International CMR consignment notes – part 2.
The article presents the principles for correctly completing international CMR consignment notes. In practice, it unfortunately happens very often that these documents are filled out contrary to the applicable regulations, almost randomly, and this applies not only to small companies with a few tractor units and trailers, but also to the largest giants in the transport and logistics services market. Only some of the fields of the consignment notes will be discussed, i.e., those that are most often filled out incorrectly, and the consequences of which are the most significant.
The legal nature and the principles for completing international CMR consignment notes were defined in the Convention on the Contract for the International Carriage of Goods by Road (CMR) drawn up in Geneva on May 19, 1956, hereinafter referred to as the Convention.
Legal nature of the CMR consignment note
Article 4 of the Convention states that the consignment note is evidence of the conclusion of the contract of carriage; the absence, irregularity, or loss of the consignment note does not affect the existence or validity of the contract of carriage, which is nevertheless subject to the provisions of this Convention.
Article 6 lists the data that should or may be included in the consignment note, and Article 9 further defines its evidentiary function. It follows that, in the absence of proof to the contrary, the consignment note is evidence of the conclusion of the contract, the conditions of the contract, and the receipt of the goods by the carrier.
The cited regulations prove that the consignment note is not a prerequisite for the conclusion of a contract of carriage, and its absence does not prevent the concluded contract from being treated as a contract of carriage subject to the provisions of the Convention. Thus, irregularities in the preparation of the consignment note do not cause the invalidity of the contract of carriage nor do they prevent it from being treated as subject to the provisions of the Convention. One of the basic functions that the consignment note fulfills is the evidentiary function, however, it achieves its full value only “in the absence of proof to the contrary”. In other words, the consignment note enjoys a presumption of truth, which means that if no other (contrary) evidence is presented, it must be assumed that a contract of carriage was concluded with the content resulting from the consignment note.
Parties to the contract for the international carriage of goods by road – fields 1 and 16
There is no doubt that the parties to an international contract of carriage are the sender and the carrier, entered respectively in fields 1 and 16 of the CMR note. The CMR Convention does not contain a definition of a sender. However, in accordance with the generally accepted position of jurisprudence and doctrine, the sender does not have to be the owner or independent possessor of the shipped consignment. It is sufficient that they have a specific legal title to it.
Correctly entering the sender’s and carrier’s data into the consignment note is of significant importance for pursuing claims from an international contract of carriage, as well as claims from a carrier’s civil liability insurance contract. Regarding claims from a contract of carriage, it should be pointed out that the provisions of the Convention do not exhaustively define who is entitled to pursue compensation claims against the carrier. Article 13(1) only states that if the loss of the goods is established or if the goods have not arrived after the expiry of the period provided for in Article 19, the consignee may, in their own name, enforce the rights arising from the contract of carriage against the carrier.
The article comes from the magazine “Logistyka” 3/2011.