In the operations of today’s transport companies, a significant portion of the services provided consists of international road transport of goods.
When it becomes necessary to determine the mutual rights and obligations of the parties to a contract of carriage (for example, in complaint proceedings or in court proceedings), the question arises as to the law applicable to the relationship connecting the parties to this contract and the court that will be competent to resolve any disputes. In this regard, however, an entrepreneur should think prospectively and secure their interests at the moment of concluding the contract by including appropriate contractual clauses in it.
Application of the CMR Convention
The fundamental act regulating civil law relations arising between the parties to a contract for the international road transport of goods in Europe is the CMR Convention. This Convention takes precedence over national law norms, and due to its mandatory nature, any contractual provisions agreed upon between the parties that are contrary to its provisions are invalid. According to Art. 1(1), the CMR Convention applies if the place of taking over the goods for carriage and the place designated for delivery, as indicated in the contract, are situated in two different countries. It is sufficient for one of these countries to be a signatory to the CMR Convention (and these are practically all European countries). It is also irrelevant whether the shipment actually crossed state borders – the content of the contract is decisive. For example, the CMR Convention will apply to a contract for the carriage of goods by a Polish carrier from Germany to Italy, as well as from Russia, which is a signatory to the Convention, to Saudi Arabia, which is not a party to it. Furthermore, for the application of the CMR Convention, it is required that the carriage be performed for reward (for payment of an equivalent sum of money), concern goods (not persons), and that specific types of vehicles be used for this purpose (cars, articulated vehicles, trailers, or semi-trailers).
The CMR Convention, however, does not apply to a forwarding contract (unless the freight forwarder performs the carriage themselves, which they are entitled to do under Art. 800 of the Civil Code), a contract for the lease of a vehicle with a driver, or to the carriage of household goods, corpses, and transport performed under international postal conventions. Administrative, technical, and tax issues, such as the rules for the transport of dangerous goods, are also regulated outside the Convention. These issues are covered by a number of other international conventions that every carrier should know. The CMR Convention regulates only civil law issues, in particular, the mutual principles of liability between the sender (consignee) and the carrier of goods.
Choice of law
However, due to the fact that the circle of countries that are parties to the CMR Convention is limited, and its provisions omit or only superficially regulate some issues related to the contract of carriage, it becomes necessary to determine the law that will be applicable in cases where the provisions of the CMR Convention do not apply or prove insufficient. It should be borne in mind that the Convention contains only 41 concise articles, which means that a number of problems must be resolved based on non-convention legal norms. Such norms may also prove helpful in interpreting ambiguous and vague provisions of the CMR Convention, such as the concept of “circumstances which the carrier could not avoid and the consequences of which he was unable to prevent” contained in Art. 17(2) of this act.
Issues not regulated by the CMR will be subject to the law indicated by the private international law of individual countries – in the case of a case being resolved by a Polish court (or another court of an EU member state, excluding Denmark), the indication in this regard will be contained in Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I). According to the content of Art. 3(1) of the mentioned act, the parties to the contract may freely choose the law that will be applied to the contract they have concluded. Thus, for example, a Polish carrier receiving a transport order from a Portuguese sender for transport in France and Germany may agree in the contract to apply Polish law to it. The choice of law may be made explicitly or result clearly from the provisions of the contract or the circumstances of the case. However, to avoid any doubts, it would be suggested that the choice of law be made through an appropriate contractual clause.
The article comes from the magazine “Logistyka” 4/2011.