With regard to the international carriage of goods in open wagons, the carrier is relieved of liability if the type of carriage is specified in the carrier's General Terms and Conditions (GTC), or this has been expressly agreed and entered in the consignment note.
Where is the entry to be made? What is the importance of this entry in the consignment note for the carrier?
There are two issues associated with this situation:
i) Exemption from liability in accordance with Article 23 § 3 (a) CIM Uniform Rules:
According to Article 23 CIM, the carrier is liable to the customer between the time of taking over of the goods and the time of delivery. In addition to the so-called non-preferential reasons for exemption in accordance with § 2 of Article 23 CIM(1), § 3 provides for a catalogue of preferential or pre-emptive reasons of exemption for the carrier. This catalogue included in sub-items (a) to (g) is of a casuistic nature and, with regard to the carrier's exemption, results from the assumption of special risks (in casu carriage in open wagons). It is a known fact that this has been taken from Article 17 CMR (with the exception of the railway-specific sub-item (g))(2). The conclusion regarding carriage in open wagons on cross-border rail freight services on the other hand has been taken from the wagon number in Box 18 of the CIM consignment note, which also provides information on the wagon type. According to Professor Freise, wagons covered with tarpaulin or enveloped in sheeting are also considered to be open wagons – this is different from the German Commercial Code (HGB) or the original standard article 17, para. 4 (a) CMR for the international carriage of goods by road(3).
ii) Purpose of the entry in CIM consignment note
In addition to carriage in open wagons in accordance with the GTC of the carrier, Article 23 § 3 (a) CIM also provides for the agreement to carry out such shipments and the corresponding entry in the consignment note as evidence of the contract of carriage. The latter is only meant as an alternative lex specialis to the GTC of the carrier, which - to all intents and purposes - are currently the norm and regulate all aspects of such shipments.
Since the 1999 COTIF revision, the consignment note has been regarded as evidence of a contract of carriage (consensual contract) and is not a constitutive element of the contract, as was the case with COTIF 1980 (formal contract). The absence, irregularity or loss of the consignment note shall not affect the existence or the validity of the contract of carriage (Article 6 § 2 CIM). The principle of the evidence of the contract has demonstrated its value in practice, in particular with regard to safeguarding international agreements between the consignor and contractual carrier as parties to the contract of carriage. This also applies to the latter, since international agreements are less clear-cut than national law and, for this reason, the entry in the CIM consignment note will certainly be referred to.
With regard to the actual entry of the agreement in the consignment note, Box 7 "Consignor's declarations“, in particular is relevant (Appendix 2 of the CIT’s "CIM Consignment Note Manual“ (GLV-CIM). If the carrier raises no objection to this, then the consignor's unilateral declaration in the consignment note is considered to be a binding agreement with the carrier.
Erik.Evtimov(at)cit-rail.org / Original : DE / 2014-10-22
1. Article 23 § 2 CIM: "The carrier shall be relieved of this liability to the extent that the loss or damage or the exceeding of the transit period was caused by the fault of the person entitled, by an order given by the person entitled other than as a result of the fault of the carrier, by an inherent defect in the goods (decay, wastage, etc.) or by circumstances which the carrier could not avoid and the consequences of which he was unable to prevent.“
2. See R. Freise, Munich Commentary to the (German) Commercial Code, Vol. 7, Law of Transport, Munich 2014, Article 23 CIM, marginal note 27, p. 1996. My thanks to Prof. Freise for kindly forwarding the new 3rd edition of the Munich Commentary on International Rail Transport, 1891 et seqq.
3. ibid., marginal note 31, p. 1997