Damage to Cargo During Carriage by Sea Covered by CMR Consignment Note
The International Convention for the Unification of Certain Rules Relating to Bills of Lading of 25 August 1924, better known as the Hague-Visby Rules, is the law applicable to contracts of carriage made “in a bill of lading or any similar document serving as a document of title for the carriage of goods by sea“, which means that its provisions apply to claims arising out of any damage or loss, preservation, stowage, carriage, supervision and discharge of cargo.
On the other hand, the Instrument of Accession of Spain to the Convention on the Contract for the International Carriage of Goods by Road (CMR), done in Geneva on 19 May 1956, shall apply to claims arising from land transport contracts formalised under the CMR document. For national transport, Law 15/2009, of 11 November, on the contract of carriage of goods by land, shall be applicable.
Both regulations provide for different regulations in their fields of application which, apart from general features such as the limitation of the carrier’s liability, are quite different.
This does not seem to pose a problem when both means of transport are not combined; however, the issue becomes more complicated when we find cases, much more common than might be imagined, in which different means of transport coexist to carry out the transport of certain goods under a single transport document (land – air – land // land – maritime – maritime, etc.).
In this specific case we will analyse, we are dealing with the transport of goods on a lorry, loaded in a factory in Burgos and bound for Cheltenham (United Kingdom), in which the need arises to load it onto a ferry from Santander to Portsmouth (United Kingdom) to complete the transport by sea crossing the Cantabrian Sea. There is a maritime transport, but this international transport contract is documented in a consignment note governed by the CMR Convention. In this case, which law will be applicable to damage occurring during the maritime transport phase, the CMR Convention or the Hague-Visby Rules?
Article 2.1 of the CMR Convention stipulates that in cases where one of the stages of a carriage covered by a CMR consignment note is carried by sea, without freight interruption, i.e. without unloading the goods, the CMR Convention will apply (complete transfer of the load with the truck or trailer); however, this regulation will not apply when the freight is interrupted, as in the case of a container, initially loaded on the platform of a truck, which is then loaded on board a ship, and subsequently reloaded onto another truck trailer.
Nor does the CMR Convention apply where it is proved that, in a carriage under a CMR consignment note without freight interruption, damage has occurred during the maritime phase; in this case, the potential liability of the road haulier will be determined in the way liability has been established for the maritime carrier.
In conclusion, for the law governing the non-road means of transport, in our case the Hague Visby Rules, to apply, it is required that the loss or damage was not caused by an act or omission of the road transport operator, and that such loss or damage could only have occurred during the carriage of the road vehicle on board the ship.
In any case, the identification of the applicable law is of vital importance, especially in terms of statutes of limitation and/or lapse of time, protests, or actions to be taken. Each case should be studied with the support of experts in the field.
