Obstacles in the transport part. 2

Last week I discussed the Polish regulations pertaining to the situation, when the carriage over the originally agreed conditions, it is not possible. This time the entry is devoted to the same issue in the CMR Convention uregulowanemu.

Inability to comply with transport

Unforeseen events can occur in the transportation of domestic and international. It is not surprising, that also in the CMR Convention decided to enter the appropriate records, that relate to this issue. These regulations are similar to the Polish regulations, Though they differ in some important details.

According to art. 14 Convention in case of impossibility of performance of the contract of carriage under the conditions specified in the bill of lading the carrier shall ask for instructions to the person entitled to dispose of the consignment. Convention does not provide, by a person entitled to give such instructions in advance, hence, in any event the carrier shall ask for instructions at the time of the circumstances, which do not allow the execution of the contract of carriage.

The doctrine is not unanimous in this respect, but a large part of it is of the, that the inability to perform the contract of carriage should be objective, ie. occurs only, the performance of an obligation by the carrier would not be possible also in the case, He had hired to help another person, eg. in the case of vehicle damage. On the other hand we must remember this, that the provision is not about the impossibility of performance at all, but the impossibility of its performance under the terms of the agreement.

The Convention does not define specific events, which can be treated as an obstacle in the carriage, but quite a lot of examples brings the doctrine and jurisprudence, which indicates the m.in. the strikes on the road, excessive weight or size of vehicle makes it impossible to reach the destination, loosening of safeguards goods, etc..

Taking into account that, that now there is almost always in direct contact with the driver using a mobile phone, usually obtain the appropriate instructions to the person entitled shall not constitute a problem. Do not, however, each statement must be made by the carrier. It is because, that it should fulfill the conditions described in art. 12 paragraph. 5 point b of the Convention, therefore its implementation should be possible at the time of arrival instructions to the recipient and should not interfere with the normal working of the carriers or prejudice the senders or consignees of other consignments. But there are doubts, whether the carrier can rely on those circumstances that justify refusing to instructions, if his side is responsible for the inability to perform the contract of carriage to the originally specified conditions. In the jurisprudence of this issue has not yet been clearly prejudged.

Transportation to the changed conditions

There are - albeit sporadically - situations, in which to ask for instructions is not possible or even apply for them, instructions are not transferred to the carrier. In this case, the carrier should examine, whether circumstances allow the performance of the carriage on terms different from those provided for in the bill of lading. If it is possible, according to art. 14 paragraph. 2 Convention the carrier shall take such measures, they seem to him to be in the best interest of the person entitled to dispose of. Catalog of such actions is not exhaustive and there may be indicated, eg. transfer of load to another vehicle, carry a different route in the event of a strike at the customs station, where the merchandise was originally supposed to be checked, delivering the goods to another plant recipients, etc..

In the jurisprudence of foreign courts, doubts have arisen, or in case of overloading in this case, the goods of another carrier to the vehicle operator is responsible only for reasonable choice of the person, or to take full responsibility as a subcontractor. The doctrine seems to be heading toward the latter view.

Obstacles on the destination

Unlike the Polish transport law does not treat the CMR Convention, including the impossibility of performance of the carriage and the failure of the goods to the consignee as specified in the consignment. The latter is regulated separately art. 15 Convention. Under this provision, If on arrival at destination will be obstacles to its release, the carrier shall ask for instructions from the sender. In addition, indicated, that if the consignee refuses the goods, consignor has the right to dispose of them without having to present the first copy of the bill of lading. Commentators suggest, therefore,, that to contrast with other obstacles on the destination of such. absence of the recipient at the address in the sender must provide a copy of the first carrier bill of lading, to be able to tell it to change the place of delivery. This solution is widely regarded as impractical, but despite their different views on "bypass" this requirement, up to now not acceptable in the case law formulated concepts to waive this condition.

Art. 15 paragraph. 2 Convention recipient acknowledges the right to change its position in the receipt of goods - unless the carrier has not received contrary instructions from the sender, the recipient may request delivery of the goods, even if you have refused to receive.

The landing and sale of a commodity

According to art. 16 paragraph. 2 Convention in case of impossibility of performance of the contract of carriage on the originally agreed conditions or obstacles to the release of goods after their arrival at destination, the carrier may immediately unload the goods for the account of a person authorized. In this case, the carriage shall be deemed terminated. Literal wording of the provision indicates, that the land could be completed without recourse by the carrier for instructions. However, it should be interpreted in the spirit of the whole of the Convention and the obligation incumbent on the carrier, the special care of the commodity. For this reason, quite commonly accepted, in principle, if special circumstances are not supportive for a different procedure, unloading of goods can only occur in the absence of instructions from the person entitled and the lack of ability to provide an alternative mode of transport.

After unloading the carrier is obliged to the supervision of the goods, may, however, entrust it to another person and to the extent responsible for the fault in the selection. The costs of storing the goods should be covered by a relevant authority and shall be charged for shipping encumbrances.

According to art. 16 paragraph. 3 Convention carrier is entitled to sell the goods. Again, the reservation must be made prior, that this option may normally be considered only if, the carrier can not possibly provide an alternative means of delivery of goods. For sale at the Convention is directly, that it can be done without waiting for instructions only, if this is justified by the properties of the product (perishable goods), his condition, or when the cost of storing the goods are disproportionately high in relation to its value. In other situations sale is possible only in the absence of instructions in due time to the person entitled.

The amount earned from its sales to the person entitled after deducting the expenses chargeable on the goods. Where the amount of the sale are insufficient to cover these costs, carrier is entitled to the difference.

Reimbursement of the carrier

Art. 16 paragraph. 1 Convention gives the carrier entitled to reimbursement of costs incurred in requesting his instructions or their implementation, provided that such expenses were caused by client. Just as in the Polish carrier transport law loses the right to costs only if their culpable behavior. When an obstacle arose from the circumstances, the carrier is liable for such. damage to the vehicle, but there are those circumstances caused by the carrier, costs indicated in the art. 16 paragraph. 1 recoverable.

There were considerable doubts as to, which falls within the scope of costs, which may claim reimbursement of the carrier. From the literal wording of the provision is clear, are merely the costs associated with obtaining and executing the statement. What about the cost of performance by an alternative carrier transport, referred to in art. 14 paragraph. 2? Some courts allow such reimbursement based on the records of the Convention. In other places, indicate the, that the carrier may seek reimbursement under national law.

The liability of the carrier

There is no doubt, that violation of the provisions of Article carrier. 14-16 CMR generates its responsibility. Provisions of the Convention, however, do not introduce a separate liability regime. Thus, if a carrier violates the provisions of these regulations and as a result of the damage occurs in shipment or a delay in the carriage, carrier shall bear the responsibility of the general principles set out in art. 17 Convention. In other cases it will be necessary to refer to the applicable national law. In this case, there will be no restrictions on the amount of compensation, and the carrier may be required to pay an amount in excess of the value of the cargo (although such cases can occur sporadically).

Concluding Remarks

The main motto of the carrier in case of obstacles in the carriage should be in constant contact with the person entitled. In many cases, excessive initiative by the carrier, which is considered, that he can cope with obstacles (np. through self-reloading of goods, which fell from the vehicle) may produce counterproductive and expose the carrier to liability for damages.