CMR and the contract of carriage

The CMR does not depend on the heading of a document. It applies by reference to the actual contract of carriage. The basic requirement is carriage of goods by road for reward where the contractual place of taking over and the designated place of delivery are in different countries and at least one of them is a contracting state. The residence and nationality of the parties do not decide the issue.

The CMR also contains exclusions. International postal carriage, the carriage of corpses and removals are outside its scope. A combined transport can nevertheless remain within the CMR framework under its conditions. A sea, rail or air leg therefore does not by itself answer whether the CMR is relevant.

For purely domestic Austrian carriage, the CMR is not automatically the governing regime. The order, agreed terms and Austrian law must be examined. A useful first step is a chronological transport file covering the order, acceptance, loading, transshipment, delivery and later instructions.

The contract of carriage does not arise only when a formally perfect consignment note exists. The CMR provides that the absence, irregularity or loss of the consignment note does not affect the existence or validity of the contract. The note remains central evidence because it can record the contract, its terms and the taking over of the goods.

The CMR generally provides for three original copies of the consignment note. It should include the consignor, carrier, consignee, taking over and delivery points, the nature and packaging of the goods, the number of packages, weight, costs and customs instructions. An incomplete or inconsistent entry does not automatically establish liability, but it can make later proof more difficult.

Electronic transport records and digital proof of delivery must also be assessed. The question is whether the relevant entries, times, condition statements and declarations can be reliably reconstructed. Screenshots alone may not be enough. Preserve the original file, the communication chain and the link to the particular shipment.

The consignor must describe and package the goods so that the carriage can be carried out properly. Dangerous goods create additional information duties. At taking over, the carrier checks in particular the entries concerning the number of packages, their marks and numbers, and the apparent condition of the goods and packaging. If reasonable means of checking are unavailable, reasoned reservations should be entered in the consignment note.

Roles cannot be determined from a company label alone. A business may act as a freight forwarder towards its customer while appointing another carrier for the physical journey. The contractual chain, instructions, actual taking over and any subcontracted carriers should therefore be identified before liability is assessed.

If the person entitled to dispose of the goods changes an instruction during the journey, the content, timing and receipt of that instruction should remain traceable. This is particularly important for a changed delivery address, transshipment, customs issue or interim storage. A short written confirmation is often more valuable than a later recollection of a telephone call.

Under Article 17 CMR, the carrier is liable for total or partial loss and damage occurring between taking over and delivery. The liability also covers delay in delivery. The carrier may be relieved where the loss, damage or delay resulted from a recognised circumstance that the carrier could not avoid and whose consequences could not be prevented. The carrier generally bears the burden of proving an exonerating cause.

For loss, compensation is calculated by reference to the value of the goods at the place and time of taking over. Article 23 CMR generally limits compensation to 8.33 units of account for each kilogram of gross weight short. For damage, the relevant measure is the reduction in value. For delay, the CMR requires proof of loss and generally limits compensation to the freight.

The limits do not end the assessment. A higher value or a special interest in delivery may be declared under the conditions of the CMR. In the case of wilful misconduct or equivalent serious fault, the carrier cannot rely on the liability exclusions and limits in the relevant chapter. Whether that exception applies depends on the facts and applicable law.

Until rebutted, the consignment note can evidence the contract, its terms and the taking over of the goods. If it contains no reasoned reservations by the carrier, the CMR can create presumptions about the apparent condition of the goods and packaging and about the number, marks and numbers of packages. This makes the taking-over inspection important for every participant.

At delivery, the consignee should describe visible damage specifically. A general statement such as “subject to reservation” is less useful than details about damaged packages, missing parts, wetness, temperature deviation or packaging marks. For damage that was not apparent at delivery, Article 30 CMR provides for written notice within seven days, excluding Sundays and public holidays.

Keep photographs, packaging, delivery notes, temperature logs, weighing records, GPS or telematics data, witnesses and the complete correspondence. Each item should be linked to the shipment, vehicle and relevant time. Reconstruction from scattered files after the event is far less reliable.

Claims under a CMR carriage are generally subject to a one-year limitation period. In cases of wilful misconduct or equivalent serious fault, the period is three years. The starting point depends on the type of claim, for example delivery in cases of damage or partial loss and specific points in time for total loss. The starting date should never be inferred from a general calendar assumption.

Article 31 CMR provides specific jurisdictional options for disputes arising from a CMR carriage. These include courts connected with the defendant and courts at the place of taking over or designated delivery, subject to the conditions of the Convention. A jurisdiction clause, choice of law and mandatory European rules can affect the further analysis.

Cross-border carriage can also involve customs, market and road transport rules connected with the operation. European rules on access to the international road haulage market and cabotage concern the conduct of particular transport operations. They do not automatically determine civil liability for every cargo loss. The contract, the CMR and the actual journey must be read together.

Where a carriage covered by one contract is performed by successive road carriers, Article 34 CMR can make each carrier a party to the contract for the entire carriage. The claim assessment therefore cannot focus only on the last driver or vehicle. The complete handover chain and each condition record may matter.

For a subcontracted carrier, combine the order, instructions, handovers and condition reports. A gap between two carriers can be decisive for the cause of the damage. Businesses should not wait until a claim is rejected to ask who actually held the goods. This information belongs in the file from the first notice.

A freight forwarding contract also requires assessment of the forwarder’s contractual role and any assumption of carriage. The label “forwarder” does not answer the liability question by itself. A clear contractual chain reduces the risk that the claim is simply passed between several participants.

Start with a complete timeline. Record the order, collection, loading, intermediate stops, instructions, expected and actual delivery, visible damage and every notice to the carrier or insurer. Link each event to the available file and the person who acted.

The first review usually benefits from the transport order, standard terms or framework agreement, consignment note, delivery note, photographs, packaging records, invoices, value evidence, damage report and correspondence. Temperature data, alarms and inspection records are also important for perishable or temperature-controlled goods.

When discussing the matter with a lawyer, formulate the question precisely. Is the issue whether the CMR applies, liability during a particular period, the adequacy of a reservation, the amount of the claim or enforcement in a particular country? The clearer the question, the faster the relevant documents can be identified.