Recently, we have been confronted with a case in which a carrier has successfully carried out the international transport commissioned to it, but has not received the due payment. The lost consignment note was indicated as the reason. Is the party ordering the carriage entitled to deprive the carrier of the remuneration guaranteed in the contract of carriage for that very reason?
The simplest answer is: absolutely not. Loss of the consignment note does not entitle the principal not to pay the carriage charge due to the carrier.
Pursuant to Article 4 of the CMR Convention, “the contract of carriage shall be confirmed by the making out of a consignment note. The absence, irregularity or loss of the consignment note shall not affect the existence or the validity of the contract of carriage which shall remain subject to the provisions of this Convention.”
As the German-language literature points out, the contract of carriage under the CMR is considered to be a consensual contract without the requirement of form. It is subject to the CMR Convention even if no valid consignment note is issued.
The consignment note is not the only source of proof that the carriage has been properly and efficiently performed.
In the judgment of 22 May 2014 (Case No I ZR 109/19), the Federal Court of Justice (Bundesgerichtshof) indicated that, where neither a loading slip nor a consignment note has been issued, proof of the quantity of consignments handed over may be provided by the person entitled to claim under Article 17(1) of the CMR also on the basis of an acknowledgement of receipt (handover protocol) issued by the carrier or its driver.
Furthermore, in the case of properly performed transport, the loss of the consignment note by the carrier does not in itself constitute damage. The damage claimed and its extent must be sufficiently substantiated.
It is worth noting that the lack of delivery of the consignment note cannot be treated as a faulty performance of the transport, if the transport has been performed correctly. If the carrier has carried out the transport correctly, it shall be entitled to the payment laid down in the contract of carriage. Otherwise, the main principle of the contract of carriage would be breached and failure to carry out an ancillary activity would result in depriving the carrier of the payment due to him for the main service properly performed. It would be unjustified to penalise a carrier for an activity that did not affect the transport it performed.