CMR: Contracts for the international carriage of goods by road

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Dangerous goods

Dangerous goods

8.1 Special provision is made in respect of dangerous goods by Article 22 of the Convention, which provides as follows:
  • 1. When the sender hands goods of a dangerous nature to the carrier, he shall inform the carrier of the exact nature of the danger and indicate, if necessary, the precautions to be taken. If this information has not been entered in the consignment note, the burden of proving, by some other means, that the carrier knew the exact nature of the danger constituted by the carriage of the said goods shall rest upon the sender or the consignee.
  • 2. Goods of a dangerous nature which, in the circumstances referred to in paragraph 1 of this article, the carrier did not know were dangerous, may, at any time or place, be unloaded, destroyed or rendered harmless by the carrier without compensation; further, the sender shall be liable for all expenses, loss or damage arising out of their handing over for carriage or of their carriage.

Goods of a dangerous nature

8.2 The first question that arises is as to what is meant by “goods of a dangerous nature”, since the Convention itself offers no definition. Clearly, however, it must refer to goods which are dangerous in themselves, rather than goods which only become dangerous, for example, as a result of the way in which they are carried. An improperly secured cargo may certainly cause danger, but unless that cargo has some inherent danger it would not be a carriage of dangerous goods within Article 22. Often, of course, such will be the nature of the goods that there is no difficulty in classifying them as dangerous, and in such cases the definition offered by Loewe may provide a workable guide: “All goods are to be considered as dangerous, if, in normal road transport, they present an immediate risk.”1 Inevitably, however, borderline cases will arise, and in such cases it would seem a logical approach to have regard to the European Agreement concerning the International Carriage of Dangerous Goods by Road (ADR).2 Any general treatment of ADR is beyond the scope of this book since it is concerned with establishing a detailed regime of documentation, packaging and method of carriage in relation to the international

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carriage of dangerous goods, rather than with regulating the relationship between the various parties to the contract of carriage.3 8.3 It should not be forgotten, however, that ADR applies to every international carriage of goods by road, regardless of whether that carriage falls within CMR, so it will also cover, for example, carriage by containers.4 8.4 Unfortunately, ADR itself does not provide any general definition of dangerous goods, referring instead to “those substances and articles the international carriage by road of which is prohibited by, or authorised only on certain conditions by, annexes A and B”.5 Annex A then goes on to list a very large number of substances and articles classified as dangerous according to the nature of the risk they present.6 It would seem likely that goods listed as dangerous in the Annexes to ADR will equally be regarded as dangerous for the purposes of CMR.7 The converse, however, namely that goods not listed in ADR are not to be regarded as dangerous for the purposes of CMR, would not be accurate for “les choses allant vite et le droit risquant de ne pouvoir jamais les rattraper”.8 In other words, in this technological age, it would be impossible for ADR to keep constantly abreast of all new developments, even assuming that it represents a comprehensive list of those substances already available that may be dangerous. In the event, therefore, of goods being tendered for carriage which are analogous to a type listed in ADR, or which represent a recent development of a type there listed, then it would seem that those goods can properly be regarded as dangerous for the purposes of CMR.9 8.5 The phrase “goods of a dangerous nature” also appears in Article IV, Rule 6 of the Hague and Hague-Visby Rules. Its meaning in that context was considered by the House of Lords in The Giannis NK,10 which concerned the question of whether a consignment

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of groundnuts amounted to goods of a dangerous nature by virtue of the fact that it was contaminated by khapra beetle. The vessel was considerably delayed as a result of having been put into quarantine and then fumigated, and incurred associated expenses. Further, the vessel was obliged to dump at sea another cargo of wheat which was on board, and faced a claim from the owners of that cargo. 8.6 It was held by the House of Lords that the words “goods of a dangerous nature” were to be given a broad meaning and were not confined to goods which were inflammable or explosive. It was sufficient that the goods were dangerous to other goods on the vessel, even if they would not endanger the vessel itself.11 Further, the risk of direct physical damage to the other goods was not required. It was enough that the resulting quarantine and dumping of the other cargo was to be anticipated from the presence of the infestation. 8.7 As a result, the shippers were liable for all damages and expenses arising directly or indirectly from the shipment of the contaminated cargo. Liability was not dependent on whether the shipper knew or should have known of the dangerous nature of the cargo.

Other relevant provisions of CMR

8.8 Assuming that the goods forming the subject matter of the carriage are dangerous within the meaning of the Convention, a number of provisions of the Convention other than Article 22 are also relevant. First, it will be recalled that Article 6(1)(f)12 provides that the consignment note must contain “the method of packing, and in the case of dangerous goods,13 their generally recognised description”, and that by virtue of Article 7(1)(a)14 the sender is responsible for all expenses, loss and damage consequent upon the inadequacy or inaccuracy of those particulars.15 It should not be forgotten, however, that the consignment note is only prima facie evidence of the terms of the contract,16 so even in the absence of the required particulars from the consignment note, it would still be open to the sender to prove that the carrier was otherwise aware of the nature of the goods. 8.9 So far as these documentary aspects of CMR are concerned, it should be noted that in respect of goods listed in ADR a “transport document” is required, which must accompany the goods and contain, if appropriate, instructions to be carried out in the event of an accident.17 If the sender has issued the carrier with an ADR transport document, this may well amount to compliance with Article 6(1)(f). 8.10 The other provision of CMR (over and above Article 22) which may be of major relevance in cases involving dangerous goods is Article 10 which, it will be recalled,

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provides that the sender is liable to the carrier for damage and expenses resulting from defective packing unless the defect was apparent or known to the carrier and no reservations were made on taking over the goods.18 Again, ADR makes detailed provision regarding the loading, handling and stowage of dangerous goods, and compliance with those requirements will again presumably be relevant, though not conclusive, as to liability under Article 10. The provisions of Articles 17(4)19 and 18(2)20 will also be relevant,21 and in view of the presumption contained in the latter the sender will clearly be well advised to ensure compliance with ADR. However, compliance with ADR will clearly be irrelevant if any failure so to comply is not causally linked to the damage which has occurred.22

Rights and obligations under Article 22

8.11 Returning to Article 22 itself, the general requirement of paragraph (1) is that the sender notify the carrier of the “exact nature of the danger and indicate, if necessary, the precautions to be taken”. It will be apparent that there is an overlap between Article 22(1) and the requirements of Article 6(1)(f) as to the contents of the consignment note, and it may well be that the information contained in the consignment note pursuant to Article 6(1)(f) is sufficient to comply with Article 22(1). However, if the information contained in the consignment note is insufficient to comply with Article 22(1), then the same paragraph goes on to provide that the burden of proving that the carrier was aware of the exact nature of the danger rests on the sender or consignee. In Germany it has been held that the sender must prove that, at the moment of delivery of dangerous goods to the driver, he drew the attention of the driver to the exact nature of the danger and also that he indicated to him the precautionary measures which should be taken. Thus, where a non-specialist driver had failed to enter the ADR class of the danger in the consignment note, the mere fact that he received an accident notice mentioning the possible dangers was insufficient to relieve the sender from liability. The sender was required to expressly draw the driver’s attention to its contents.23 8.12 Clearly, the information which must be given to the carrier in order to comply with Article 22(1) will vary with the circumstances of every case,24 as will the evidence which must be brought to show that the carrier was aware of the danger; but again, the provisions of ADR, in particular those as to the ADR transport document, are likely to be regarded as relevant, though not conclusive. Thus, in relation to a consignment of gas lighters, it has been held in a French decision that where the carrier was in possession of

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a goods docket which clearly described the consignment as consisting of gas lighters, this was sufficient to comply with Article 22(1), the nature of the danger produced by such goods being regarded as common knowledge. The carrier was thus unable to invoke the provisions of Article 22(2).25 Insofar as there was a breach of the ADR requirements,26 this was treated as being of no causative effect, the accident having been caused entirely by the negligence of the carrier’s driver in colliding with a bridge.27 8.13 There are two distinct aspects to Article 22(2). The first permits the carrier, where unaware of the dangerous nature of the goods, to unload, destroy or render them harmless at any time and wherever the goods happen to be, without incurring any liability to the cargo interests. There is no limitation expressed as to the carrier’s rights in this respect, so the question arises as to whether he must act reasonably. On the one hand, no such requirement is expressed and it might be argued that to impose any such requirement would be unreasonable, given that the carrier may be faced with an urgent decision as to what to do with the goods in circumstances where he has not been briefed as to their nature. As against this, however, such circumstances could be taken into account in deciding whether the carrier has acted reasonably.28 Further, the requirement that the carrier be aware of the “exact nature of the goods” would mean, in the absence of any requirement of reasonableness, that the carrier could act with impunity in relation to the goods in circumstances where the sender is only technically in breach of Article 22(1) and where there is no situation of imminent danger. For these reasons, it would seem that the better view is that a requirement that the carrier act reasonably in exercising his rights under Article 22(2) is to be implied into that paragraph.29 8.14 The second aspect of Article 22(2) renders the sender liable “for all expenses, loss or damage arising out of [the] handing over for carriage or of [the] carriage” of the dangerous goods.30 Liability of the sender is again dependent on the carrier being unaware of the exact nature of the danger.31 Clearly, there may here be an overlap with Article 1032 which renders the sender liable for “damage to persons, equipment or other goods33 and for any

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expenses due to defective packing…”. However, at first sight it might be argued that Article 22(2) is wider than Article 10 in that the latter provision expressly refers to liability “to the carrier”, which words do not appear in Article 22(2), hence suggesting that Article 22(2) extends to conferring a direct right of action against the sender on any third party injured or who has suffered damage. Such would be to ignore, however, the overriding limitation of the Convention to “every contract for the carriage of goods”, from which it is clear that the Convention can only operate to regulate the liability of the actual parties to the contract of carriage.34 Article 22(2) does not, therefore, confer any rights upon an injured third party, and indeed if it is only a third party who has suffered damage, the carrier would only have a claim for nominal damages against the sender, unless he has incurred any personal liability to the third party as a result of the sender’s breach of Article 22.35 In these latter circumstances, the carrier could assign his rights against the sender to the third party,36 and to that extent a third party could proceed against the sender under the Convention, but otherwise any claim by the third party against the sender would have to be in tort or delict under the appropriate national law.37 As an exception to this, it should be noted that a successive carrier under Article 34 is constituted a party to the original contract of carriage by that Article, so would be able to sue the sender direct under Article 22.38