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Specialists in Shipping, Marine Insurance & Transit Law, London |
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Your are here: Home >> Bulletins APPLICATION OF THE CMR TO MULTIMODAL TRANSPORTAlthough now reported in full at [2002] 2 Lloyd's Rep. 25 (albeit with a headnote which is, at least in part, wholly misleading) the recent decision of the Court of Appeal in Quantum Corporation -v- Plane Trucking deserves mention. The case concerned the theft of a consignment of hard discs, said to have been worth US$1.5M, during the course of its transit from Singapore to Dublin. Freight forwarders in Singapore, acting as agents for Air France, issued a master air waybill naming themselves as consignor and a sister company in Ireland as consignee. Air France had no direct flight from Singapore to Dublin. The master air waybill therefore recorded that the goods were to be carried in two stages. The first was to be from Singapore to Charles de Gaulle airport, Paris by Air France, and the second from Paris to Dublin by Air France. The waybill stated on its face: "All goods may be carried by any other means including road or another carrier unless specific contrary instructions are given hereon by the shipper, and shipper agrees that the shipment may be carried via intermediate stopping places which the carrier deems appropriate". It further identified both an Air France flight from Singapore to Charles de Gaulle airport and a trucking service used by Air France to carry goods from Charles de Gaulle to Dublin airports. The goods reached Charles de Gaulle airport without incident. They were then loaded on to a trailer operated by Air France's sub-contractor for carriage to Ireland. The trailer was shipped across the channel to England. Unfortunately, during the course of carriage to Holyhead, the consignment was lost in what transpired to be a fake "hi-jack" in which the truck driver was involved. The haulier subsequently went into liquidation and its liability insurers purported to avoid cover. Air France admitted liability for the loss. However it argued that the carriage by air (subject to the Warsaw Convention) ended at Charles de Gaulle airport - and that, thereafter, its liability fell to be determined by reference to its own terms and conditions. These contained a limit of liability which was more generous than the basic CMR limit, but no provision (paralleling Art. 29 of the CMR) disentitling Air France from relying on that limit in the event of wilful default. The claimants contended that, although there was only one contract of carriage, Air France had contracted not only for the carriage of goods by air to Charles de Gaulle airport but also for their carriage by truck to Dublin. They argued that this second leg of the transit was governed by the CMR. Having regard to Art. 1.1 of the CMR, the Court was required to consider what might constitute a "contract for the carriage of goods by road in vehicles for reward", whilst bearing in mind that the Convention only applies "when the place of taking over of the goods and the place designated for delivery, as specified in the contract, are situated in two different countries, of which at least one is a Contracting country". Both the Commercial Court and the Court of Appeal approached the matter on the basis that, although carriage by road from Paris to Dublin was Air France's intended mode of performance, Air France was not contractually obliged to carry the goods in that manner. Whilst the contractual arrangement both contemplated and provided for part of the carriage to be effected by road, the Commercial Court had concluded that the CMR did not apply to the road journey from Paris to Dublin. The judge considered that, unless the whole of the carriage envisaged by the contract was governed by the CMR, the Convention could not apply to any part of it. Since, in his view, the contract was predominantly for carriage by air, he did not believe that it could properly be described as a contract for the carriage of goods by road. There were, therefore, two questions for consideration by the Court of Appeal. The first concerned the extent to which the application of the CMR depends upon a carrier having obliged itself contractually to carry by road (and by no other means). The second concerned the extent to which (if at all) a contract can be both for the carriage of goods by road, within Art. 1 of the CMR, and for some other means of carriage, to which the Convention does not apply. In addressing the first of these questions, the Court of Appeal considered that a contract for the carriage of goods by road encompassed a contract which either provided for or permitted carriage by such means which actually occurred under its terms. In other words, the application of the CMR depends upon the occurrence of international carriage of goods by road pursuant to contract. In order to determine whether there exists a contract for the carriage of goods by road within Art. 1 of the CMR, it is necessary to take into account the actual operation of the contract under its terms. The Court further concluded that the CMR applies to the international road carriage element of a 'mixed' or multimodal contract providing for two different means of carriage. The fact that no CMR note was ever contemplated or issued in the case in question was irrelevant since the contract, as recorded in the air waybill, provided for road carriage from Paris to Dublin. Moreover, the Court of Appeal considered that the place of taking over of the goods and the place designated for delivery could be read as referring to the places which the contract specified for the taking over and delivery by the carrier in its capacity as international road carrier (in the case in question, Paris and Dublin respectively). It was not necessary to read the provisions of Art. 1 of the CMR as referring only to the first moment when the relevant carrier receives and the last moment when he parts with goods in any capacity. The Court of Appeal therefore decided that the CMR applied to the roll-on, roll-off leg of the carriage from Paris to Dublin - and, to the extent that they would limit Air France's liability, that company's own conditions were overridden accordingly. It was therefore open to the claimants to seek to show that there was wilful misconduct disentitling Air France from limiting its liability for the loss which occurred during the road transit. During the course of its judgment, the Court of Appeal considered the application of the CMR to various contracts for international carriage. Reference was made to the following range of possibilities, each of which might actually lead to goods being carried by road internationally (not involving the unloading of the goods from the trailer):
Whilst the case in question concerned only option (b), the Court of Appeal considered that the CMR was applicable to an international road leg of a larger contract in each of the scenarios listed above (whilst pointing out that carriage by road contrary to the terms of a contract would raise different considerations). Recognizing that the English Courts should try to harmonize interpretation of the CMR, as any other international convention, with any recognizable body of foreign law that has developed, the Court of Appeal was bolstered in its view by noting that the great majority of the Courts in various continental European jurisdictions had reached a similar conclusion and accepted that the CMR can apply to the international road leg of a larger contract for carriage involving different methods of transport. If you have any queries arising out of the above please do not hesitate to contact Christopher Dunn, Mark Lloyd or Chris Chatfield. August 2002 Return to Bulletins |
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