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CMR

Questions 1: Jurisdiction? EEX Question 2: Applicable law: Step 1: Special treaty: CMR provides answer to conflict! Step 2: ECO rules of reference (to nat. Law which will provide answers) Step 3: national rules that deal with IPL Question 3: Specific treaty that provides an immediate solution to a conflict between contracting parties The parties involved in carriage the sender/consignor: party who closes the contract of carriage with the carrier (depends on the incoterm); any natural or legal person who closes a contract of carriage with a carrier and who hands over the goods to the carrier. the carrier: the party to the contract of carriage who commits himself to transporting the goods from one place to another. the consignee: person whose name appears on the record as the party to whom the shipment is to be delivered by the carrier; entitled to the delivery of the goods when is the CMR applicable Based on article 1 CMR, a court has to assess whether the following requirements are met: 1. the contract is a contract for the carriage of goods by road in vehicles for reward; 2. the place of taking over the goods (by the carrier) and the place designated for delivery as specified in the contract are situated in two different countries; 3. a. The place of taking over the goods is situated in a contracting state of the CMR; or b. the place designated for delivery is situated in a contracting state of the CMR All requirements met CMR applies no choice of law or exclusion allowed. Most important articles of the CMR ( will be provided in the EXAM) art. 2 CMR deals with the application of the CMR Convention in case the means of transport changes underway from road to sea/rail/air. art. 4 CMR states that the contract of carriage must be confirmed by a consignment note. art. 5 CMR states that 3 original copies of the consignment note have to be created; one is for the sender, one accompanies the goods and one is retained by the carrier. art. 6 CMR mentions the information that has to be included in the consignment note. art. 8 CMR mentions the things the carrier has to check the moment he takes over the goods. art. 9 CMR states that the consignment note shall be evidence of among other things receipt of the goods by the carrier; unless specific reservations have been made by the carrier, it shall be presumed, unless the contrary is proved, that the goods and their packaging appeared to be in good condition. art. 10 CMR sender is liable to carrier for damage to persons, equipment or other goods, due to defective packing of the goods, unless the defect was apparent or known to the carrier at the time when he took over the goods and he made no reservations concerning it. Art. 23 CMR specifies how damage has to be calculated, in case the carrier is liable to pay damage. Art. 29 CMR determines that the carrier can not exclude or limit his liability if the damage was caused by his own willful misconduct (an act equal to tort) or the willful misconduct of persons he used to carry out the transportation, when they were acting within the scope of their employment.

liability of the carrier art. 17 (1) CMR: carrier is liable for (total or partial) loss of the goods and for damage to the goods occurring between the time when he takes over the goods and the time of delivery, as well as for any delay in delivery. art. 17 (3) CMR: carrier will NOT be relieved of liability (so he is still liable) by reason of the defective condition of the vehicle used by him in order to perform the carriage, or by reason of the wrongful act or neglect of the person from whom he may have hired the vehicle or of the agents or servants of the latter. Exceptions on the liability of the carrier Art. 17 (2) and (4) CMR, the carrier is relieved of liability: - if the loss, damage or delay was caused by: 1. wrongful act or neglect of the claimant, 2. by the instructions of the claimant given otherwise then as the result of a wrongful act or neglect on the part of the carrier, 3. by inherent vice of the goods or 4. through circumstances which the carrier could not avoid and the consequences of which he was unable to prevent - when the loss or damage arises from the special risks inherent in one or more of the circumstances described in paragraph 4. In case a carrier is liable for damage to or loss of the goods, the next question is, to whom he is liable. That will depend on the answer to the question at whos risk the goods were transported. And that will depend on the incoterm applicable to the contract of sale. jurisdiction Art. 31 CMR: jurisdiction. According to art. 31 CMR a plaintiff can, in case of a legal conflict arising from a contract of carriage, turn to either of the following 4 courts of law: 1. court of law parties have agreed on in the contract of carriage; 2. court of law of the country were the defendant has his place of residence/ principal place of business; 3. court of law of the country of the place where the goods were taken over by the carrier; 4. court of law of the country where the place designated for delivery is situated. However, if a party adresses a court of law in a country, the is a member state of the EU, the EEX Regulation, not the CMR Convention, should be used to determine jurisdiction. applicable law according to ECO In case the CMR Convention does not give a solution to the conflict, arising out of a contract of carriage, the applicable (national) law has to be determined. For this, the ECO can be used, in case the requirements for applying ECO have been met. Applying ECO will lead to the following result: - Art. 3 ECO: choice of law. - art. 6/8 ECO (special provisions: consumer contract and individual employment contract) will not apply, since we are dealing with a contract of carriage. - Art 5 ECO: the law applicable shall be the law of the country of habitual residence of the carrier, provided that the place of receipt or the place of delivery or the habitual residence of the consignor/sender is also situated in that country (of carrier). If those requirements are not met, the law of the country where the place of delivery as agreed by the parties is situated shall apply.