Contract for the International Carriage of Goods by Road

Preface
Contents
Chapter 1: Contract for the International Carriage of Goods by Road
1.1 Purpose of the Geneva Convention
1.1.1 The Standardization of Transport Law
1.1.2 The Draft Revision of Some Provisions of the CMR
1.1.3 The Two Official Texts and the Reservations of Some Countries
1.1.4 A Possible Interpretation of Article 1, Fifth Paragraph, on the Amendments to CMR
1.2 Transport Covered by the Geneva Convention
1.2.1 The Definition of Road Transport
1.2.2 The Presumed Relevance of the Consignment Note in Determining the Scope of the Geneva Convention
1.2.3 Types of Carriage Excluded from the Scope of the Geneva Convention
1.2.4 The Definition of Vehicle in the Geneva Convention
1.2.5 Regulatory Prospects for International Freight Transport by Driverless Vehicles
1.2.6 The So-called Platooning
1.2.7 The International Nature of Transport
1.3 The So-called ``superposé´´ Transport
1.3.1 The Conditions for the Applicability of Article 2
1.3.2 The Case in Which CMR Is Not Applicable According to Article 2, Second Paragraph
1.3.3 Intermodal Transport and the Geneva Convention
References
Chapter 2: The Mandatory Nature of the Geneva Convention
2.1 The Concept of Binding
2.1.1 The Importance of the Binding Nature of the Geneva Convention System
2.1.2 The Invalidity of Agreements That Conflict with Mandatory Provisions
2.1.3 The Specific Cases Considered by Article 41, Second Paragraph
2.2 The Binding Nature of the Geneva Convention and the Laws of the Various States
2.2.1 The Direct References in the CMR to National Law
2.2.2 The Provisions of the Convention That Presuppose the Application of National Law, Without Its Identification
2.2.3 The Regulatory Gaps in the CMR and in the Conventions of Uniform Law
2.3 The Geneva Convention and the European Union´s Rules on Determining the Applicable Law
2.3.1 The Geneva Convention Model and Regulation (EC) 593/2008 on the Law Applicable to Contractual Obligations (Rome I)
2.3.2 The Geneva Convention Model and Regulation (EC) 864/2007 on the Law Applicable to Extra-Contractual Obligations (Rome II)
2.4 The Interpretation of the Geneva Convention
2.4.1 The Criteria for Interpreting Provisions of the Geneva Convention
2.4.2 Interpretation of the CMR as a Text of Uniform Law Based on the Logic of Continental Law
References
Chapter 3: Stipulation of the Contract and the Consignment Note
3.1 Stipulation of the Contract
3.1.1 The Concept
3.1.2 Functions and Purpose
3.1.3 The Mandatory Content
3.1.4 The Optional Content
3.1.5 Determining the Route and Establishing the Methods of Performance
3.1.6 Electronic Documents
3.2 Liability for Withholding Information, Drawing Up the Consignment Note Incorrectly and with Regard to Packaging
3.2.1 The Incomplete Drafting of the Consignment Note
3.2.2 The So-called Paramount Clause and Liability for Failure to Stipulate It
3.2.3 Liability for Customs Operations
3.2.4 The Packaging
3.3 Reservations
3.3.1 The Carrier´s Reservations at the Time of Delivering the Goods to Him
3.3.2 The Presumption on the Delivery of the Goods and the Presumption on Their Apparent Good Condition
3.3.3 Loading and Stowage
References
Chapter 4: The Different Negotiation Models and the Participation of Several Subjects in the Stipulation and Execution of Mult...
4.1 The Freight Forwarder
4.1.1 The Relationship Between the Freight Forwarder and the Carrier
4.1.2 Other Parties That Interfere with the Execution of the Transport Without Assuming the Role and Responsibility of the Car...
4.2 Subcontracted Transport Services
4.2.1 The Importance of Subcontracted Transport Services in the Geneva Convention System
4.2.2 Subcontracting and Legal Frameworks of Individual Countries
4.3 Cumulative Transport
4.3.1 The Concept
4.3.2 Carriers´ Joint Liability in Cumulative Transport
4.3.3 Internal Relationships Between Carriers
4.3.4 Actions Between Carriers
References
Chapter 5: The Journey and Execution of the Contract
5.1 The Sender´s Authority
5.1.1 General Problems Regarding the Execution of the Contract
5.1.2 The Power of Disposal
5.1.3 The Consequences of Exercising the Power of Disposal
5.2 The Carrier´s Obligations
5.2.1 The Duty to Provide Information
5.2.2 The Impossibility to Transport
5.2.3 The Impossibility or Impediment to Redelivery
5.2.4 The Possible Instructions in Case of Impediments to the Redelivery
5.3 The Redelivery and Its Alternatives
5.3.1 Cash on Delivery
5.3.2 Unloading and Termination of Transport
5.3.3 Sale
References
Chapter 6: Charges
6.1 Nature of Charges
6.1.1 Determining Charges
6.1.2 Charges and the Consignment Note
6.1.3 Changes to the Charges While the Carriage Is Being Conducted
6.1.4 Recovery of Expenses
6.2 The Carrier´s Right to Charges
6.2.1 Charges and Delivery
6.2.2 The Carrier´s Charges and the Manner in Which They May Be Levied
6.2.3 Payment of Charges by the Consignee
References
Chapter 7: Liability of the Carrier
7.1 The Carrier´s Responsibility Regime
7.1.1 The Principles of Shared Responsibility
7.1.2 The First Three Cases of Exemption from Liability, the Conduct or an Order of the Person Entitled to Redelivery, and the...
7.1.3 The Circumstances that Have Arisen and Are Unavoidable. Theft
7.1.4 Robbery
7.1.5 Road Traffic, Vehicle Integrity and Atmospheric Elements
7.1.6 The Facts of the Public Administration and Third Parties
7.1.7 The Defective Condition of the Vehicle Used to Perform the Carriage
7.2 The Special Risks
7.2.1 The So-Called Special Risks
7.2.2 Open Vehicles and the Lack of or Defect in Packaging
7.2.3 Maintenance, Loading, Unloading, and Stowage by the Sender or the Consignee
7.2.4 Risks Inherent in the Nature of the Goods
7.2.5 The Insufficiency or Imperfection of the Markings or Numbers of the Packages and the Transport of Live Animals
7.2.6 The Burden of Proof
7.2.7 The Persons in Charge and Other Auxiliaries of the Carrier
7.3 The Carriage of Dangerous Goods
7.3.1 Dangerous Goods
7.4 The Party That May Assert the Carrier´s Liability
7.4.1 The Action of the Sender and That of the Consignee
7.4.2 The Concept of Entitled Person in the Main Case Law Orientations and the Action of Compensation for Prejudice Due to Los...
7.4.3 The Action for Compensation for Prejudice Due to Delay
7.4.4 Identification of the Person Entitled to Compensation in the Person Who Suffers the Financial Damage
7.4.5 The Possible Concurrence of Claims Not Based on the Contract and of Noncontractual or Tort Liability
References
Chapter 8: Damages and Compensation Limit
8.1 Specific Cases
8.1.1 Failure to Execute
8.1.2 Delay in Execution
8.1.3 Determining the Prejudice Caused by Delay
8.1.4 Damage
8.2 The Concept of Loss
8.2.1 Partial and Total Loss
8.2.2 The Supposed Economic Loss
8.2.3 The Presumption of Total Loss
8.2.4 Determination of Prejudice from Loss
8.2.5 Prejudice from Loss, Supposed Expenses and Taxes
8.2.6 Sharing of Burden of Proof
8.3 The Compensatory Obligation
8.3.1 The Determination of Interest
8.3.2 The Exchange
8.4 Types and Functions of the Compensation Limit
8.4.1 The Reasons for Including a Compensation Limit and the Evolution of the Geneva Convention
8.4.2 Calculation of the Compensation Limit for Losses and Damages
8.4.3 The Compensation Limit and Delays
8.5 Cases wherein the Compensation Limits Do Not Apply
8.5.1 Willful Misconduct
8.5.2 Equivalent Default
8.5.3 Cases Where Equivalent Default Is Possible: Theft
8.5.4 Cases Where Equivalent Default Is Possible: Defective Packaging, Improper Handling, Stowage and Others
8.5.5 The Criteria for Determining the Unlimited Compensation
8.6 Special Interests in Delivery
8.6.1 The Declaration of Value
8.6.2 The Declaration of Special Interest upon Redelivery
References
Chapter 9: Rights Protection
9.1 Joint Assessment of the Condition of Goods
9.1.1 Apparent Losses and Damage
9.1.2 The Adversarial Principle
9.1.3 Non-apparent Losses and Damage
9.1.4 Disputing Delays
9.2 The Period of Limitation
9.2.1 The Time Limit
9.2.2 Willful Misconduct and Equivalent Default
9.2.3 The Effective Date
9.2.4 The Relevance of the Period of Limitation
9.2.5 The Written Claim and Its Effects
9.2.6 The Laws of Individual Countries
References
Chapter 10: The Jurisdiction
10.1 The Relationship Between the Geneva Convention and Legal Systems of Individual Countries
10.1.1 The Scope of Application of Article 31
10.1.2 The Consensual Identification of Jurisdiction
10.1.3 The Alternative Criteria on the Identification of the Judge Having Jurisdiction and Their Scope
10.1.4 The Two Criteria for Identifying the Country with Jurisdiction
10.1.5 Jurisdiction, Multicarrier and Multimodal Transport
10.2 Exercise of the Legal Action
10.2.1 Remedies for the Possible Duplication of Proceedings
10.2.2 Enforcement of Decisions
10.2.3 The Arbitration Clause
10.3 The Relationship Between the Geneva Convention and European Union Regulations
10.3.1 Article 31, First Paragraph, and the Regulation (EU) 1215/2012
10.3.2 Article 31, Second and Third Paragraphs, and Regulation (EU) 1215/2012
10.3.3 The Convention Relating to Jurisdiction, Recognition and Enforcement of Judgments in Civil and Commercial Matters, Sign...
References
Table of Cases