Lloyd's Maritime and Commercial Law Quarterly
COMBINED TRANSPORT
The delay provisions of CMR
A. C. Hardingham
B.A. (Oxon.), Solicitor.
The provisions of CMR1 which govern the liability of the carrier for the consequences of delay have so far been the subject of very few reported decisions. The purpose of this article is to analyse those provisions,2 and to predict the construction which would be placed upon them by a court.
When is there a delay under CMR?
Articles 19 and 20(1) read as follows:
“Article 19.
Delay in delivery shall be said to occur when the goods have not been delivered within the agreed time-limit or when, failing an agreed time-limit, the actual duration of the carriage having 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”.
“Article 20(1).
The fact that goods have not been delivered within thirty days following the expiry of the agreed time-limit, or, if there is no agreed time-limit, within sixty days from the time when the carrier took over the goods, shall be conclusive evidence of the loss of the goods, and the person entitled to make a claim may thereupon treat them as lost”.
The preferable view is that it is not necessary for the agreed time limit for the purposes of art. 19 to be recorded in the consignment note: if the evidence establishes that a time limit was agreed, for instance, by exchange of telexes, then that is sufficient.3
The effect of art. 20(1) is to turn a delay in delivery into a total loss of the goods and to render the carrier liable4 for the value of the goods as such rather than (as will be seen is the case in respect of delay) the amount of the carriage charges. It is interesting to contrast the absolute nature of the times laid down in art. 20(1) with the test of reasonableness laid down in art. 19. It is of course not difficult to envisage circumstances in which there may have been no delay within the meaning of art. 19 because a diligent carrier could have done no better than the carrier in the particular circumstances, while the strict times laid down in art. 20(1) have nonetheless been exceeded. The carrier would doubtless attempt to rely upon the provisions of art. 17(2), claiming, for instance, that the “loss … or delay was caused … through circumstances which the carrier could not avoid and the consequences of which he was unable to prevent”.
It is to be noted that art. 17(2) does not refer to circumstances which the carrier could not reasonably avoid and the consequences of which he was unable reasonably to prevent, and it is certainly arguable that a reasonableness test is not to be implied into
1 The Convention on the Contract for the International Carriage of Goods by Road.
2 The provisions governing liability for delay as such are dealt with here. CMR contains other provisions (principally arts. 2, 13, 15, 16, 22, 28, 32) which may have to be taken into account if goods have been delayed.
3 See Libouton, (1973) 8 E.T.L. 2, 54.
4 Subject to the gold franc limitation in art. 23(3).
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