport + the international consignment note + incidents en route + claims and compensation for delay, damage and loss Loading/ unloading/ charges ? National legislation General conditions (c) International Road Transport Union (IRU) 2012

11. Obligations of the parties under the CMR Liable for all loss and damage sustained by reason of the inaccuracy or inadequacy of certain particulars or documents (Articles 7 and 11) Presumption of good condition (Article 8.2) • Before taking over the goods • Sender: • packaging • information • documents • dangerous goods (Article 22.1) • Carrier: Checks: • tally number, markings and numbers on packages • apparent condition and packaging • the gross weight of the goods and the contents of the packages if requested by the sender but at his expense (Article 8.3) •  Making out the CMR consignment note (c) International Road Transport Union (IRU) 2012

12. 3 copies: • one for the shipper • one for the consignee • one for the carrier • Signature = proof of acceptance (c) International Road Transport Union (IRU) 2012

13. Obligations of the parties under the CMR Article 14 • During carriage • Sender: • has a right to dispose of the goods (Article 12) • Carrier: • keeps, delivers or returns the documents provided by the sender (Article 11) • notifies, in the event of an incident in particular • accepts instructions • safeguards the goods • particular case of dangerous goods (c) International Road Transport Union (IRU) 2012

14. Delivery under the CMR No definition of delivery in the CMR  national law • if delivery is prevented  the carrier notifies and asks for instructions (Article 15.1) • immediate unloading (Article 16.2) • sale of the goods (Articles 16.3, 4 and 5) (c) International Road Transport Union (IRU) 2012

15. Conditions and limits of liability under the CMR Fundamental principles of the CMR: • Presumption of liability (liability for staff and contractors) • Compensation limited EXCEPT (c) International Road Transport Union (IRU) 2012

16. Conditions and limits of liability under the CMR Article 17: loss, damage and delay • The carrier is liable for: • partial or total loss • damage • delay  which arises between the taking over and delivery of the goods • But he is relieved of his liability if he proves that the loss, damage or delay was caused by: • a wrongful act or neglect by the claimant • instructions given by the claimant • inherent vice of the goods • circumstances which the carrier could not avoid and the consequences of which he was unable to prevent (force majeure without unpredictability) (c) International Road Transport Union (IRU) 2012

17. Conditions and limits of liability under the CMR Article 18: loss and damage • The carrier may also attempt to relieve himself of liability if he proves that the loss or damage could be attributed to a special risk: • use of open vehicles and vehicles not sheeted in accordance with the CMR • 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 • handling by the sender or the consignee • the nature of certain kinds of goods which exposes them to the risk of rust, breakage or decay • insufficiency or inadequacy of marks or numbers on the packages • the carriage of livestock • But the claimant may prove the contrary.  That is just a reversal of the burden of proof. (c) International Road Transport Union (IRU) 2012

18. Conditions and limits of liability under the CMR Article 19: delay • exceeding the time-limit agreed or • exceeding the time it would be reasonable to allow a diligent carrier Article 20: total loss • thirty days after the expiry of the time-limit agreed or • sixty days from the time when the carrier took over the goods (c) International Road Transport Union (IRU) 2012

19. Conditions and limits of liability under the CMR Articles 23 and 24: loss and damage • the loss which is compensated is the loss and damage to property • amount: 8.33 SDR per kg of goods lost or damaged – unless a higher value has been declared • reference value: the value of the goods at the place and time at which they were accepted for carriage + - carriage charges - customs duties - other charges  in full or in proportion Article 23.5: delay • the claimant must prove that the delay has caused a loss • compensation limited to the carriage charges (c) International Road Transport Union (IRU) 2012

20. Conditions and limits of liability under the CMR Loss, damage and delay • Higher compensation if: • a special interest in delivery has been declared (Article 26) • No limit or no exclusion of liability (Article 29) if: • wilful misconduct by the carrier • or default equivalent to wilful misconduct (c) International Road Transport Union (IRU) 2012

21. Handling of claims under the CMR Article 30: protection of rights • Loss and damage: • joint examination at the time of delivery • (for loss or damage which is apparent) if there is no reservation or report giving a general indication of the loss or damage, it is presumed that delivery is in accordance with the consignment note BUT CLAIMS ARE NOT BARRED • exception for loss or damage which is not apparent - notification is to be made in writing within seven days of delivery • Delay: • written reservations within twenty-one days from the time that the goods were placed at the disposal of the consignee. OTHERWISE BARRED (c) International Road Transport Union (IRU) 2012

22. Handling of claims under the CMR Article 32 • Period of limitation: • in principle: one year • but: three years if there is wilful misconduct or default equivalent to it • Begins to run: • date of delivery (partial loss, damage or delay) • thirty days after the expiry of the time-limit agreed (total loss) or sixty days after the goods were taken over by the carrier • other cases: three months after the conclusion of the contract • Suspension: • written claim by the claimant • Recommencement of the period of limitation: • written rejection of the claim by the carrier and the return of the documents (c) International Road Transport Union (IRU) 2012

23. Handling of claims under the CMR Articles 31 and 33: competent courts • arbitration tribunal: if the arbitration clause provides that the tribunal shall apply the CMR • in the absence of a clause specifying competent courts: • courts of the country in which the defendant is resident or • courts of the country in which the goods were taken over or were to be delivered (c) International Road Transport Union (IRU) 2012

24. Insurance and CMR • CMR through the harmonisation of contractual conditions facilitates insurance coverage • Insurers can measure the risk they cover • Insurers are not exposed to unknown conditions of transport • Insurers benefit from harmonised claims procedures and liability limits Better insurance conditions and premiums (c) International Road Transport Union (IRU) 2012

25. www.iru.org (c) International Road Transport Union (IRU) 2012