Turkey: International Carriage Of Goods By Road And The Liability Of The Carrier Under CMR

Scope and Application

International carriage of goods by road is regulated mainly by the provisions of "Convention on the Contract for the International Carriage of Goods by Road", abbreviated as CMR after the French title ("La Convention relative au contrat de transport international de marchandises par route"). The Convention was signed on 19 May 1956 at Geneva and entered into force on 2nd July 1961 (Modified by a Protocol signed at Geneva on 5th July 1978 which entered into force on 28th December 1980, to introduce Special Drawing Rights (SDR) as unit of account Turkey has acceded to both the Convention and the Protocol, effective as of 31st October 1995 (Act of accession, 7th December 1993 - 3939, OfG. 14th December 1993 - 21778)).

The CMR applies mandatorily to all international carriage of goods by road. Where a part of the carriage is by sea or rail (or air) and the vehicle containing the goods is transported on board of a ship or with a railway wagon (or by an aircraft), the whole carriage will still deemed to be carriage by road, as long as the goods remain unloaded in the road vehicle throughout such parts of the trip (art. 2/1). In cases where the CMR applies, the parties cannot "opt out" of the Convention nor derogate from its provisions. According to article 41, the parties of the carriage contract are not entitled to contract out of the terms of the Convention and any contract or clause which aims to do so is void.

Pursuant to article 1/1, the CMR applies to contracts of carriage when the place of taking over (the point of origin or place of loading) and designated place of delivery of the goods, as specified in the contract of carriage, are situated in two different countries, of which at least one must be a country of a contracting state(art. 1/1). The CMR, being an international treaty, should only be applicable between the states, which have ratified it and art. 1/1 clearly states that it will be sufficient to have the involvement of only one contracting state in the contemplated carriage. In that regard, the nationality or the residence or the places of business of the parties are not taken into consideration. Moreover, the carriage must be performed by a "vehicle", a definition that covers motor vehicles (other than those running on rail), articulated vehicle; (any motor vehicle with a trailer attached to it), trailers and semi-trailers. The CMR also applies to carriage performed by states or by governmental organizations (art. 1/3), such as national transportation enterprises. However, the CMR does not apply to carriage of mail, funeral consignments and furniture removal.

The Consignment

Article 4 of the CMR impose a mandatory provision that specifies the issuance of a consignment note. Thus, the carriage must be performed under a consignment note reflecting and confirming the contract of carriage. In this sense the consignment note is not formative but only declaratory of the existence of the contract. The consignment note must show where it was made out, contain particularsabout the parties to the contract and the consignee, the place of taking over of the goods and their designated destination, the goods to be carried, charges relating to the carriage, the number of packages, the gross weight of the goods, etc. The consignment note shall also contain, where applicable, a declaration on the value of the goods and the amount representing special interest in delivery, the agreed time-limit within which the carriage is to be carried out. The consignment note must also contain a statement that the carriage is subject, notwithstanding any clause to the contrary, to the provisions of the Convention (art. 6). Pursuant to article 7/3, if the consignment note does not contain the statement which declares that the carriage is subject to the provisions of the CMR, the carrier shall be liable for all expenses, loss and damage sustained through such omission by the person entitled to dispose of the goods. The consignment note shall be made out in three original copies signed by the sender and by the carrier. These signatures may be printed or replaced by the stamps of the sender and the carrier if the law of the country in which the consignment note has been made out so permits. The first copy shall be handed to the sender, the second shall accompany the goods and the third shall be retained by the carrier (art. 5/1).

The function and role of the consignment note is decisive in international carriage by road under the CMR. The consignment note shall be prima facie evidence of the making of the contract of carriage, the conditions of the contract and the receipt of the goods by the carrier (art. 9/1). However, the consignment note is not conclusive. If the consignment note contains no specific reservations by the carrier, it shall be presumed, unless the contrary is proved, that the goods and their packaging appeared to be in good condition when the carrier took them over and that the number of packages, their marks and numbers corresponded with the statements in the consignment note (art. 9/2). Consequently, the presumption will be that any loss of or damage to the goods discovered at the destination should have occurred during the carriage. If the carrier alleges that he should not be held responsible then the burden of proof shall be on the carrier.

Thus, on taking over the goods, the carrier is obliged to assure the accuracy of the statements in the consignment note relating to the number of packages and their marks and numbers. He must also check the apparent condition of the goods and their packaging (art. 8/1). In case the carrier has no possibility of making the said inspections, he must insert reservation clauses in the consignment note.

Risk of loss or damage

The general rule regarding the liability of the carrier under the CMR is that the carrier is liable for [the total or partial] loss of or damage to the goods between the time he takes charge of the goods and the time they are delivered to the consignee, as well as for the delay in the carriage (art. 17/1).

The carrier shall be liable for delay if the goods are not delivered within the agreed time-limit, or where there is no agreed time-limit, within a reasonable time, having regard to the circumstances of the carriage (art. 19). Where the parties have agreed on a time-limit within which the carriage should be accomplished, it must be stated in the consignment note (art. 6/2, f). If the goods are not delivered within thirty days after the agreed time-limit, or if there is no such agreed time-limit, within sixty days from the time when the carrier took over the goods, it will be conclusively presumed that the goods are lost and the owner of the goods will be entitled to demand compensation for the loss of the goods and not because of the delay.

The carrier is also held responsible for the damage caused by the acts and omissions of his servants and agents or of any other persons of whose service he makes use for the performance of the carriage (art. 3).

Carriers' Fault Liability

The CMR system of liability, in broad terms, corresponds to the liability based on fault. However, this is not the standard concept of fault liability. The carrier is not under obligation to show mere reasonable care but he must show utmost care to prevent any damage. This system is called, more precisely, liability based on fault hardened (supplemented) with a duty to show due diligence and inverted burden of proof.

In order to be relieved of liability, the carrier must prove, that the loss of or damage to the goods or delay was caused, either: (i) by the wrongful act or neglect of the claimant, or (ii) by the instructions of the claimant, or (iii) by inherent vice [fault/defect] of the goods, or (iv) through circumstances which the carrier could not have avoided and the consequences of which he was unable to prevent (art.17/2).

On the other hand, the Convention, in art. 17/4 provides for a presumption, in that if the carrier proves that the damage is attributable to one of the circumstances prescribed therein, then he would also be relieved of liability. Art. 17/4 refers to the following: (i) use of open unsheeted vehicles, when their use has been expressly agreed, (ii) defective packaging: (iii) handling, loading, stowing or unloading of the goods by the sender, the consignee or anybody other than the carrier; (iv) the nature of certain kinds of goods.

When the carrier is liable for compensation in respectof total or partial loss of goods, the damages recoverable shall be calculated by reference to the value of these goods at the place and time when the carrier accepted them for carriage (art,23/1).

Carriers' Limited Liability

As a basic principle, the liability of the carrier is limited. The original wording of the Convention is changed and the term of account was replaced with SDR by the Protocol of 1978 and carrier's liability is limited to 8.33 SDR (Special Drawing Right; for SDR value (https://www.imf.org/external/np/fin/data/rms_five.aspx) per kilogram for total or partial loss of the goods. In case of delay, the damages are limited to the amount of the charges for carriage (art. 23/5).

However, it is worthy to note that if the loss, damage or delay has been caused by willful misconduct on the part of the carrier or the persons for whom he is responsible or by negligence which is, according to the domestic law applicable to a certain case, equivalent to willful misconduct; the provisions limiting the liability of the carrier shall not be applied.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.