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Although Her Majesty’s Government is doing its best to minimise the inconvenience caused by Brexit, there is no doubt that we will experience more or less chaos. For the carrier and forwarder, chaos means only one thing – delays in transport. It is therefore worth remembering what the CMR Convention says on this subject in order not to get into trouble.

First, we need to establish what delay is in the light of the CMR Convention. Article 19 states that a delay in delivery may occur when:

– the goods have not been delivered within the agreed time-limit; or

– failing an agreed time-limit, the actual duration of the carriage in regard to the circumstances of the case, and in particular, in the case of partial loads, the time required for making up a complete load in the normal way exceeds the time it would be reasonable to allow a diligent carrier.

Transport delays due to Brexit

Imagine that: the driver goes to the United Kingdom and on the road, it turns out that, because of customs and sanitary checks, etc., he is stuck and it is obvious that he will not arrive on time or that there is a risk of delay. What to do?

Immediately contact the entitled person

Pursuant to Art. 14(1) of the CMR Convention, if for any reason it is or becomes impossible to carry out the contract in accordance with the terms laid down in the consignment note before the goods reach the place designated for delivery, the carrier shall ask for instructions from the person entitled to dispose of the goods.

What if you can’t get in touch with the entitled person?

If circumstances are such as to allow the carriage to be carried out under conditions differing from those laid down in the consignment note and if the carrier has been unable to obtain instructions in reasonable time from the person entitled to dispose of the goods, he shall take such steps as seem to him to be in the best interests the person entitled to dispose of the goods.

Written reservation as a condition for pursuing claims

Pursuant to Art. 30(3) of the CMR Convention, no compensation shall be payable for delay in delivery unless a reservation has been sent in writing to the carrier, within twenty-one days from the time that the goods were placed at the disposal of the consignee.

What should be the wording of such a reservation? – The Convention does not enforce any template or wording. It is sufficient if the consignment note or other document states that the goods arrived late. However, the reservation must be made in writing.

The easiest way is to add a reservation to the consignment note. You can also use e-mail, but only when sending an attached scan (you must be in possession of the original document). Sending just an email is risky because it may be considered insufficient due to the lack of the original document.

What if there is no reservation?

If the person entitled does not send the reservation in time or does not do so in writing, all claims for delay shall be extinguished. In other words, it is not possible to pursue claims on this account.

What is the risk for the carrier in case of delay?

In case of delay, the carrier shall pay compensation not exceeding the carriage charge (liability limit). The mere fact that a delay has occurred is not enough to make a claim against the carrier. In accordance with Article 23(5) of the CMR Convention, the entitled person must prove that they suffered damage (in or outside the shipment).

Contractual penalties for delay are illegal

Any contractual penalties for late delivery of cargo to destination or stoppage of a production line due to delay are invalid by law. This follows from Article 41 of the Convention, which provides that any clause which would directly or indirectly derogate from the provisions of this Convention is null and void. Since the CMR Convention regulates the issue of delay and at the same time does not provide for contractual penalties, their inclusion in the transport contract/order is illegal and should be treated as non-existent.

When does the carrier’s liability limit not apply?

According to Art. 29 of the CMR Convention, a carrier is not entitled to benefit from the provisions of the Convention, which exclude or limit his liability if the damage was caused by wilful misconduct or negligence, which is considered to be equivalent to wilful misconduct under the law of the place of the court proceedings. In such a case, the carrier shall be liable to the full extent of the loss or damage.

Article 26 of the CMR Convention

It is clear that the person entitled may claim compensation in excess of the carriage charge where the sender has declared a sum of special interest in delivery (Art. 26 of the CMR Convention).

Photo: Barry Davies/ Wikimedia Commons

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