Carriage of Goods by Road

From Max-EuP 2012

by Helga Jesser-Huß

1. Importance

Compared with other modes of transport, carriage by road is the most important in freight transport. After Daimler built its first lorry in 1896, these vehicles soon assumed the leading role in the overland transport of goods, previously the domain of railways in the 19th century. In today’s world, with its continually increasing demand for goods as well as the requirements of speed, flexibility and reliability, the lorry is still thriving because other means of transport cannot meet these requirements in just in time processes. However, concerns about growing environmental pollution and the capacity limits of the European road system have triggered various efforts to make other, environmentally sounder modes of transport more attractive, such as railways or inland waterways. This new focus will probably slow the growth of road freight. Nonetheless, for short distances and for the feeder and distribution routes in the vicinity of train stations and inland ports, as well as in multimodal transport chains, there is no alternative available, at least in the near future. In intra-European goods exchange, carriage of goods by road will not lose its dominant position, even if less polluting alternatives are promoted and some goods can be shifted to other modes of transport.

2. Tendencies in the development of private law

A variety of concepts of market organization and their evolution over time have had a decisive influence on private law rules for road transport. In the previous century, the notion of a regulated market was the dominant idea reflected in the provisions for freight traffic. Many European countries limited competition by restricting market access or prescribing prices. The main purpose of these measures was either to shield rail freight from competition or to prevent ruinous competition amongst road carriers. In principle, domestic freight business was reserved for inland companies; foreign competitors were only admitted on a condition of reciprocity, thus requiring that the carriers of the host state be allowed to provide transport services in the other country. Objective restrictions to market access receded only slowly, eventually yielding to today’s multilateral and liberal market regulations for cross-border traffic under which market access is determined according to subjective and qualitative criteria, and prices are dictated solely by supply and demand.

As noted, foreign carriers were normally barred from purely domestic business. In the European Union, cabotage, ie transport services within a Member State by non-resident carriers, was gradually introduced and only fully permitted after 1 July 1998 according to Reg 3118/93. While cabotage transport contracts do include an international dimension, they do not involve cross-border transport—the condition for application of the CMR Convention—and so the rules of autonomous national law would normally be applicable according to the principles of private international law. However, Art 9(1)(a) Reg 1072/2009 has priority and mandates the application of the host Member State’s binding provisions of private transport law to the specific contract of carriage, thereby overruling the general principles of private international law.

National carriage law is often characterized by a segmentation into special provisions for each mode of transport. But there are tendencies, to a varying degree, to adapt the national rules for carriage of goods by road to the CMR. This development received a new impetus with the allowance of cabotage. The underlying rationale was the general lack of justification for differing freight transport rules within the internal market concerning purely domestic transport services, on one hand, and cross-border freight services on the other. This rationale is also evidenced by the fact that the EU broadened the application of international treaties regarding cross-border transport of persons by rail and air to transport services within a Member State by Reg 889/2002 and Reg 1371/2007. With the introduction of mandatory rules for road haulage, national legislatures have achieved the application of those rules to all contracts concerning domestic transports, even those concluded and performed by non-resident carriers in the respective Member State according to Art 9(1)(a) Reg 1072/2009.

3. International Conventions

In 1956, efforts to achieve uniform rules for cross-border road transport had an early success, namely the adoption of the CMR. It was accomplished by UNECE, which incorporated earlier work by other organizations such as IRU, the International Chamber of Commerce (ICC) and UNIDROIT. A later Protocol to the Convention was issued in 1978 which changed from the gold standard to the Special Drawing Right as defined by the International Monetary Fund.

The CMR is an extremely successful agreement as 55 nations are member states and 41 of them have ratified the Protocol. Members include not only all EU countries but also the successor nations of the former Soviet Union, Morocco and Tunisia in northern Africa and even Iran, Jordan and Lebanon in the Middle East. More recently, Mongolia in East Asia also joined. According to Art 1(1), the rules apply to all road freight whose source and destination are in different countries as long as at least one of them is a contracting party to the Convention. Due to its far-reaching scope of application, the entirety of in- and outgoing road freight traffic of a member state is covered by these rules, provided that the carriage is regulated by contractual agreements. Geographically, its range extends far beyond the European region as the CMR is, for example, also applicable to road freight between Mongolia and China. In any event, all European cross-border carriage of goods by road is governed by this Convention, ensuring at least a basic legal framework of uniform rules, particularly with respect to liability in cases of damage to goods or delays.

Due to the overwhelming significance of road freight, the CMR has become the yardstick in the intermodal approximation of rules of law and thereby also influences the provisions applicable to other means of transport (carriage, contract of).

In addition, the model of the CMR has more or less been extended to domestic transport. The Convention has not only been a model for reforms in national transport law, as in the Netherlands and Portugal and in Germany’s Transport Law Reform Act (Transportrechtsreformgesetz), but it has also been adopted, mostly unaltered, for domestic freight in countries such as Austria and Belgium. Other member states such as Finland and Norway have implemented the Convention into national law not only for cross-border, but also for domestic road freight, thereby adapting rules of national law to the CMR. Generally, this influence is restricted to national provisions for carriage by road. Germany, however, created with the Transportrechtsreformgesetz a uniform transport law, applicable to road, rail, air and inland navigation, modelled on the CMR, which in this way also governs non-road modes of transport (carriage, contract of). In conclusion it can be stated that the CMR has indeed proved to be the benchmark for national as well as international carriage law provisions.

However, its wide acceptance does not hide the numerous shortcomings that have emerged during its more than 50 years of existence. One of them is Art 29, which states that the carrier is not entitled to claim an exclusion from, or limit of, liability according to the provisions of the Convention in cases of wilful misconduct. Regarding the standard of wilful misconduct, a uniform definition, common in other Conventions concerning transport law, is lacking; rather, the degree of fault the national court considers equivalent under the applicable national law is decisive. Furthermore, there are no provisions that make it possible to adapt the amount of liability in Art 23 or the rate of interest in Art 27 in a simplified revision proceeding. Some provisions have proven to be impractical due to their strong formalism. For example, as per Art 24 and Art 26, declarations of value and interest have to be entered into the consignment note, and the same is true for the compulsory consignment note for exoneration as per Art 17(4)(a) when using an open vehicle. As for the consignment note, electronic means are not taken into consideration either. The provisions relating to carriage performed by successive carriers (Arts 34 ff) in chapter six are so lacking in practical applicability that they are essentially superfluous. Variations in an arrangement favouring one party are inadmissible because the CMR constitutes mandatory law (Art 41). Although this ensures the far-reaching uniformity of road carriage law which is seen today, a need for individual contracts does exist, eg for special types of freight. For this reason the CMR is often considered overly rigid. Court decisions differ in the member states regarding some of its provisions because the wording of the Convention sometimes permits varying interpretations and there is no suitable procedure that guarantees a uniform construction.

In view of past experience with revisions, eg in international air transport law, the once-achieved uniformity of law quickly dissipates when only some member states are prepared to accept a revised agreement. Consequently, major reforms of the Convention have been avoided and only minor alterations have been undertaken (eg the change to account units in Special Drawing Rights introduced by the 1978 Protocol). In the meantime, however, a further Protocol was adopted by UNECE, with the support of UNIDROIT, which deals with the equivalence of electronic consignment notes as compared with paper ones (ECE/TRANS/2008-CRP.1/Annex). It entered into force on 5 June 2011.

4. Europeanization of road carriage law

The European Union has implemented far-reaching regulatory measures to ensure the orderly running of road freight traffic. As the entirety of cross-border carriage of goods by road in Europe is subject to the CMR, there is at least in this respect no need for harmonization of private law.

However, there are exceptions in the case of the already mentioned cabotage transport operations. Regulation 1072/2009 contains a clause that overrules Art 5 Rome I Reg insofar as, according to the law of the host Member State, mandatory private transport law provisions are applied to the particular contract of carriage. As this gives an incentive to national legislatures to adapt domestic freight law, the regulation thus indirectly influences national law. Consequently, a possible need for EU action is limited to the harmonization of domestic rules for freight transport. Extending the applicability of the CMR to these operations is a possible alternative although not all issues would be solved due to the incomplete nature of the Convention.

Literature

Krijn Haak, The Liability of the Carrier under the CMR (1984); Jürgen Basedow, ‘Zulässigkeit und Vertragsstatut der Kabotagetransporte. Zum Verhältnis von Marktöffnung und Wirtschaftskollisionsrecht in der Europäischen Gemeinschaft’ (1992) 156 ZHR 413; Jürgen Basedow, ‘CMR’ in Münchener Kommentar zum Handelsgesetzbuch, vol VII (1st edn, 1997); Andrew Messent and David A Glass, CMR: Contracts for the International Carriage of Goods by Road (3rd edn, 2000); Johann Georg Helm, ‘Kommentierung der CMR’ in Großkommentar zum HGB, vol VII/2 (4th edn, 2001); Jacques Putzeys, ‘L’adaption de la CMR à l’ère informatique’ [2006] Uniform Law Review 523; Krijn Haak, ‘Revision der CMR?’ [2006] TranspR 325; Helga Jesser-Huß, ‘CMR’ in Münchener Kommentar zum Handelsgesetzbuch, vol VII (2nd edn, 2009); Malcolm Clarke, International Carriage of Goods by Road: CMR (5th edn, 2009); Ingo Koller, Transportrecht (7th edn, 2010); Bernadette Kerguelen-Neyrolles, Lamy Transport, Tome 1 Route, Transport intérieur et international (2011).

Retrieved from Carriage of Goods by Road – Max-EuP 2012 on 06 December 2022.

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