Driver, carrier or sender – who and when is responsible for overloading in international transport?

First of all, we should distinguish between two types of such situations.

In the first case, the carrier knew or may have had justified suspicions that the vehicle was overloaded. In this situation, unfortunately, the costs of a ticket and additional expenses (e.g. transshipment) are incurred by the carrier.

When does it happen? For example, when you have a van with GVWR of 3.5 t, which, according to its registration certificate, weights 2300 kg, and the weight of the cargo is yet additional 1400 kg – this weight is stated both in the CMR document and in the transport order form. So, in case of an inspection, no defence will be effective because the only thing the carrier had to do was to add the weight of the empty vehicle to the weight of the cargo to know that the GVWR was obviously exceeded by at least 200 kg.

In such a case, when departing from the point of loading (or even earlier, when accepting the transport order) the carrier knew that the GVWR was exceeded and knowingly broke the law. This situation leaves no room for an explanation: the carrier is 100 percent in fault.

Additionally, as mentioned above, such a situation may have more serious consequences than a ticket and need to transship. For example, in Germany, the inspecting authority may determine that the carrier knowingly and intentionally violated the law to achieve bigger profit by using one vehicle instead of two or instead of a bigger vehicle (you can find out more about the consequences in my previous article).

Carrier will not get away with a fine

And, what if the weight in the registration certificate is 2300 kg, and the carrier loads additional 1100 kg? In theory, it seems OK. Some time ago, I drove a van which was packed to the rafters. On the border (Rajka), I persuaded (using my sense of humor) a Hungarian border guard that it was no point in weighing my vehicle because when adding 5 different CMRs to the sprinter’s mass, as in the registration certificate, it would be exactly 3485 kg. The guard burst out laughing and let me go, though we both knew the vehicle was heavily overloaded. Unfortunately, in such a case, the responsibility lies fully with the carrier. It is well known that apart from the weight indicated in the registration certificate, we should add the mass of the fuel (~50 kg), of the driver (~80 kg) and additional items in the vehicle: maps, laptop, navigation, driver’s luggage, travel cooker, food, water etc. They will easily make an additional 200 kg.

Sometimes, the vehicle may be weighted immediately after loading (for example, if loose materials are transported). If the result shows that the GVWR is exceeded, the sender should be immediately notified and asked for instructions. If the instruction is other than “unload” – for example: “we will pay the extra amount but take the cargo as it is” – again, all the consequences will be suffered by the carrier who has knowingly decided to break the law.

Remember that you do not have to fulfill every instruction of the sender (customer). The instruction given to the carrier must meet the requirements stipulated in Article 12(5)(b) of the CMR Convention. First of all, it should be feasible (in a legal way!) at the moment you receive it. Additionally, it should not disrupt the normal functioning of the company. The instruction to transport the cargo with an overloaded vehicle does not meet these requirements.

There is also another important issue. Sometimes the sender (customer) would say: either you take it as it is or we cancel the order. The carrier may feel somehow forced to provide the transport service because it is Friday afternoon; the load should be transported to Poland; if the driver does not get home/take a rest, he will quit; it is too late to find another cargo and so on. I really understand how difficult such decisions are in practice. The only (legal) answer that can protect you against a ticket during inspection is to demand that the quantity of the goods loaded does not exceed the weight stated in the order so that you can transport them in compliance with the law. If the carrier does otherwise, he is responsible for the overloading too.

We can sum everything up in a few simple conclusions:

– I knowingly accepted the order, being aware that the quantity stated in the order form would lead to overloading the vehicle – I broke the law to gain profit; I am fully responsible for this situation.

– I accepted the order, being aware that after loading the goods, as described in the order form, the total weight will be very close to the maximum vehicle mass. So, I knew about the risk of overloading and I took it – I am fully responsible for this situation (if the weight of the cargo really does not exceed the weight stated in the order form).

– I accepted the order, but more goods were loaded (or the number/amount of the goods was correct but I discovered that the cargo weighted more than it should). I notified the sender about this fact, and he offered me to pay more if I agreed to take it. I accepted his proposal – I knowingly broke the law to gain profit – I am responsible for the overloading (however, in this case, the problem of additional costs that may be incurred during inspection – such as using an additional vehicle and transhipment – is not so crystal clear).

Documents are fine… and the vehicle is still overloaded

The second possibility is when, in theory, according to the documents, everything should be OK, however, during the inspection it turned out that the vehicle with the load was too heavy.

This may happen only if:

a) the weight of the cargo is nowhere to be found in the transport documents, and the goods turn out to be heavier than it was stated in the order form, or 

b) the weight of the cargo indicated in the transport documents (e.g. CMR) is lower than the actual weight.

Besides, to hold the sender liable, an additional logical condition has to be fulfilled: the difference between the actual weight and the one defined in the CMR document has to be bigger than the difference between the actual vehicle weight and its GVWR. So, the vehicle has to be overloaded by less than the difference between the actual weight of the cargo and the one defined in the documents.

Let’s explain it simpler with the following example:

The sender stated in the CMR that the weight of the cargo was 23,500 kg, the cargo actually weighted 25,500 kg, and the whole vehicle during inspection weighted 41,500 kg, while its GVWR was 40,000 kg. It means that, if the weight of the cargo was really in accordance with the CMR, that is 23,500 kg (two tonnes less than it actually was), the whole unit would be 39,500 kg. The difference between the weight in the documents and the actual weight was 2000 kg, and the vehicle was overloaded by 1500 kg.

In such a situation, we can hold the sender (customer) liable for the loss. However, you should remember that even in such a case, a ticket during the inspection will be given first to the driver or the carrier, or both of them. There is nothing to argue about – I have never heard of a situation when a ticket was issued directly to the loader/sender. And, it is not surprising –life shows that it is easier to punish those that you have at hand.

What does CMR convention say?

It is worth mentioning that lawyers in the European Union have very different views on what the carrier should check during loading and what the scope of his responsibility is. Some lawyers claim that it is the sender who is fully responsible for loading (because there are no legal provisions which will expressly place responsibility on the carrier). Others would say that the carrier is absolutely responsible to check if the vehicle is properly loaded. The view that the carrier is responsible for loading to the extent to which he is able to check it “with the naked eye” seems the most reasonable.

Let’s analyze the provisions of the CMR convention which are within the scope of our interest.

Firstly, does the CMR consignment note have to contain the information about the weight? Article 6 of the CMR Convention says that:

And, what if – as described in the example above – due to the wrong weight put in the CMR, the vehicle is stopped and the driver/carrier gets a ticket? The answer to this question can be found in Article 7 of the CMR Convention:

So, if “the gross weight of the goods or their quantity otherwise expressed” contained in the CMR document is “inadequate or insufficient” (for example, underestimated as in our example), it is the sender, rather than the carrier, who is responsible for the losses that this entails. Here, those more curious would ask: what if the CMR document was filled in by the driver instead of the sender? The answer is given by the next point of Article 7 of the CMR Convention:

Another question arises: is the carrier obligated to check the actual weight of the goods when taking over the goods? 

The answer can be found in Article 8 of the CMR Convention:

Even considering the broader interpretation of letter a), it can be assumed that if the weight results directly from the number of items, the carrier should count them. For example, if the CMR document states that there are 1750 boxes x 15 kg, and the weight is 24,000 kg, it is clearly something wrong with it (1750x15kg = 26400 kg).

Notice! – there is also point 3 in this Article, stipulating that:

It transpires that the carrier is obligated to check the gross weight of the goods only if it is expressly required by the sender. However, in such a case, pursuant to the CMR Convention, the cost of such checking (e.g. additional miles and weight costs) shall be returned to the carrier.

When is the sender responsible for overloading?

To sum up, pursuant to the CMR Convention, the sender of goods is responsible for all the costs incurred by the carrier due to inadequate data in the CMR document. If the sender enters the underestimated weight of the goods in the consignment note, it may be assumed that he is responsible for covering the carrier’s whole loss resulting from this issue (e.g. costs of a ticket, if any, and costs of parking incurred when waiting for the transshipment etc.).

But, what if some of the goods have to be loaded onto another vehicle to continue the transport? 

If overloading is caused by the wrong information contained in the CMR consignment note, and the vehicle is stopped for inspection by competent authorities, the carrier should inform the person responsible for the cargo (e.g. customer) about the problem and require his instructions.

In such a case, you should expect one of two possible answers. Either the sender will ask you to load a part of the goods to another of your vehicles, or he will find another carrier who will pick up the goods in excess. To avoid doubt who should pay for it, you should refer to Article 16 of the CMR Convention:

So, if the transshipment is required because the vehicle is overloaded, and the problem is not caused by the carrier who knowingly loaded too much but by the fact that the CMR document contained inadequate or insufficient weight of the goods, all the costs incurred shall be covered by the sender.

Photo: Pixabay/Jaume Jaquet