The conclusions of Mrs. Bon-Garcin, President of the Commission of Legal Affairs of the IRU and scientific contributor to the Institute of International Transport Law (France)

CONCLUSIONS

“If one could consider that, within this huge market extending from Stockholm to Gibraltar and from Dublin to Athens, an identical system governs the issues raised by the movement of goods, what progress would we have made in uniting a great single market” – those were the words of Professor Mercadal at a seminar organised by the IRU and the IDIT as early as 14 May 1998 and devoted to the CMR as national legislation.

More than ever, legal standardisation tools are indispensable to a sector which represents a major part of the European economy. Indeed, with all its related sectors, transport contributes up to 10% of the EU’s GDP and employs a total of over 10 million people. As for road transport, there have been many developments since 2001, in particular due to the fact that the 25 Member State Union is far different from its former membership of 15 and that modern transport management is rapidly changing, partly due to new technologies. The modal shift policy remains unrealistic to date since 85% of all goods carried (in tonnes) travel distances of less than 150 km, 88% travel less than 250 km and only 1-2% travel distances of over 1000 km . Therefore, road transport therefore has a bright future before it. Does the same apply to the CMR?

The primary objective of the drafters of the CMR Convention was – as expressed in the Convention preamble – to “standardize the conditions governing the contract for the international carriage of goods by road, particularly with respect to the documents used for such carriage and to the carrier's liability”. Fifty years after its birth, the Convention has reached maturity and its geographical scope has considerably widened to include 47 signatory States at the present time . Thus the CMR governs international transport operations not only throughout the European territory, but also in Maghreb countries and Asian countries bordering Europe.

What lessons can be drawn from this seminar? The first is that for decades, the CMR has demonstrated its ability to regulate major civil law issues relating to goods transport by road (I). The second is that everyone agrees that it should continue doing so as long as possible, regardless of all past and future developments on the economic, technical and social planes. What must be done to enable the CMR to pursue this mission? (II).

 I- The CMR – a Successful Convention

The CMR Convention owes its success to its remarkable stability (A) and to the quality of its text which strongly influenced both national and international legislation (B).

 A- A Remarkably Stable International Convention 

The need for legal certainty through the standardisation of laws arose, following the establishment of the first rail links in the 19th century. The first international convention for goods transport by rail was thus adopted on 14 October 1890. It was followed by other conventions, notably for sea and air transport. Although the CMR is not the latest convention , it is nevertheless more recent than conventions governing other transport modes which – this might explain that – have recently been (for the past ten years) or are about to be the subject of in-depth review. This applies to the railways where the Vilnius rules adopted in 1999 have amended the COTIF Convention by introducing the principle of contractual freedom into a hitherto closed area. This applies equally in air transport law, where the Montreal Convention, in force since May 2004 in the European Union, has replaced the Warsaw Convention which was slightly outdated. As for sea transport, a major project for an instrument on goods transport partly or fully by sea is currently being discussed under the aegis of UNCITRAL, as Professor Philippe Delebecque explained this morning .

The CMR’s remarkable stability, as pointed out by many speakers, is partly due to the legal certainty afforded to contracting parties, but also to its particularly strict revision procedure, as stressed by Mr Capel Ferrer. Indeed, in accordance with Article 49 of the Convention, the latter may only be amended in the framework of a reviewing conference to be requested by a Contracting Party from the Secretary General of the United Nations, who may only convene such a conference provided that 25% of Contracting Parties concur with the request. According to authorised doctrine, a reviewing conference would only destroy this standardisation effort. For instance, the wonderful consensus which had accompanied the inception of the Warsaw Convention broke down completely when amendments had to be made to the text due to developments in air transport. Finally, so as to avoid certain Contracting Parties from being tempted to amend the CMR in transport operations between themselves, the CMR Convention precludes any special agreement between two or more Contracting Parties (Article 1.5), as it prohibits any stipulation which would directly or indirectly derogate from its provisions (Article 41), except for recourse between successive carriers (Article 40).

B- The CMR as a Legal Model

Several European countries such as Austria or Denmark have integrated the CMR into their internal legal orders, or have drawn inspiration from it when reforming their legislation (like Germany). Some countries opted for application “as is” of the CMR Convention rather than reproducing the content of each article, as has been the case in Belgium since 10 July 1999 – as Ms Kathleen Spenik explained – thereby guaranteeing greater uniformity. This standardisation of road transport legislation makes carriers’ lives easier since they no longer have to wonder which legal system governs their contract; it also greatly facilitates cabotage. Indeed, although cabotage has been liberalised since the European Regulation dated 1/01/1993, provision of this service is still subject to the law of the country where it is carried out. This applies in particular to prices and terms governing contracts of carriage and to vehicle weights and dimensions. One therefore appreciates the practical problems of implementing cabotage and the enthusiasm of doctrine and of some transport professionals to introduce the CMR Convention into the national legislation of Member States . However, as we saw from the presentation given by Ms Marie Tilche, this is not the case in France. This resistance is based firstly on the French Commercial Code which requires, under penalty of lapse of rights, that a justified protest be sent within three days of delivery. Although French case-law has somewhat relaxed this formalism, the CMR does not require anything of the sort and only sanctions omissions on the consignee’s part with a presumption of correct delivery.

Secondly, the damage compensation system foreseen by the CMR is more generous for carriers’ customers, which leads to higher insurance premiums . It is also interesting to note that the CMR also served as a model to draw up the OHADA Uniform Act on Contracts for the Carriage of Goods by Road which entered into force in 16 African countries on 1 January 2004. As observed by Mr Czapski, this may raise some conflicts of jurisdiction if an African country having acceded to the CMR also accedes to the OHADA Uniform Act or vice versa. Similarly, the latest version of the Uniform Rules Concerning the Contract for International Carriage of Goods by Rail draws on some provisions of the CMR, whereas railway law had somewhat influenced the drawing up of the CMR (the presence of COIT and UIC members as observers might well explain this), in particular concerning the liability system or transport operations carried out by successive carriers.

Finally, we were pleased to hear from Professor Malcolm Clarke that English judges are no longer hostile to the CMR and that they now apply it rigorously and have become “good European citizens”, whereas Mr Ghislain de Monteynard, the Chief Clerk of the French Supreme Court of Appeal, noted that the CMR’s great qualities make it difficult for a dispute based on any gaps in the CMR to emerge. 

II- Safeguard Measures

Although the CMR was remarkably well drawn up, its text does not escape some ageing, especially in relation to the development of new technologies (A)’. On the other hand, one observes varying interpretations according to national legal sensitivities which are detrimental to the standardisation of rules governing international contracts of carriage. Therefore, one should promote uniform interpretation of the CMR (B)’.

A´- Modernisation of the CMR

Which items should be modernised?

Professor Putzeys presented two notable developments over the past 50 years. The first is a technical one concerning new communication tools between trade operators. The second relates to the dissociation currently witnessed between contracting parties and those who actually carry out the transport operation, whereas the CMR was designed with an actual sender of the goods, an actual consignee and an actual carrier connecting these. Hence, the consignment note no longer only plays the probative and informative role assigned by the CMR; the parties to a contract of carriage also see it as a tool to trace both the vehicles and the consignment. It therefore became necessary – as currently taken on by the IRU Commission on Legal Affairs under the leadership of Mr Sanchez Gamborino – to work out a new model consignment note to replace the one already drawn up by the IRU in 1976, to serve as a basis for the future drafting of the electronic consignment note. This should also serve to improve the situation of successive carriers.

As for the electronic consignment note, although it is technically operational – as brilliantly demonstrated by Messrs Marteen Claringbould and François Lespagnon – the problem is elsewhere. Indeed, contrary to other international conventions such as the Montreal Convention on air transport which foresees that “Any other means which preserves a record of the carriage to be performed may be substituted for the delivery of an air waybill” (Montreal Convention Art. 4.2), the CMR has not foreseen a similar provision. To introduce an electronic consignment note as possible supporting evidence to the consignment note, there are two possibilities. The first is that foreseen in CMR Article 49; however we have seen earlier that this is too dangerous. Moreover, the task is only to complement the CMR, rather than to amend it. Therefore, it seems more reasonable to review the second possibility, that of an additional protocol such as that adopted on 5 January 1978 which substituted 8.33 SDR for 25 gold francs. . However, as Professor Jacques Putzeys explained, there are currently two competing projects: one authorising and regulating the use of electronic consignment notes, and the other merely authorising their use.

Should there be further amendments to the CMR?

It is acknowledged that the development of container transport has made article 1.2 obsolete and that article 2 still raises numerous questions regarding multimodal transport. Some also denounce the incomplete nature of the CMR. Indeed, although the CMR settles many issues, it does leave it up to the contracting parties to plan certain operations. Thus the CMR does not explicitly cover ancillary activities to transport such as packing, labelling, loading, securing, stowage or unloading, although it mentions these in the framework of the carrier’s proving that damages resulted from one of the risks listed in CMR Article 17.4 so as to fully or partly relieve him from liability. The same applies to defective packing or to faults committed during operations prior to or following transport, if carried out by the sender or consignee or persons acting on their behalf. This gap is indeed fully justified since the main operation for which the carrier is liable is transport, where related or ancillary operations may be carried out - according to the wishes of the parties or to certain national regulations - either by the sender, the consignee, the carrier or a third party. Nor does the CMR settle the issue of vehicle immobilisation during loading or unloading operations, and particularly who should bear the financial burden of such waiting time.

Similarly, the CMR has no provisions governing the setting of carriage charges or their terms of payment. As for payment securities, CMR Article 13 does foresee a possessory lien; however, it does not specify whether this guarantees all claims relating to the shipment or only the amounts personally due by the sender. Indeed, this issue is all the more sensitive in France since our carriers have a formidable weapon at their disposal to obtain payment of their claims, in the form of direct action as foreseen in Article L.132-8 of the Commercial Code, a tool which their European colleagues envy them. One can only advise carriers, as Mr Frédéric Letacq has done, to integrate a provision granting jurisdiction to French courts in their contract. Indeed, as explained by Mr de Monteynard, in a judgment of 24 March 2004 which attracted much attention, the Supreme Court of Appeal was clearly found in favour of the applicability of “direct action” to international transport operations.

Are these gaps of sufficient concern to consider complementing the CMR on these various issues, whereas its drafters deliberately opted for a middle-of-the-road approach so as to reach a delicate balance between State intervention and freedom of trade?

Moreover, is it really shocking for a legal instrument to be complemented by general conditions emanating from the parties to a contract of carriage ? For the sake of the principle of contractual freedom and in a free economy, the answer has to be no. The problem is that, despite the nullity of stipulations contrary to the Convention, the CMR does not have provisions governing the opposability of general conditions of carriage to persons entitled to dispose of the goods. Now national legislation varies, some regulations being more restrictive than others by subjecting the opposability of contractual terms not only to informing the other contracting party, but also to the latter’s explicit agreement thereto. On the other hand, leaving it up to the parties to settle some stages of the transport operation does not favour the desired standardisation.

In our opinion, diverging interpretations of certain CMR provisions are more awkward in that they lead to legal uncertainty which weakens the Convention.

B - Fostering Uniform Interpretation

These differences are sometimes due to an unfortunate wording of some provisions of the CMR, obviously including the famous Article 29, as Mr Otmar Tuma explained, which leaves national judges free to define the notion of default equivalent to wilful misconduct. Thus certain countries equate unintentional gross negligence to wilful misconduct, as long as it indicates a degree of incompetence, whereas others support a literal and restrictive interpretation of Article 29, whereby the carrier may not avail himself of compensation limits only if he has knowingly and consciously committed gross negligence. It is therefore better for a carrier to be judged by the jurisdictions of the latter countries, at least on this issue. Now the CMR does facilitate “forum shopping” by offering a wide choice of competent jurisdictions, as Mr Grignon Dumoulin explained. Indeed, according to CMR Article 31.1, the competent jurisdiction in case of dispute may be that designated by the parties and/or that of a country within whose territory the defendant is ordinarily resident or has his principal place of business (a) or that of the place where the goods were taken over by the carrier or of the place designated for delivery (b) . 

Mr Waldemar Czapski also gave us numerous examples of breaches of the CMR. So as not to offend anyone, I shall refer to a judgment in French case-law which requires the carrier to check the consignment, thereby denying him any possibility of being relieved of liability even though he did not perform this operation in the eyes of the CMR. These loose interpretations and divergences are all the more awkward since it is extremely difficult, even today, to be aware of all judgments and doctrinal opinions issued in all contracting parties.

Given that in such fields with considerable economic impact, it is all the more necessary not only to follow the same rules, but also to ensure their uniform interpretation, are there means to avoid or mitigate this recurring problem?

Firstly, as some have recalled, there exist uniform interpretation techniques. Thus Article 31 of the Vienna Convention on the Law of Treaties stipulates that a treaty “shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. Article 32 of the same Convention foresees supplementary means of interpretation, such as e.g. the preparatory work of the treaty and the circumstances of its conclusion. Another solution might be to turn to CMR Article 47 which foresees that any dispute relating to the Convention’s interpretation or application may be referred for settlement to the International Court of Justice at the request of the Contracting Parties. However, to date this provision has remained a dead letter. Indeed, one can hardly imagine a State referring a dispute to this jurisdiction merely because the courts of another Member State have issued a judgment which seems contrary to a provision of the CMR Convention.

Should one go further – as some speakers suggested – and forcibly impose the CMR through a Community regulation?

While wishing the CMR a bright future and recalling that the responsibility of political bodies, economic circles and lawyers was to contribute to the implementation of a simple regulatory framework fostering mobility without barriers, Mr Jacques Barrot, Vice President of the European Union and EU Transport Commissioner, did indeed open the debate on the EU’s role in relation to the contract of carriage, while until now it had been mostly interested in the operating conditions of carriers’ activities. It is also true that the EU is currently working on a project entitled “Integrated Services in the Intermodal Chain” (ISIC), as introduced by Professor Delebecque.

Would it be desirable for the EU to join the IRU and to become a party to the CMR, as it did in the field of air transport?

Will such a strategy to influence international bodies or instruments be sufficient at a time when national legal instruments also require adjustments?

Finally – and this is the last issue, which alone could be the subject of a future seminar –, despite the subsidiarity principle, is it normal to entrust national authorities with adjusting their private law instruments to European objectives ?

Isabelle Bon-Garcin
Associate Professor at the Law & Political Science School, Lyon2 University
IDIT Scientific Director
President of the IRU Commission on Legal Affairs

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