International Carriage of Goods by Road: CMR
206. Taking over the goods
The carrier’s obligations as carrier have to be performed mainly during the journey; in other words, during transit. Courts generally infer that transit begins not when movement to destination begins but earlier when carriers get the custody and control of the goods.1 That is when the nature of the operation and the nature of the risk affecting goods change;2 hence there is a self-evidently sensible alignment of transit in the sense of the carrier’s period of responsibility as carrier and transit in the sense understood in transit insurance cover. Moreover, the inference drawn by the courts appears also to be that intended by RHA Condition 6(1) (in the editions of both 1998 and 2009) providing that transit shall commence when the carrier “takes possession” of the goods, “whether at the the point of collection or at the Carrier’s premises”. Thus goods which have been loaded on the vehicle, but remain in the control of the sender, have not commenced transit3 but goods which have yet to be loaded (probably by the carrier) but have been handed over to the carrier pending loading, have commenced transit. An exception one way arises when, although custody and control have passed to a carrier, the goods have been sent on the wrong journey4 or on the wrong vehicle:5 the cover contracted for has not commenced and the court will be slow to hold that the carrier’s terms and conditions apply.6 An exception the other way arises when the carrier has agreed to collect the goods. Ex hypothesi the carrier has yet to assume custody and control but the carrier has begun to perform the contract and the courts are likely to imply a duty to send a vehicle to collect the goods with reasonable dispatch, on the basis of an implied term of the contract of carriage necessary to give business efficacy to the contract.7
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