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Case Law

for freight traffic. We'll be filling in more cases until end of 2023, thank you for your patience.

The limitation of liability for the loss of a wagon

What is the limitation of liability for the loss of a wagon in accordance with the GCU? Can the liability for the loss of a wagon be limited to the repair costs in accordance with Article 19 GCU?

Relevant legal norms:
COTIF 1999
GCU Article 23,2

Article 19 GCU initially regulates the reimbursement of repair costs for damage to the wagon, unlike Article 23 GCU, which regulates the amount of compensation for damage to the wagon. What kind of relationship exists between the two articles in the GCU? Are they applied alternatively, or cumulatively in the event of the loss of the wagon so that the wagon keeper is objectively entitled to receive full compensation?

Taking a legal approach to assessing the relevant Articles 19.2 and 23.2 GCU clearly shows the different scope of application within the GCU:

  • Article 19.2 GCU has a "technical" function that also includes financial compensation for repairing and rectifying the damage to the wagon.
  • However, the amount of compensation according to Article 23.2 GCU is directly related to the liability as specified in Article 22 GCU and therefore has a fundamental link to the principle of liability for presumed fault of the user RU in accordance with Article 22 GCU. Accordingly, the liability for fault has no limit in contrast to the causal liability in accordance with Article 23 CIM, but provides for full compensation limited to the usual value of the wagon, which is attained in the event of loss. This important limitation is postulated in the last sentence of Article 23.2 GCU and is also regarded as a legal limitation or legal bar to claims for speculative compensation for damage to the wagon in the event that the costs of loss of use in accordance with Article 13.3 GCU are added to the repair costs in accordance with Article 19.2 GCU.
  • The last sentence of Article 23.2 GCU, that "The total amount of compensation (for loss of use and for reprofiling wheelsets) may not exceed the amount that would be payable for loss of the wagon." provides the RUs as users of wagons with legal protection against claims by the wagon keeper down to the loss of the wagon.

Cases for The limitation of liability for the loss of a wagon

type: Recommendation
source: CIT

case no.:
status: In Force
link: (not yet functional)


Declaration of the value of goods in the CIM consignment note

Who is responsible for providing details of the value of the goods? How is the value of the goods declared in the consignment note? How is the declaration of value to be handled for different goods?

Relevant legal norms:
COTIF 1999
CIM UR
Article 34
Article 32

The basic principle of COTIF/CIM 1999 is the freedom of contract. Article 34 CIM enables the consignor to agree on a maximum value with the carrier when the amount exceeds the limit of liability provided for in Article 32 §2, namely 17 SDR per kg, and to enter this value in Box 26 of the CIM consignment note. The person authorised to make this declaration, in addition to the consignor, is the carrier who, until evidence is provided to the contrary, has acted on behalf of the consignor (Article 8 §2 CIM). On the instructions of the consignor, this declaration can be changed at a later date by the contractual carrier or by one of the successive carriers (Article 18( §1 CIM in conjunction with the comments in Appendix 2 GLV-CIM on Box 26 of the consignment note).

This objective legal view of the basic principle of freedom of contract underlines the standards laid down in Article 5 third sentence, in accordance with which a carrier may assume greater liability and more burdensome obligations for the benefit of the railway’s customers.

Declaration of value for different goods

By concluding a contract of international carriage of goods by rail, the carrier, in accordance with Article 6 §1 CIM, undertakes to carry goods for reward between places situated in different COTIF Member States. The declaration of the value of the goods is the key entry when completing the consignment note as confirmation of the contract of carriage (Article 6 § 2 CIM). An interesting question relates to the value of the goods when different goods are carried by rail – in containers, for example. What value is to be entered in this case in Box 26 of the CIM consignment note?

What is primarily of significance for rail transport law is the fact that the container is to be understood as packaging and may not be considered prima facie as part of the contract of carriage. If different types of goods, in accordance with the WCO Harmonised System (WCO HS), are carried by rail in a container, the consignor enters the value of the grouped goods (NHM Code 9902) in Box 26 of the consignment note.

Cases for Declaration of the value of goods in the CIM consignment note

type: Recommendation
source: CIT

case no.:
status: In Force
link: (not yet functional)


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Relevant legal norms:
COTIF 1999
CIM UR
Article 16
Article 3a

The transit period for every contract of carriage of goods by rail for reward between the place of taking over of the goods and the place designated for delivery, provided they are situated in two different COTIF Member States (Article 1 § 1 CIM), will be agreed in accordance with Article 16 § 1 CIM between the consignor and the carrier or, in the absence of an agreement, applied ex lege in accordance with Article 16 §§ 2-4 CIM (see CIT-Info 1/2015, p. 9). Article 3 lit. a) CIM postulates that the term “carrier“ is understood to mean both the contractual carrier with whom the consignor has concluded the contract of carriage in accordance with CIM UR and the successive carrier who has become a party to this contract post factum.

The logical question that follows from the scheme of the CIM UR arises in relation to the obligation of the substitute carrier who has not concluded the contract of carriage with the consignor to comply with the maximum transit periods [Article 3 lit. b) in conjunction with Article 27 CIM]. If loss or damage results from the transit time being exceeded, then, in accordance with Article 23 § 1 and in conjunction with Article 33 § 1 CIM, the contractual carrier is required to pay compensation not exceeding four times the carriage charge. In our opinion, it is obvious that, if the substitute carrier complies with the maximum transit period for that part of the carriage he himself performs, this is contractually outside the scope of the CIM UR and therefore a settlement of the issue is legally necessary. Although this bilateral contract is not organised with the CIM consignment note itself, the contractual carrier would be well advised to acquaint the substitute carrier with the information in Box 7 of the CIM consignment note on the agreed maximum transit time, since otherwise, in his ignorance, it can easily result in him exceeding the transit time for the entire carriage. Ultimately, a timely agreement on the carriage delivery time between the contractual carrier and the substitute carrier as part of the total maximum transit period is in the contractual carrier’s own interest, since he is responsible for the entire carriage and for complying with the total maximum transit period – see Article 27 § 1 in fine CIM. This obligation may be included as a legal provision in a bilateral contract between the contractual carrier and the substitute carrier in accordance with the CIM UR or the national law applicable in the place where the contract of carriage is concluded.
 

Cases for ??? (Row 9 in excel!)

type: Recommendation
source: CIT

case no.:
status: In Force
link: (not yet functional)


Documents accompany wagons handed over as “goods travelling on their own wheels” in cross-border rail traffic?

Which documents accompany wagons handed over as “goods travelling on their own wheels” in cross-border rail traffic?

Relevant legal norms:
COTIF 1999
CIM UR
Article 24

CUV UR
Article 1

In international rail transport law, wagons are considered to be unpowered vehicles travelling on their own wheels on railway lines [see Art. 2 b) CUV]. In cross-border rail traffic, the wagons may either be handed over as goods under the terms of a contract of carriage (see Art. 24 CIM), or as a means of transport under the terms of a contract of use for conveyance in accordance with the CIV UR and CIM UR (see (Art. 1 CUV).

If railway vehicles are not being used as a means of transport, they are not subject to the CUV Uniform Rules, the General Contract of Use for wagons (GCU) or the Regolamento Internazionale Carrozze in international passenger traffic (RIC); instead they are considered to be goods and are carried subject to the CIM Uniform Rules. In accordance with Art. 6 § 8 CIM, the rules governing the organisation of cross-border movements of railway vehicles running as goods on their own wheels are agreed between international carriers’ associations such as CIT and international customer associations and the bodies in charge of customs matters in each member state.

As such, the most used CIT documents are the CIM Consignment note manual (GLV-CIM), especially the comments on fields 21 and 30 in Appendix 1 for the electronic consignment note and Appendix 2 for the paper consignment note, and the Freight traffic manual (GTM-CIT), point 3, last section, for the operational organisation of cross-border movements of rail vehicles travelling as freight on their own wheels.

Cases for Documents accompany wagons handed over as “goods travelling on their own wheels” in cross-border rail traffic?

type: Recommendation
source: CIT

case no.:
status: In Force
link: (not yet functional)


Freight consignments without transport documents

Freight consignments without transport documents

Relevant legal norms:
COTIF 1999
CIM UR
Article 6 §2

The cross-border carriage of goods without transport documents, such as a consignment note or other supporting documents, is possible in theory according to the principles of freedom of contract described in the 1999 CIM Uniform Rules (CIM UR). It follows therefore that the absence, irregualrity or loss of a consignment note does not affect the existence or validity of the contract, which remains subject to the CIM Uniform Rules (Article 6, § 2, second sentence, CIM). But how should the participating railways deal with the consignment in such cases? Should it be accepted or refused  by the receving carrier and sent back to the handing over carrier?

On the one hand, these discrepancies can cause serious problems for international rail freight traffic and have a lasting negative effect on its attractiveness to rail customers. On the other hand, such lapses are another reason for the flaws in international rail freight traffic, since Annex 18 (Accompanying document) based on working sheet 07-02 GTM-CIT (CIT Freight Traffic Manual) could not be used in this case. 

In this specific case, the goods in question are not surplus goods that have arrived at their destination, but goods in transit without any transport documents. As far as the procedure is concerned, it is also advisable in this case to follow the procedure described in the third indent of working sheet 07-02, GTM-CIT since, if the transport documents are missing in their entirety, copies of the CIM consignment note (duplicate) and the attached documents which would be mentioned  in field 9 of the CIM consignment note must be requested from and must be supplied by the contractual carrier – working sheet 07-02 of GTM-CIT in connection with the explanatory notes in Annex 2, field 9 of the CIM Consignment Note Manual (GLV-CIM).

Cases for Freight consignments without transport documents

type: Recommendation
source: COTIF 99

case no.:
status: In Force
link: (not yet functional)


Languages rules in the CIM Consignment Note

What language rules apply when completing the CIM consignment note?

Relevant legal norms:
COTIF 1999
CIM UR
Article 6

Since COTIF 1999, the contract for the international carriage of goods by rail has been one entered into by mutual consent (Art. 6 CIM). The CIM consignment note serves as prima facie evidence of the conclusion of the contract of carriage. As such, the contract of carriage must be confirmed by a consignment note which accords with a uniform model drawn up by the international associations of carriers like CIT in agreement with the customers’ international associations and the bodies having competence for customs matters – see Art. 6 § 2 in connection with 6 § 8 CIM.

This fundamental function of the legal system of COTIF/CIM is implemented in the CIT freight products supporting CIT members and their customers giving to a great extend linguistical freedom for the completion of the CIM consignment note. In this context, the CIT “CIM Consignment Note Manual” (GLV-CIM) provides as follows for language rules in Appendix 2 Point 1 Section 1 (for the instructions of the pre-printed language versions of the consignment note)[1] and Appendix 2 Point 1 Section 2 on completing the consignment note as follows: “The consignment note is to be completed in one or more languages of which one must be either English, or French, or German. The consignor and carrier may agree alternative arrangements. For consignments subject to the RID, only the states involved in the movement may agree alternative arrangements.”

Having chosen a language or languages, all details are to be entered in that (those) language(s) and not partly in one language and partly in another. However, the consignor and the contractual carrier can agree otherwise. For consignments subject to the RID, only the states involved in the movement may agree alternative arrangements. The language rules for the CIM consignment note, as set out in the CIT freight products, have been successfully and beneficially applied since COTIF/CIM entered into force on 1 July 2006. They are transparent and provide further flexibility and freedoms for the contracting parties upon concluding a contract for the international carriage of goods by rail.

[1] The consignment note is to be printed in one or more languages of which one must be either English, or French or German. The consignor and carrier may agree alternative arrangements.

Cases for Languages rules in the CIM Consignment Note

type: Recommendation
source: COTIF 99

case no.:
status: In Force
link: (not yet functional)


Circumstances preventing delivery

Relevant legal norms:
COTIF 1999
CIM UR
Article 21

According to the legal definition in Article 23 § 1 CIM, an international contract of carriage of goods by rail is valid from the taking over of the goods until the time of delivery. But what are the legal consequences if the goods cannot be delivered?

This is a case of circumstances preventing delivery in accordance with Article 21 § 1 CIM, which specifies that "When circumstances prevent delivery, the carrier must without delay inform the consignor and ask him for instructions (...)". According to the provisions of Article 21 CIM, it is not necessary for the goods to have arrived at the delivery point. In this regard, Paragraph 11.2 of the GTC-CIM specifies that " Agreements made between the consignee and the carrier who delivers the goods under the contract of carriage shall determine delivery of the goods, the servicing of the terminal, of the unloading point, or of the private siding at the destination point. By default, delivery shall take place in accordance with the provisions in force at the delivery point."

It is very important, therefore, that the carrier obtain instructions in good time from the consignor as to what further action is to be taken. The notification of circumstances preventing delivery and the consignor's instructions are described in detail in the CIT’s CIM Consignment Note Manual (GLV-CIM) Appendix 9. The procedure has been further standardised with the CIT9 uniform model document; for the purpose of the information exchange optimization CIT has created a pdf form application.

This means that, as far as the law is concerned, the carrier has acted in bona fide and is entitled to recover any costs he has incurred relating to the circumstances preventing delivery. This in turn is in accordance with Article 22 § 1 CIM, so that, particularly in the event that the consignor fails to give instructions or fails to give them in good time, the carrier is protected ex lege in accordance with Article 22 § 1 c) CIM (disregard of the circumstances preventing delivery by the consignor). In accordance with § 2, the bona fide carrier may unload the goods and then, in accordance with § 3, sell them. If the proceeds of sale are less than the costs, the consignor must pay the difference – cf. Article 22 § 4 CIM. The details of how the costs are charged are again described in detail for CIT members in the GTM-CIT Working Sheet 08-03.

Cases for Circumstances preventing delivery

type: Opinion
source: CIT

case no.: empty
status: None
link: (not yet functional)

type: Verdict
source: Bundesgericht Dresden

case no.: 1234567890
status: In Force
link: (not yet functional)