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What rights of disposal in the event of circumstances preventing carriage?
Who has the right of disposal should circumstances prevent carriage in the CIM area, how far does this right extend? Is it lawful for the carrier to sell the goods? Can the goods be returned? In what cases can the carrier destroy the goods, and at whose cost?
With the CIM Uniform Rules providing no legal definition of “circumstances preventing carriage”, the key question under Article 20 CIM is whether a material disruption of the operational execution of the cross-border movement can be identified in the time between the goods being accepted and delivery. The question is not one of determining the carrier’s liability, but rather of avoiding the risk of imminent damage to the goods or delayed delivery as set out in Article 23 CIM et seq.
Article 20 CIM 1999, “Circumstances preventing carriage”, was drafted in the same spirit as Article 14 CMR 1956, albeit with one major difference: while road carriers are obliged to seek instructions in all events, rail carriers themselves decide whether it is i) advisable to seek instructions or ii) preferable to carry the goods by modifying the route. In any event, all steps taken by the carrier must be in the interest of the person entitled to dispose of the goods (Article 20 § 1 CIM).
Information flows and timely execution of processes between carrier and person entitled thus play a key role in establishing the good faith of the parties. The uniform procedure for dealing with circumstances preventing carriage is established at international level in Article 22 CIM. If the circumstances preventing carriage are such as to preclude all onward carriage and the carrier continues to store or otherwise take charge of the goods on behalf of the person entitled, the carrier may instigate the sale of the goods in specific cases (e.g. due to the perishable nature or condition of the goods, or if the costs of storage would be out of proportion to the value of the goods). The carrier may also sell the goods if within a reasonable time he has not received instructions to the contrary from the person entitled – see Article 20 § 2 in connection with Article 22 § 3 CIM. The proceeds of sale, after deduction of all costs, must be placed at the disposal of the person entitled. This is not a conventional sales transaction, however, and there is no transfer of ownership. In such cases, the carrier acts on behalf of the person entitled, and at their expense. National law applies only insofar as it details the manner in which the sale takes place (Article 22 § 5 CIM). In order to provide a harmonised process for use between carriers and persons entitled and reduce costs for CIT members, CIT has detailed the procedure for subsequent orders in the event of circumstances preventing carriage in Appendix 8 + specimen CIT8 GLV-CIM, which also exists in electronic form.
Finally, carriers are only entitled to destroy the goods at the consignor’s expense if the goods can be neither stored nor sold. In the absence of instructions, Article 22 § 6 CIM permits the carrier to return the goods to the consignor or, if it is justified, destroy them at the cost of the consignor.