In a previous blog post, I addressed the difference between the terms 'carrier', 'paper carrier' and 'freight forwarder', and why this is important in the context of the liability of these parties for cargo damage, among other things. I also considered in this previous blog post the importance of the difference between these terms for the insurance to be taken out and the coverage under that insurance. In this blog, I will elaborate on the concept of cargo damage, the role of the carrier and the evidential role of the (CMR) waybill in (international) transport.
Starting point: carrier liable for cargo damage
The basic principle in transport law is that when cargo damage occurs during transport, the carrier is liable for it. A commonly used adage regarding the carrier's role in this context is: "Good in, good out". In other words, the carrier is obliged to deliver the goods it has received for carriage at their destination in the condition in which he received them.
Suppose a Dutch carrier has received a load of televisions in good condition, but on arrival at the warehouse in Germany it turns out that almost all the televisions have large scratches (incurred during international transport). The sender of the goods must then prove that there is cargo damage. However, the sender does not have to prove the exact cause of the cargo damage.
So, in principle, in this case, the sender can suffice with (i) proving that the carrier received the televisions in good condition and (ii) proving that the carrier subsequently delivered the televisions damaged at their destination, only partly delivered the televisions at their destination or did not deliver the televisions at all.
However, the carrier has a number of legal options to get out of its liability, e.g. invoking force majeure (strict standard) or a ground for exemption (see, for example, Article 18 CMR (international), Article 11 AVC and Article 8:1099 BW).
The CMR waybill
In international road transport, the CMR consignment note plays an important evidential role in this regard (or, in relation to national transport, see Article 8:1124 BW and Article 6 AVC). Article 9 CMR stipulates that the consignment note constitutes full proof, subject to proof to the contrary, of the terms of the contract as well as of the receipt of the goods by the carrier.
Article 8 paragraph 1 CMR stipulates that upon taking receipt of the goods, the carrier is obliged, among other things, to check the external condition of the goods and their packaging. Any conspicuous (deviating) items must be noted by the carrier on the consignment note by means of reasoned reservations.
Article 9 section 2 CMR then stipulates that in the absence of any mention of reasoned reservations by the carrier in the consignment note, it is presumed that the goods and their packaging were in externally good condition at the time of acceptance by the carrier. This article thus relates to the burden of proof in cases of cargo damage, among others. The words "is presumed" imply that - barring proof to the contrary - it is established that the goods and their packaging were in a good condition at the time of delivery.
Furthermore, Article 30 CMR is also important. That article relates to the time of delivery of the goods to the consignee / place of receipt. In summary, Article 30 CMR stipulates that in case of visible loss or damage no later than the time of delivery and in case of invisible loss or damage within seven days of delivery, the consignee must make a reservation indicating the general nature of the loss or damage. If the consignee fails to do so, he shall be deemed - subject to proof to the contrary - to have received the goods in the condition described in the consignment note. Therefore, if no reservations are made by the carrier in the consignment note regarding the appearance of the goods and the goods arrive damaged at the place of delivery, but no reservation is subsequently made by the consignee regarding the damage either, then the starting point in any proceedings is that the goods were not delivered damaged (or rather, as described in the consignment note) by the carrier.
The basic principle is that the carrier is liable for cargo damage if and to the extent that the sender can prove that the carrier received the goods in good condition, but subsequently delivered the goods damaged or not at all or partially at their destination. The carrier does have several legal grounds to escape its liability. In proceedings concerning cargo damage in international road transport, the CMR waybill and the reservations made or not made thereon by the carrier will be of great evidentiary importance.
Want to know more?
Do you have questions about cargo damage or the CMR waybill? Or do you have other questions about transport law? If so, please feel free to contact one of our lawyers.