CMR delivery obstacle: unloading, storing or selling the goods

When an international road shipment cannot be delivered at the destination, the carrier must quickly distinguish between obtaining instructions, unloading and keeping the goods in custody. An unreachable consignee is legally different from an express refusal or goods whose condition makes continued storage unreasonable.

Article 15 CMR addresses an impediment to delivery after the goods have arrived at the designated delivery place. The carrier must generally ask the sender for instructions. Article 16 CMR adds rules on costs, unloading, custody and, in certain situations, the sale of the goods.

This article explains which facts should be recorded immediately, when unloading brings the carriage to an end under the CMR and why a failed delivery attempt does not by itself authorise an immediate sale.

A delayed delivery initially means that an agreed or reasonable delivery time has been exceeded. A delivery obstacle goes further. The goods have arrived at the designated place but cannot be handed over in the way described in the consignment note.

The obstacle may be a refusal by the consignee. It may also arise because nobody can be reached, access is impossible or the agreed unloading cannot take place. The guidance on delivery delays and carriage obstacles provides a useful broader overview.

The distinction matters for communication. A message saying only that delivery is delayed does not explain which decision is needed. The sender must be able to see whether an instruction about another delivery place, unloading or custody is required.

Under Article 15(1) CMR, a carrier facing an obstacle after arrival at the delivery place must ask the sender for instructions. If the consignee refuses the goods, the sender may dispose of them without producing the first copy of the consignment note.

The consignee does not automatically lose every right to delivery by refusing the goods. Under Article 15(2) CMR, the consignee may still require delivery until the carrier has received contrary instructions from the sender. The statements of consignee, sender and carrier therefore need to be placed in a clear time sequence.

Each request should state the shipment number, delivery place, arrival time, precise reason for the obstacle, condition of the goods and available options. A reply such as “please continue” is reliable only when it is clear where the goods should go, by when and under which conditions.

If the delivery place is changed, the carrier should also check whether the instruction comes from the person entitled to dispose of the goods under Article 12 CMR and whether it can be carried out safely. The guidance on forwarding orders and instructions explains how to preserve this communication chain.

Article 16(2) CMR allows the carrier in the cases covered by Article 14(1) and Article 15 to unload the goods immediately for the account of the person entitled to dispose of them. After unloading, the carriage is deemed to have ended. This is more than an organisational pause because it changes the factual and legal position of the shipment.

Before unloading, the carrier should record the condition of the goods, packages, securing, place and time. The request for instructions and the reasons why further carriage could not continue should also be preserved. This makes it possible to assess later whether the measure was covered by the delivery obstacle.

Under Article 16(1) CMR, the carrier may generally recover the cost of requesting instructions and the expenses of carrying them out. This does not apply where the expenses were caused by the carrier’s wrongful act or neglect. A detailed cost record should therefore be kept with the transport file.

The overview of the CMR transport contract is important when the question is whether the CMR applies at all. Not every domestic carriage falls under the Convention.

After unloading, the carrier holds the goods on behalf of the person entitled to dispose of them. The carrier may entrust the goods to a third party. Under Article 16(2) CMR, the carrier is then generally liable only for exercising reasonable care in selecting that third party. The selection and handover should therefore remain traceable.

Suitable custody depends on the goods. Temperature, moisture, theft protection, dangerous goods, perishability and access controls may matter. It is not enough to place the goods somewhere without further assessment. The storage location must fit the shipment.

The carrier should tell the sender where the goods are located, who has custody and which costs have arisen. The sender can then decide whether to name another consignee, arrange collection or issue another instruction. The consignee should also be informed when this is possible without creating additional risk.

Under Article 16(2) CMR, the charges due under the consignment note and other expenses remain chargeable against the goods. This does not mean that every expenditure is automatically recoverable. Necessity, amount and connection with the obstacle must be shown.

A sale is a particularly far-reaching measure. Article 16(3) CMR permits a sale without waiting for instructions when the goods are perishable, their condition warrants it or storage costs would be out of proportion to their value. The conditions must fit the goods and the actual circumstances.

In other cases, a sale may be considered only after a reasonable period has expired without contrary instructions from the person entitled to dispose of the goods and where such an instruction could reasonably be required. The carrier should therefore preserve all contact and instruction efforts before selling.

The file should contain the condition and value of the goods, storage costs, possible alternatives, contact attempts and the reasonable response period. Perishable goods may justify a short response time. Durable goods with manageable costs cannot be sold immediately merely for convenience.

Under Article 16(4) CMR, the sale proceeds after deduction of charges against the goods must be placed at the disposal of the person entitled to dispose of them. If the charges exceed the proceeds, the carrier may claim the difference. The sale procedure is determined by the law or customs of the place where the goods are located.

Recording only “consignee absent”: Preserve contact attempts, waiting time, contact persons and the actual situation at the delivery place.

Sending the instruction to the wrong person: Check who is entitled to dispose of the goods under the CMR and whether the message can be proven to have arrived.

Unloading without a condition record: Goods, packages, securing, place and time should be recorded before unloading.

Treating custody and sale as the same: Custody is the normal consequence after unloading. A sale needs the additional requirements of Article 16(3) CMR.

Charging costs as one lump sum: Instruction, storage, further and sale costs should be assigned to the shipment and the obstacle.

Treating refusal as final: Under Article 15(2) CMR, the consignee may still require delivery until the carrier receives contrary instructions from the sender.

First preserve the facts: shipment number, consignment note, arrival, delivery place, persons present, reason for the obstacle, condition of the goods and all contact attempts. Then record which instruction was given and when it arrived.

If unloading or custody becomes necessary, record the handover, new storage place, person entrusted and ongoing costs. Before a sale, examine the requirements of Article 16(3) CMR and the procedure at the place where the goods are located.

If the goods are valuable or perishable, the refusal is disputed or the person entitled to dispose of the goods is unclear, the transport file should be reviewed promptly. The guidance for consignee acceptance and reservations adds the perspective at the delivery place. Mag. Bernhard Brandauer, Austrian attorney-at-law, will discuss the next sensible steps with you.