Freight law
CMR and cargo insurance

CMR Clause Assigning Cargo Insurance Claims: Check Article 41

Review a CMR clause assigning cargo insurance claims: Article 41, invalidity, the remaining contract and burden-of-proof clauses.

BRANDAUER Rechtsanwälte
Contact person

Mag. Bernhard Brandauer, Austrian attorney-at-law

BRANDAUER Rechtsanwälte

Mag. Bernhard Brandauer assists with the legal assessment of transport contracts, cargo damage and freight claims.

22 September 2026 · Mag. Bernhard Brandauer, Austrian attorney-at-law

If a CMR clause requires the carrier to receive claims arising from cargo insurance, Article 41 CMR is the first point to check. The provision expressly declares such an arrangement void. Under the same provision, the remaining carriage contract generally continues to stand.

The exact wording and effect of the clause are decisive. An agreement that gives the carrier the consignor’s or policyholder’s insurance claims must be distinguished from a request for existing insurance information or a claim notification. Article 41 CMR also names agreements that shift the burden of proof.

This article addresses the contractual assignment of claims arising from cargo insurance to the carrier. General liability for loss or damage, CMR consignment-note records and the handling of a particular insurance claim are separate questions. The broader contractual framework is explained on the CMR and carriage contract page.

Quick orientation

Which CMR clause needs review?

Classify the wording and function of the clause. The check shows which documents should be reviewed together.

01 Question 1

What does the clause require from the consignor or policyholder?

Assignment, burden of proof, insurance information and unclear wording require different review steps.

Result

Your orientation

01

An assignment in favour of the carrier falls within the express review area of Article 41 CMR.

Preserve the clause in its original version and mark which insurance claims the carrier is supposed to receive. Compare the wording with Article 41 CMR and then review which remaining contractual provisions continue independently.

02

A contractual shift of the burden of proof must be reviewed separately under Article 41 CMR.

Record which party is expected to prove which fact and whether the clause departs from the CMR. Preserve the damage notice, consignment note, photographs, expert material and the full contractual context.

03

Insurance information and an assignment of claims must be distinguished by their actual content.

Check whether the clause requests information, evidence or cooperation only, or whether it gives the carrier a legal position arising from the insurance. The documents should show the purpose of the request.

04

Unclear wording requires a joint review of the clause, contract and actual use.

Prepare a version with terms such as assignment, claim, insurer, damage and proof marked. Then record which legal consequence the carrier seeks to derive from the clause.

Check Article 41 CMR against the exact clause wording

Article 41(1) CMR declares void and without effect any agreement that directly or indirectly departs from the provisions of the Convention. The provision focuses on the agreement and its effect. A clause should therefore be read by the conduct it requires, not only by its heading.

Paragraph 2 expressly names an arrangement by which the carrier has the claims arising from the insurance of the goods assigned to it. This gives the carrier a contractual position. Whether the clause has that effect depends on wording such as assignment, transfer, pursuing the claim in the carrier’s own name or comparable directions.

The review requires the signed contract, the applicable terms and any order confirmations. A later email may explain the context, but it does not replace preserving the version that governed the carriage.

What the invalidity of the assignment means

An arrangement covered by Article 41 CMR is void and has no legal effect as such. The carrier therefore cannot rely on that clause alone to demand the assigned insurance claims. The actual wording must still be identified before that conclusion is drawn.

The invalidity of the arrangement does not automatically remove the basis of the entire carriage contract. Article 41(1) expressly states that the invalidity of such agreements does not make the remaining contractual provisions void. Price, route, cargo and other independent rules must therefore be assessed separately.

This distinction avoids two errors. An ineffective insurance assignment does not automatically invalidate every other clause. At the same time, the fact that the rest of the contract can continue does not make the assignment effective.

Distinguish contractual assignment from insurance handling

Article 41 CMR addresses an arrangement under which the carrier is to receive claims arising from the cargo insurance. A request for information about an existing cargo policy initially describes the insurance position only. By its wording, it is not yet an assignment.

Rights that an insurer may assert from its own insurance relationship or under rules applicable after a claim settlement are a separate issue. They should not be equated with a contractual assignment to the carrier. The policy, claim notice, settlement letter and clause should be read together for this distinction.

The key question is who is meant to pursue which claim against whom under the clause. A carrier requesting a claim notification or supporting document starts from a different position than a carrier to whom the insurance claim itself is meant to be transferred.

Review a burden-of-proof clause separately

Article 41(2) CMR names, alongside the insurance assignment, any arrangement that shifts the burden of proof. A clause can therefore raise an Article 41 issue even if it transfers no insurance claim, where it assigns one party the proof of a fact relevant under the CMR and changes the ordinary evidentiary position.

The clause must be connected to the actual dispute. Record which fact is disputed, who must prove it under the contract and whether the clause changes that allocation in relation to the CMR. A label such as liability, documentation or cooperation does not answer this question by itself.

Preserve the contract together with the damage notice, consignment note, handover records, photographs, expert material and correspondence about proof. Only this context shows whether a clause describes cooperation or shifts the burden of proof.

Continue with the contract and liability review separately

After reviewing the clause, read the remaining carriage contract on its own terms. This includes the agreed service, route, delivery, instructions and records of the cargo’s condition. Article 41 CMR does not answer all of these questions.

The invalidity of an assignment also does not decide whether a claim for loss, damage or delay exists. The damage, timing, custody, causation and the other CMR rules require separate review. The carrier liability for cargo damage page addresses that framework separately.

If the clause is used together with a declared value, a special agreement or claim handling, record each provision on its own. This keeps the Article 41 issue precise without anticipating the answers to other legal questions.

Documents that support the clause review

Start with the contract version that applied before or at takeover of the goods. Add the order, order confirmation, terms, consignment note and later amendments. Mark when the clause was incorporated and whether it was changed or first raised only after the damage occurred.

Depending on the case, the insurance file includes the policy, endorsements, value details, claim notice, correspondence with the insurer and settlement letters. These documents show whether the carrier requests information, cooperation or a legal position arising from the insurance.

Arrange the documents chronologically and preserve emails in their full context. A single sentence may narrow or broaden the apparent scope of a clause, but it must not be separated from the surrounding communication.

Common errors with insurance and CMR clauses

Objecting to every insurance clause in general terms: Article 41(2) names an assignment of claims arising from cargo insurance and similar arrangements. The precise wording remains decisive.

Reading only the heading: A heading such as “insurance” or “claims handling” does not show which legal position is to be transferred.

Confusing insurance information with an assignment: A policy, cover confirmation or claim document may serve a different purpose from transferring a claim.

Extending invalidity to the whole contract: Article 41 states that the remaining contractual provisions are not automatically void.

Overlooking burden-of-proof clauses: A clause without an insurance assignment can still raise a separate Article 41(2) issue if it shifts the burden of proof.

Preserving only the clause: The contract, consignment note, insurance file and correspondence are all relevant to its scope.

What to review in the individual case

First preserve the complete contract, including the terms to which it refers. Mark every passage dealing with insurance, assignment, pursuing a claim, proof, value details and claim notifications. Record who used the clause and what action it requires from the consignor or policyholder.

Then classify the asserted consequence. Is the carrier meant to receive an insurance claim itself? Is one party expected to prove a particular fact? Or are documents requested only for claim handling? These questions lead to different reviews and should not be collapsed into one label.

A disputed assignment, a significant cargo damage claim or a clause concerning the burden of proof should be reviewed on the basis of the complete transport and insurance file. The shipping documents checklist helps organize transport records. You can receive new legal articles and updates through BRAND current legal updates.

Practical questions

Frequently asked questions about Article 41 CMR

Is every cargo insurance clause invalid under Article 41 CMR? +

Article 41(2) expressly names an arrangement by which the carrier receives claims arising from the insurance of the goods, as well as similar arrangements. A request for insurance data or documents must be distinguished by its content. The exact wording and function of the clause require review.

What happens to the rest of the carriage contract? +

Article 41(1) CMR states that the invalidity of a departing arrangement does not make the remaining contractual provisions void. Price, route and other rules must therefore be reviewed independently. This does not make the assignment clause effective.

Does Article 41 CMR also cover a burden-of-proof clause? +

Yes. Paragraph 2 also names any arrangement that shifts the burden of proof. The key points are which fact must be proved by which party and whether the arrangement changes the evidentiary position relevant under the CMR.

Is an insurer’s position after settlement the same issue? +

A contractual assignment of insurance claims to the carrier and a position the insurer may have after settling a claim are separate issues. The policy, claim notice, settlement letter and carriage contract should be reviewed together to distinguish them.

Which documents should I collect for the review? +

Preserve the contract, terms, order, consignment note, policy, value details, claim notice, correspondence and any settlement letters. Mark the clause word for word and record what action the carrier seeks to derive from it.

Discuss a freight-law matter

Briefly describe the route, the parties and the event. We will discuss which documents and next review step may be useful.

Contact

Clarify a freight-law question

Address

BRANDAUER Rechtsanwälte GmbH Giselakai 51 5020 Salzburg