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Who is liable in the case of carriage of loaded freight wagons?

Liability according to the CIM UR (Appendix B to the COTIF) is more stringent than that according to the Uniform Rules concerning Contracts of Use of Vehicles in International Rail Traffic (CUV UR, Appendix D to the COTIF). According to Article 23 CIM UR, it is a matter of a strict causal liability whereas, according to Article 4 CUV UR, it is a matter of liability for presumed fault, with reversal of the burden of proof in case of loss of or damage to a vehicle. The parties to the contracts are also different – consigner and contractual carrier in the case of the contract of carriage of goods and between wagon keeper and user railway undertaking in case of the carriage of empty wagons

The delivery of passenger coaches or new freight wagons does not fall within the scope of a contract of use of wagons within the meaning of CUV UR since, in this case, the wagons are not operating as a means of transport but rather constitute the object of carriage of railway vehicles running on their own wheels and consigned as goods under Article 24 CIM. This also applies to all carriage of empty wagons, irrespective of it being known – in advance – whether a contract relating to the carriage of goods by means of this wagon has been concluded or not. Hence the presumed liability of the carrier for the carriage of rail vehicles running on their own wheels and consigned as goods under Article 24, as well as the carrier’s obligation to pay compensation in case of loss of or damage to a rail vehicle, an intermodal transport unit or their parts, as provided for by Article 30 § 3 and Article 32 § 3 CIM UR. The contract of carriage of empty freight wagons, on the other hand, is based on Article 1 § 1 CUV and Article 1 GCU, which enshrine a principle of liability for presumed fault, with reversal of the burden of proof for the user railway undertaking (Article 4 CUV UR and Article 22 GCU).

erik.evtimov(at)cit-rail.org