The most important objective of the Convention is to establish a uniform regulation for the responsibility of the carrier..
1.2. GEOGRAPHICAL SCOPE
As of 2009, 56 countries participated in the convention. These are Albania, Armenia, Austria, Azerbaijan, Belarus, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iran, Ireland, Italy, Jordan, Kazakhstan, Kyrgyzstan, Latvia, Lithuania, Lebanon, Luxembourg, Malta, Mongolia, Montenegro, Morocco, Netherlands, Norway, Poland, Portugal, Moldova, Romania, Russian Federation, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Syria, Arabia, Tajikistan Macedonia, Tunisia, Turkey, Turkmenistan, Ukraine, United Kingdom, Uzbekistan.
1.3. TURKEY’S PARTICIPATION IN CONVENTION
Turkey’s participation in “Contract for the International Carriage of Goods by Road(CMR)” has been accepted by Law dated 07.12.1993 and numbered 3939 and Turkey has been a part to this Convention as well as its Protocol dated 05/07/1978 dated Protocol provided that mental reservation is put on Article 4 of the Convention. (Decision of Council of Ministers numbered 94/6322 and dated 0.212.1994 was published in the Official Gazette with the number 22161 on 04.01.1995 and entered into force.).
The countries to which the CMR Convention applies apply to a single legal region linked by a single legal system. Consequently, the Convention can be regarded as a separate system as well as national legal systems.
The Convention shall apply to any transport contract for the transport of goods by road, provided that the goods are located in two different countries, at least one of which is the contracting party and the place of delivery of the goods.
This means that any international road transport of goods that begins or ends in a contracting country and carried out on behalf of someone else (self-transport is not covered by CMR) will be subject to CMR rules with some exceptions. These exceptions are:
2. funeral shipments;
3. “Furniture” transports (generally considered as home transports);
4. transport of special items;
In Article 1 of the Convention, the validity of the Convention is subject to certain conditions of different types. In this context, the concept of transport contract, transportation for fee, the necessity of the place where the goods will be delivered and the place to be delivered in two different countries, the concept of vehicle, the concept of goods are handled separately.
Compensation is not payable if damage or loss is caused by incorrect delivery, neglect of protection, incomplete documentation, defective packaging, incorrect heat, or no cash collection on delivery.
IMPORTANT CMR RULES
DOCUMENT REQUIREMENTS: CMR TRANSPORTATION CERTIFICATE
The contract of carriage shall be confirmed by the making out of a consignment note. The absence, irregularity or loss of the consignment note shall not affect the existence or the validity of the contract of carriage which shall remain subject the provisions of this Convention.
There is no specific format for the CMR Transport Certificate, but a generally linked sales note from various sources is used. The CMR does not specify clearly who will issue the note; In practice it is usually regulated by the road carrier.
However, most of the information is related to the exporter and the exporter is responsible for the accuracy of this information. This would also hinder a common but not-so-common practice, such as the fact that the note is issued long after the goods are transported and sometimes by a person who is not the first carrier of the CMR. In cases where the shipper does not enter the information, the shipper does so as his agent on behalf of the sender who will be responsible for the accuracy of the information shown.
Since it is sufficient that only one of the countries crossed during transport is a party to the Convention, it must be notified on the transport document to the other non-Party country that this Convention applies.
A. 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,
ğ) The number of packages and their special marks and numbers,
h) The gross weight of the goods or their quantity otherwise expressed,
ı) 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.
B. Where applicable, the consignment note shall also contain the following particulars:
a) A statement that trans-shipment is not allowed;
(b) Then 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.
C. The parties may enter in the consignment note any other particulars which they may deem useful.
The CMR Convention states that the transport document must be issued in 3 originals. The first is arranged for the exporter, the second to be shipped with the goods, and the third to remain with the shipper. The CMR transport certificate is not a rationale document, but it is of great importance as evidence. For this reason, it should be kept for at least one year.
Until the 2nd copy of the transport document is delivered to the buyer, the right to make changes such as the abandonment of the transport and the change of the address of the recipient’s name belongs to the sending party.
However, after the 2nd copy is delivered to the recipient, the carrier must follow the instructions of the recipient. In case the 2nd copy of the transport document is delivered to the buyer, the buyer does not have the right to save the goods without the 1st copy.
The CMR Transport document is signed by the installer and the carrier. The signatures may be in the form of a stamp according to the laws of the country in which the Transport Note is issued.
SUSPICIONS OF THE CARRIER
On taking over the goods, the carrier shall check:
1. The accuracy of the statements in the consignment note as to the number of packages and their marks and numbers, and,
2. The apparent condition of the goods and their packaging.
If the transporter does not have reasonable reasons to check, he may protect himself by expressing his reservations on the transport document. He must also state everything that is clearly suspicious about the goods. However, if the shipper does not express such reservations, it will be assumed that the number of parcels is declared correctly and the goods appear to be appropriate until otherwise clearly proved.
RESPONSIBILITIES OF THE EXPORTERS / IMPORTERS (SENDERS / RECEIVERS)
The exporter is responsible for:
a. Accuracy of details in CMR transport document:
The exporter is obliged to indemnify the shipper if the declared details are not correct. For this reason, the exporter should always inspect the transport document in its own arrangements or when issuing.
b. Defective packaging of goods:
The exporter is legally responsible for all consequences related to defective packaging except that the carrier is aware of the defect when taking over the goods and does not specify any reservations.
c. Preparation of all documents required by customs.
d. Claims made within the specified time:
A warning (preferably by the importer) shall be made if the damage is obvious, whereas, in case the damage is not obvious, a written warning must be given within 7 days after delivery without counting Sundays and public holidays. Unless a timely warning is given, the responsibility of proving that the damage to the goods is caused by the shipper shall be transferred to the exporter / importer. In case of delay, a warning should be given within 21 days. All claims for receivables that have not been sued within 1 year (3 years if it is allegedly intentionally unsuitable) will be strictly time-barred.
e. Dangerous goods:
The exporter must provide the carrier with precise information on the nature of the hazards associated with the transport of goods and the measures to be taken. This information should be shown in the CMR note. This note should also include a generally accepted description of the goods. If the exporter does not inform the shipper of the dangerous nature of the goods, the shipper may unload, destroy or render them harmless without any liability, and shall be liable for any loss, damage or expense incurred by the carriage of the goods.
SHIPPERS OBLIGATIONS WITHIN CMR SCOPE
The shipper is responsible for the loss, damage or delay of the goods between the date of receipt of the goods and the date of delivery. It is also generally responsible for the actions of its servants, agents and subcontractors.
Those claiming claims from the carrier due to a loss, loss or delay in connection with the goods shall be obliged to prove that such loss, loss or delay occurred during transportation. From a legal point of view, it is assumed that the transporter is responsible for the incident, unless it proves that it is not possible to prevent such consequences.
However, there are some exceptional risks that provide defense against a claim to the carrier if they are proven.
These include :
1. wrongful act or negligence of the claimant (plaintiff);
2. the instructions given by the plaintiff without the unjust act or negligence of the carrier;
3. defect arising from the nature of the goods;
4. situations which the carrier cannot avoid and cannot prevent.
A collision that is in no way a result of the carrier’s fault can be handled as an exception, but bad weather or theft situations are accepted among the risks against which measures can be taken even if the cost is very high. Defects of the vehicle are in no way covered by the exception. There are other defense facilities that apply only in special cases.
If the carrier agrees that the loss or damage is caused by one of the following situations, the exporter or importer shall be deemed to be so unless the exporter or importer proves otherwise:
1. Use of open, uncovered vehicles (if their use is expressly accepted and specified in the transport document);
2. the absence or defect of the packaging;
3. handling, loading, stacking or unloading of goods by exporters, importers or their agents;
4. some goods are prone to breakage, rusting, spillage, normal waste or damage from moths or pests due to the nature of certain goods (but may not be used if these defense vehicles are specially equipped for temperature-controlled activities) ;
5. inadequate or incomplete signs and numbers on boxes;
6. transport of live animals (provided that the transporter proves that he has taken all normal measures and complies with all special instructions given to him).
The Transporter shall be responsible for the delay if:
1. the goods are delivered within the agreed period,
the time used exceeds the permissible time if there is no agreed time, (a time shall be allowed to regulate a full load in groupage transports).
COMPENSATION PAYABLE UNDER CMR
Indemnity is calculated in connection with the price at the date and place where the goods are accepted for carriage; the price is based on either the price of the article or the market price. In the absence of such a price, the normal price of similar goods shall be taken as basis.
The carrier’s liability limit under the CMR Convention is 8.33 SDR per gross kg. (Special DrawingRights – 25 Germinal francs, which were adopted in the first agreement, were converted to 8.33 SDR with the protocol signed on July 5, 1978, which was accepted by most Western European countries). As of 16.12.2008:1 SDR = 1.53478$
= 2,4044 TL 8.33 SDR = 19,99 TL (20 TL)
In addition to compensation for loss or damage, transport charges, customs duties and other charges incurred in the context of transit transport shall be reimbursed in full in the event of loss and in full loss in case of partial loss.
If the exporter or importer proves that he or she has suffered a loss due to delay, an amount not exceeding the transportation charges may be covered.
It may be possible for the exporter to receive a higher amount of compensation under the Convention if the price statement is made, but the carrier has the right to charge a higher freight fee. This notice must be shown on the transport document.
It is also possible to declare a special interest on delivery (to compensate for losses if the goods are not present at the agreed destination) but again, the carrier has the right to charge a higher fee.
Within 30 days after the agreed time limit has expired, or if no agreed time limit has been established, the failure to deliver the cargo within 60 days of receipt of the freight shall constitute definitive evidence that such loss has been lost and the rightful holder shall assume that the freight has been lost and may claim compensation.
Although the above limits apply both to claims under the contract and claims under tort, the carrier loses the right to benefit from CMR defenses and liability limits if the loss is caused by intentional misconduct.
For example, in an action filed in this regard, an accident caused by a driver who exceeds the limits of the EU driving time rules is considered to be deliberate misconduct.
CLAIMS AND LAWSUITS
If the consignor consigns the goods with the carrier without checking the conditions, or at the time of delivery in cases where the damage and harm is clearly seen or within seven days of delivery (except Sundays and public holidays) without notification to him, this matter shall be deemed to be evidence. In case of unclear loss or damage, notification shall be made in writing.
Once the goods have been inspected by the buyer and the carrier, evidence that does not conform to the result of this inspection can only be accepted for unclear loss and damage. However, the buyer must notify the carrier in writing within seven days of the inspection (except Sunday and public holidays).
If the carrier is not notified in writing within 21 days from the date of delivery of the freight, no compensation shall be paid for delays in delivery.
When calculating the time limits in this clause, the delivery date, control date or the date on which the cargo is given to the buyer shall not be counted.
The transporter and the buyer shall show each other reasonable convenience to carry out the necessary tests and checks. In cases arising from transports made pursuant to this Convention, the court may decide to bring proceedings before the courts of the Contracting Party, as determined by agreement between the parties. In addition, the courts of these countries can be sued.
a) In places where the defendant’s habitual residence or the principal workplace or branch or agency where the contract for carriage has been concluded,
b) Lawsuits cannot be filed in places where the carrier takes the freight or is designated as the place of delivery and in other courts.
If a lawsuit is held in a court which is competent under the same paragraph or if a court has ruled on a claim, a new case cannot be brought between the same parties for the same reasons. However, this provision shall not apply if the first case is not carried out in the country in which it has been filed.
The decision of a court in a Contracting State in respect of a case referred to in paragraph 1 shall be enforceable in each of the other Contracting States as soon as the formalities in that country have been completed, if so applicable. These formalities do not allow the case to be re-examined. In cases arising from carriage pursuant to this Convention, the citizens of the Contracting Country who reside in the Contracting States or whose workplace is located in these countries cannot be asked to provide security in return of expenses.
Lawsuits arising from transports made pursuant to this Agreement shall be filed within one year. However, in cases of intentional misconduct or deficiencies deemed to be intentional misconduct by the court, this period is three years and begins on the following dates:
a) Partial loss, damage or delays in delivery, from the date of delivery,
b) For full losses, if there is no agreed time limit 30 days after the end of the agreed time limit, on the 60th day after the delivery receipt of the cargo by the carrier,
c) In all other cases, at the end of the quarter after the date on which the carriage contract was concluded.
The day the limit period commences will not be included in this period.
A written request postpones the time limit until the carrier rejects it with a written notice and returns the relevant documents. If part of the request is accepted, the period of time will resume for the disputed request.
PROVISIONS RELATED TO JOINT SHIPPING
When transport carried out by a single contract is carried out jointly by road transporters, each transport is responsible for the entire transport. The second carrier and the subsequent carriers shall agree to the agreement as they have accepted the goods and the shipment letter and under the conditions in the shipment letter.
1. The carrier who accepts the freight from the previous carrier shall give him a signed and dated receipt. He writes his name and address in the second copy of the referral letter. If necessary, the referral letter and receipt shall also include the reservation referred to in point 8, paragraph 2.
2. The provisions of Article 9 shall apply to the relations between joint transporters.
Cases concerning liability for loss, damage or delay, except in cases where a counterclaim or claim will be received in a case filed in respect of a request based on the same contract of carriage, shall be brought against only the first transporter, the last transporter, or the transporter carrying out the transport at the time the loss, damage or delay occurred. It is possible to file a lawsuit against several of these transporters at the same time.
The carrier who has paid compensation in accordance with the provisions of this Convention shall have the right to withdraw the compensation and the expenses incurred by this compensation from those who have participated in the carriage in accordance with the following conditions.
a) Whether the carrier responsible for loss or damage is paid by him or another carrier, the compensation must be borne by himself alone.
b) When loss or damage arises from the action of two or more carriers, each of them shall pay an amount in proportion to its share of responsibility, and shall be liable at the rate of transport.
c) If it is not possible to determine which carrier will be responsible for the loss and damage, the compensation amount will be shared among all the carriers as provided for in paragraph b).
If one of the transporters is unable to pay their debts, the amount of compensation to be paid shall be distributed among the other transporters in proportion to the fees they will receive for the transport.
1. After the notification of the case and granting the right to defense, if the amount of the compensation is determined by a court decision, the transporter who is faced with a request pursuant to Articles 37 and 38 cannot discuss whether the payment made by the transporter making this request is in place.
2. The carrier who wishes to obtain his / her right to receive his money back by court may apply to the competent court of the country of residence or branch or the country where his / her agent is located. All concerned carriers may be shown as defendants in the same case.
3. Decisions relating to the cases provided for in Articles 37 and 38 shall apply the provisions of Article 31, paragraphs 3 and 4.
4. In cases between transporters, the provisions of Article 32 shall apply. However, the time-out shall commence either from the date of the last court decision determining the amount of compensation payable under this agreement, or from the date of payment, if no such decision exists.
Carriers are free to agree on binding provisions among themselves, except as provided in Articles 37 and 38.
INVALIDITY OF THE CONDITIONS VIOLATING THE CONVENTION
Without prejudice to the provisions of Article 40, any provision which directly or consequently violates the provisions of this Convention is null and void. The invalidity of such a condition does not require the invalidity of the other provisions of the convention.
In particular, insurance benefits or any other similar clause in favor of the carrier or any clause that changes the obligation to prove is invalid and null and void.
APPLICATION TO OTHER TRANSPORT TYPES
The convention also takes into account different modes of transport. In addition to the general management of the transporter, CMR also sets out special arrangements for Ro-Ro or combined transport (Article 2), suburban transport (Article 3) and consecutive transports (Articles 34-40).
The CMR Convention also applies to all transport if the vehicle carrying the goods is transported by rail, sea or inland waterways (or airways) on a part of the route and the goods are not unloaded from the road freight vehicle.
However, in the event of loss, damage or delay of goods due to a situation which may only arise from other mode of transport while the vehicle is being transported in another mode of transport, the liability of the road carrier shall be determined by the compulsory national or international law applicable to the other mode of transport. If no such mandatory law exists, the CMR requirements will continue to apply.
Subsequent transports carried out by different transporters, regardless of whether they are carried by road, are covered by CMR if they are all covered by a single transport contract. The first carrier, the last carrier and the original carrier in which the damage occurred during the transportation may be held responsible of the damage, loss or delay.
APPLICATION TO CONTAINERS
CMR applies to transport in ‘vehicles” by road. These “vehicles” are motor vehicles, articulated vehicles, trailers and semi-trailers, whereas containers are not included.
An ISO container consists of ‘goods’, not a vehicle, and does not always apply when moving CMR containers from one country to another. If the container remains on ‘wheels’ during transit, the CMR will be valid, but if the container is unloaded at a port or railway terminal and transported separately by rail or sea, this will disconnect the CMR.
However, even if the CMR is not legally valid, the parties may agree to apply the terms of this convention by contract and this is done by some carriers.
In light of technological advances, since 2001, UNECE (United Nations Economic Commission for Europe) and UNIDROIT have been working on the preparation of a Protocol that will enable CMR procedures to be carried out electronically and replace the CMR transport document with an electronic document.
In maritime, airway, railway and inland waterway transports, such provisions have been added to international conventions and specific provisions for electronic data exchange have not yet been added to conventions for road transport only.
To this end, a Protocol has been drafted by UNIDROIT and a review has been carried out in order to obtain the views of the Contracting Parties. As a result of the study, most of the Contracting Parties have approved the draft.
It is planned that the CMR transport document will be prepared by using different information transmission methods including telegraph, telex, e-mail or EDI, and that such methods will be accepted as equivalent to paper-based documents.