CMR: Contracts for the international carriage of goods by road

Andrew Messent and David A Glass

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CHAPTER 10 Claims and actions

10.1 The procedural aspects of claims and actions brought under the Convention are dealt with by , comprising Articles 30 to 33, which are concerned, respectively, with the making of reservations in support of claims, jurisdiction, periods of limitation and arbitration.

Reservations in respect of loss, damage or delay

10.2 Article 30 provides as follows:

1. If the consignee takes delivery of the goods without duly checking their condition with the carrier or without sending him reservations giving a general indication of the loss or damage, not later than the time of delivery in the case of apparent loss or damage and within seven days of delivery, Sundays and public holidays excepted, in the case of loss or damage which is not apparent, the fact of his taking delivery shall be prima facie evidence that he has received the goods in the condition described in the consignment note. In the case of loss or damage which is not apparent the reservations referred to shall be made in writing.
2. When the condition of the goods has been duly checked by the consignee and the carrier, evidence contradicting the result of this checking shall only be admissible in the case of loss or damage which is not apparent and provided that the consignee has duly sent reservations in writing to the carrier within seven days, Sundays and public holidays excepted, from the date of checking.
3. No compensation shall be payable for delay in delivery unless a reservation has been sent in writing to the carrier, within twenty-one days from the time that the goods were placed at the disposal of the consignee.
4. In calculating the time-limits provided for in this article the date of delivery, or the date of checking, or the date when the goods were placed at the disposal of the consignee, as the case may be, shall not be included.
5. The carrier and the consignee shall give each other every reasonable facility for making the requisite investigations and checks.

10.3 The starting point in the operation of Article 30 is the delivery of the goods,1 and its overall purpose would appear to be to ensure that the carrier is given notice of any

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impending claim against him at an early stage. The Article is designed to take account of the differing circumstances under which the goods may be delivered, the two variables provided for being whether or not the goods are checked with the carrier as they are delivered,2 and whether or not the loss or damage is apparent. As will be seen, the need to take account of these variables has produced a rather awkward piece of drafting in Article 30(1). On the arrival of the goods the consignee may do one of two things. The first possibility is that the consignee will check the goods in conjunction with the carrier,3 in which case Article 30(2) will apply. If he does not do so, then Article 30(1) will apply and the action necessary will depend on whether or not the loss or damage is apparent. If it is apparent, then the reservation must be sent at the time of delivery;4 if it is not apparent, then the reservation must be sent5 in writing within seven days of delivery, Sundays and public holidays excepted.6 10.4 If the consignee7 fails to give a reservation as required by Article 30(1), then taking delivery amounts to prima facie evidence8 that he has received the goods in the condition described in the consignment note.9 But as it is only prima facie evidence,10 it can be rebutted by the consignee or other party interested in the goods,11 and so does not

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mean that the right of action has been lost.12 Indeed, it has been argued in relation to the similar provision in the Hague-Visby Rules that the provision has no real legal effect, since the onus of proving loss or damage necessarily rests in any event on the person alleging it.13 The same argument has also been aired in German case law in respect of CMR.14 10.5 Where the consignee has checked the goods with the carrier, again the position depends on whether or not the damage is apparent. If it is not apparent, then a written reservation must be sent within seven days of the checking,15 Sundays and public holidays again being excepted. If no such reservation is sent within the prescribed time, then effectively any damage subsequently discovered will be unrecoverable, since evidence contradicting the result of the checking will be inadmissible.16 Equally, where there has been a check which has failed to discover apparent loss or damage, evidence contradicting its result will be inadmissible. 10.6 The concept of apparent loss or damage is thus central to both Article 30(1) and (2), but it is not defined by the Convention. It must, however, mean something wider than loss or damage actually discovered, since there would otherwise be no point to the distinction between apparent and non-apparent. It must therefore mean such loss or damage as is reasonably capable of discovery in all circumstances of the case,17 which would include such matters as the nature of the goods and of the packaging.18 In respect of packaging, it has been held, however, that the fact that wooden packaging arrived with traces of an impact did not necessarily mean that the machine inside was damaged and therefore that such damage was apparent.19 A good example of damage which is not apparent is provided by a French decision, where a consignment of hot-house plants

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was damaged by frost. Such damage may not become apparent for some days, and thus a failure to make reservations at the time of the check was not fatal to the claim.20 The more difficult question is to what extent the consignee is required to open up the container or other packaging in which the goods are delivered to check the contents without losing his right to make a subsequent reservation. In France, it has been held that a consignee was not required to check the contents of the container.21 10.7 It should be noted that Article 30 is concerned with the effects of not giving the required reservations. It makes no provision as to the effect of such reservations,22 and clearly the reservation on its own will not constitute proof of loss or damage.23 To this there does, however, appear to be an exception. Where the carrier has participated in the checking, Article 30(2) would apply equally to him, thus preventing him from subsequently disputing the results of the check. 10.8 A number of points of general application must now be considered.

Form of reservations

10.9 As far as the actual content of the reservation is concerned, it has been held in this country both for the purposes of Article 27(1) (written claim for interest)24 and

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Article 32(2) (written claim suspending limitation period)25 that a general intimation of intention to claim is sufficient. This must be even more the case under Article 30, where it is expressly provided that all that is required is “a general indication of the loss or damage”.26 Loewe is of the opinion that the mere words “loss” or “damage” would not be enough,27 but it would seem that the overriding purpose of the provision is to give the carrier early notice of the impending claim so as to enable him to carry out his own investigations at an early opportunity,28 and it is thought that such words entered on the consignment note or delivery order29 would fulfil this function and comply with Article 30. Such a view is supported by a French decision where the words “in poor condition” entered on the consignment note were accepted by the court as sufficient for a valid reservation.30 On the other hand, in a Belgian decision, it was held that entering the words “in bad condition” and “in bulk” on the consignment note was not sufficient, on the basis that those words could not amount to reservations in terms which would permit a court to give its decision as to the carrier’s liability.31 It may be objected, however, that such

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is clearly not the purpose of reservations under Article 30 and it is submitted that the view expressed above is to be preferred.32 10.10 Where the loss or damage is not apparent, Article 30(1) and (2), depending on which is applicable, both specify that the reservation must be in writing, which would include entry on the consignment note,33 or a separate communication sent by post,34 telex,35 or cable. Similarly, where a claim is made for compensation for delay in delivery, a reservation must be sent in writing, otherwise no compensation will be payable.36 In this case, however, the time limit is 21 days and since, as distinct from Article 30(1) and (2), no reference is made to the exclusion of Sundays and public holidays, it would seem that they are to be included in the calculation of this period. 10.11 On the other hand, the clear implication from the express provision in Article 30(1) that the reservation must be in writing for loss or damage which is not apparent is that it need not be in writing when, in the case of apparent loss, the reservation is made at the time of delivery. As against this, the word “sending” is used in respect of both situations, which seems inappropriate to describe an oral communication. It is thought, however, that the use of the word “sending” represents something of a mistranslation of the French text,37 where the equivalent word used is “addressé”, which would seem to have a broader connotation, and that “sending” in the context of apparent damage should be interpreted in the broad sense of “communicating”, so as to include both oral and written reservations. This view is supported by a decision where it was held that a reservation made by telephone is valid, if the consignee shows evidence of having made it within the time specified and with sufficient clarity. Such evidence was furnished in that case by a letter recording the contents of the telephone conversation, to which no objection was made.38 Clearly, however, from an evidential point of view it will always be in the consignee’s interests to ensure that the reservation is in writing, since it will be for him to show that the reservation has been properly made,39 although this may not be necessary where the carrier subsequently fails to dispute with reasonable promptness that an oral reservation was made at the proper time.40

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10.12 Further, proof of an oral reservation may override the appearance created by the fact that the consignee has signed for the receipt of the goods.41 So in City Vintages Ltd. v SCAC Transport International,42 Steyn, J., accepted that the consignment note which had been signed on delivery did not amount to prima facie proof of the receipt of the goods in circumstances where the driver had been aware that it was thought that there was a considerable short delivery and the word “unexamined” had been written on the consignment note and the delivery order.

Time for reservations

10.13 The time within which reservations must be made has already been explained, but some general points remain. Firstly, in the event of the consignee being aware of the loss or damage prior to delivery, there is nothing to prevent him from making a reservation to the carrier while the goods are still in transit,43 although further reservations as specified by Article 30 may be necessary in the event of further loss or damage being discovered at or subsequent to the delivery. 10.14 Secondly, Article 30(4) provides that, for the purposes of the time limits specified in the Article, “the date of delivery, or the date of checking, or the date when the goods were placed at the disposal of the consignee, as the case may be, shall not be included” in the calculation of the period. This provision can presumably have no application in cases of apparent loss or damage, since in such a case, whether under Article 30(1) or (2), the Convention specifies a particular time (i.e. the time of delivery) rather than a time limit as such.44 Thirdly, it has already been explained that, with the exception of the time limit in cases of delay, Sundays and public holidays are to be excluded.45 It would seem that whether or not a particular day is to count as a public holiday should depend on the law of the place of delivery, since the requirement to take active steps under Article 30 is on the consignee, and his ability to do within the time allowed will obviously depend on the public holidays at that place. 10.15 Finally, where a reservation is sent in writing, it is made clear by the wording of Article 30(1), (2) and (3) that the material time is the date of the sending rather than the date of the arrival of the letter,46 but clearly the consignee may be required to furnish proof of posting within the time allowed. Care should therefore be taken by consignees to keep adequate evidentiary records.

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Facilities for checking

10.16 Article 30(5) requires both the carrier and the consignee to give each other every reasonable facility for making any necessary investigations and checks. No provision is made for any penalty if either party fails to observe this requirement, but presumably any failure on the part of either party to co-operate may be taken into account by the court in deciding the liabilities of the parties. It should also be noted that the obligation is mutual, extending, for example, to a consignee wishing to examine the vehicle used for the carriage in order to check its condition, or the condition of any refrigerating equipment. 10.17 Such judicial consideration as there has been of this provision has demonstrated the limits of the obligation rather than how either party can benefit from it. Thus in a Dutch case it was held that a carrier could not seek to rely on it where the cargo of meat had been destroyed and the expert’s report would clearly have made no difference.47 In a Belgian case, where the carrier had not told the consignee of his intention of appointing an expert, it was held that he could not claim that Article 30(5) had not been complied with, given that he had been informed of the nature and extent of the damage on delivery, and that the consignee’s expert had arranged for the meat to be sold with a view to off-setting the cost of the damage.48

Practice

10.18 In general, Article 30 imposes a considerable onus on the consignee to act quickly on the receipt of goods, since under Article 30(1) his claim might to an extent be prejudiced, and under Article 30(2) and (3) he may lose his right to claim altogether. 10.19 Further complications arise where the consignee is not the claimant, since it may be the sender who is claiming, and the sender who has taken out insurance. In such circumstances the sender is dependent on the consignee for prompt action,49 both for the purposes of his own claim and for the purposes of his insurance. In addition, it may be that neither the consignee nor, where he is a sub-contractor, the carrier is aware that carriage is subject to the Convention, particularly if there is no consignment note.50 In view of these difficulties, if circumstances so permit, it may be appropriate for the sender to include in his contract with the consignee a requirement that the latter comply with the requirements of Article 30. Quite apart from such a provision, it may be good commercial practice for the consignee to inform the sender, but clearly notice to the sender cannot constitute a valid reservation under Article 30.51

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Total loss

10.20 Finally, in relation to reservations under Article 30, it will be observed that the obligation to enter reservations is dependent on delivery.52 Where, therefore, the goods have been lost no obligation arises under Article 30.53

Jurisdiction

10.21 Article 31 provides as follows:

1. In legal proceedings arising out of carriage under this Convention, the plaintiff may bring an action in any court or tribunal of a contracting country designated by agreement between the parties and, in addition, in the courts or tribunals of a country within whose territory:
- (a) the defendant is ordinarily resident, or has his principal place of business, or the branch or agency through which the contract of carriage was made, or
- (b) the place where the goods were taken over by the carrier or the place designated for delivery is situated, and in no other courts or tribunals.
2. Where in respect of a claim referred to in paragraph 1 of this article an action is pending before a court or tribunal competent under that paragraph, or where in respect of such a claim a judgment has been entered by such a court or tribunal no new action shall be started between the same parties on the same grounds unless the judgment of the court or tribunal before which the first action was brought is not enforceable in the country in which the fresh proceedings are brought.
3. When a judgment entered by a court or tribunal of a contracting country in any such action as is referred to in paragraph 1 of this article has become enforceable in that country, it shall also become enforceable in each of the other contracting States, as soon as the formalities required in the country concerned have been complied with. The formalities shall not permit the merits of the case to be re-opened.
4. The provisions of paragraph 3 of this article shall apply to judgments after trial, judgments by default and settlements confirmed by an order of the court, but shall not apply to interim judgments or to awards of damages, in addition to costs against a plaintiff who wholly or partly fails in his action.
5. Security for costs shall not be required in proceedings arising out of carriage under this Convention from nationals of contracting countries resident or having their place of business in one of those countries.

General

10.22 In the event of a dispute under the Convention which the parties are unable to resolve by agreement, the first problem in relation to bringing legal proceedings is to ascertain where the action should be brought. The object of Article 31(1) is to provide an answer to this problem without resort to the normal rules of private international law. Thus in Arctic Electronics Co. (U. K.) Ltd. v McGregor Sea & Air Services Ltd.54 Hobhouse, J.,

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said55 that provisions such as this are intended to be a self-contained code within which a plaintiff must found his assertion of jurisdiction. Consequently, any bases of jurisdiction provided by national law are excluded, unless consistent with CMR.56 However, the Convention does provide for an alternative solution in Article 33 by way of contractual provision for arbitration.57 10.23 It will be seen that Article 31(1) permits two possibilities: first, litigation in a jurisdiction chosen by the parties, and second, litigation in a jurisdiction designated by Article 31(1) itself. The first point to note is that the fact that the parties have agreed a jurisdiction does not exclude the alternative jurisdiction based on the provisions of Article 31(1)(a) and (b), since it is provided that the latter shall be “in addition” to the former.58 10.24 If the parties have agreed a jurisdiction, Article 31(1) effectively ensures that the provisions of the Convention will be applied by in effect providing that only the courts of a contracting country can be so designated.59 Curiously, no such limitation is contained in the provision for alternative jurisdiction in paras (a) and (b) of Article 31(1). It may well be that the places there specified as permissible jurisdictions are not within contracting countries, and it may be that the courts of a non-contracting country would not be prepared to apply CMR rules where they conflict with the national law. If expressly incorporated into the contract, then presumably CMR would be applied in any event, but whether it would be equally applied where incorporated into the contract only by virtue of the operation of the Convention itself must be open to some doubt in countries which are not parties to the Convention. In practical terms, however, it will often be in the best interests of the claimant to bring his claims before the courts of a contracting country, since the enforcement provisions of Article 31(3)60 only apply in respect of a judgment by a court of a contracting party.

Scope

10.25 Article 31 applies to all legal proceedings arising out of carriage under the Convention.61 It will therefore extend to extra-contractual claims referred to in

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Article 28,62 and it will also apply to legal proceedings both by the cargo interests against the carrier and by the carrier against the cargo interests.63 However, it will not cover claims which for one reason or another are not within the scope of the Convention.64 So, for example, it will not apply to a claim for total non-performance of the contract,65 nor will it apply to actions arising out of third party claims against the carrier in respect of damage to other vehicles or goods. The fact that goods being carried in the defendant carrier’s vehicle are totally or partially the cause of such loss or damage, even if they themselves are subject to carriage under CMR, will not affect the issue. Nor must it be forgotten that a carrier may in fact be carrying several consignments within a particular country, some of which are subject to CMR and some of which are subject to national domestic law. Proceedings in respect of the latter will not be affected by Article 31, but will be subject to national procedural rules. The question is also of importance in relation to shipments carried by combined transport which are not subject to Article 2, because they are unloaded from the road vehicle. These, too, will be subject to the national domestic law of the country or countries concerned.

The appropriate forum: agreed jurisdiction

10.26 Turning to consider in more detail the permissible jurisdictions under Article 31(1), the initial possibility provided for, as has been seen, is that the plaintiff may bring an action in the courts of a contracting country designated by agreement between the parties.66 A number of points arise from this provision. In the first place, an issue arises as to whether this refers to the parties to the contract of carriage or the parties to the litigation. Although noting that it was unnecessary to decide the point, Lord Mance in the BAT case67 was of the view that it referred to the latter. It follows that there is nothing in Article 31(1) to restrict the agreement as to jurisdiction to an agreement made prior

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to the performance of the contract. It would therefore seem that the parties can agree a jurisdiction after the claim has arisen, as long, of course, as it is a contracting country. 10.27 In the case of agreements as to jurisdiction prior to the carriage, as between the parties to that agreement, it will be necessary for the party alleging such agreement to show that the jurisdiction clause was part of the contract, in accordance with normal rules of contractual incorporation.68 Thus, in a French decision, where a French forwarder wished to recover from a German carrier who was partly responsible for the carriage, the latter attempted to rely on a provision of the German Forwarding Conditions (ADSP) which restricted any action to the courts of his place of business (Stuttgart). The court rejected this plea on the grounds that the jurisdiction clause was not included in the documents exchanged between the parties, nor had it been brought to the notice of the forwarder and accepted by him.69 10.28 Additional problems arise where the person claiming was not a party to the original contract. It would seem in principle that where the original parties have agreed a particular jurisdiction that this will be binding on all parties whose rights derive from the contract of carriage, the main example of such a person being, of course, the consignee.70 However, in another French decision it was held that the French consignee was not bound by a clause restricting legal action to a German court, since it was not included in the consignment note handed to the consignee. Inclusion in the contract of carriage between the sender and the carrier was not regarded as sufficient on the basis that it is only through the consignment note that the consignee is brought into the contract.71 However, it has been argued earlier that a consignment note is not generally essential, at least as between the carrier and the sender, but that it is only of evidential value as to the terms of the contract.72 For the reasons there stated, this would seem equally applicable to the present situation, particularly in view of the fact that a jurisdiction clause is not one of the matters set out in Article 673 for inclusion in the consignment note. Further, given that the consignee’s rights derive from the contract of carriage, i.e. from those of the consignor,74 there would seem no reason in principle why the consignee’s rights should not be restricted to the same extent as those of the consignor. Finally, it can be objected that there is nothing in the Convention which provides that it is through the consignment note that the consignee is brought into the contract.

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10.29 The problem of jurisdiction clauses also arises in relation to combined transport bills of lading. These commonly include jurisdiction clauses, which for other modes of transport or domestic road transport will be acceptable to the courts in many countries. Where, however, either prior or subsequently to the sea transit the consignment is subject to international carriage of goods by road, CMR may be applicable. Accordingly, where there is a claim for loss, damage or delay to the goods resulting from carriage by land any jurisdiction clause in the combined transport bill of lading will be inoperative to the extent to which it conflicts with the provisions of Article 31.75 As CMR makes no provision as to the form in which the parties must formulate the jurisdiction agreement, this will be decided by national law.76

Jurisdiction under Article 31(1)(a) or (b)

10.30 As has already been explained, whether or not there is an agreed jurisdiction, the claimant is entitled to bring his claim in another jurisdiction within Article 31(1)(a) or (b).77 Under Article 31(1)(a) the plaintiff can bring an action in the courts or tribunals of a country within whose territory the defendant is ordinarily resident,78 or has his principal place of business,79 or the branch or agency through which the contract of carriage was made. It is not clear whether the “principal” place of business refers to the defendant’s statutory or actual place of business. It remains to be seen how the courts in the various jurisdictions interpret this provision, but ideally, it should be interpreted as covering both. It should, however, be noted that although Article 31(1)(a) refers to the residence etc. of the “defendant” seemingly without qualification, this does not extend the range of potential jurisdictions in the event that one of the contracting parties has assigned its rights to a third party. Thus in Hatzl v XL Insurance Co. Ltd.80 where the cargo interests

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had assigned their rights to their English insurers, it was held by the Court of Appeal that, the purpose of Article 31(1)(a) was to confer jurisdiction on the courts of a country which had some relationship with the dispute, and so applying a purposive approach, it was held that it does not extend to the assignees of a contracting party, The English court therefore did not have jurisdiction. However, the Court of Appeal did not accept the submission that the provision was limited to claims against carriers, noting that there are various circumstances in which a carrier might have a claim against the sender or the consignee.81 The court also noted that “something has gone wrong with the grammar or translation of Article 31(1)(a)”, and concluded that “the word ‘has’ needs to be inserted before ‘the branch or agency’ (or the words ‘has his’ in place of ‘the’)”.82 10.31 The question also arises as to whether the “branch or agency” referred to in Article 31(1)(a) refers to a branch or agency of the defendant or whether it would also cover an agency of the plaintiff or some independent agency through which the contract of carriage was made. In other words, it might be argued that the possessive pronoun, appearing as it does only in relation to “principal place of business”, qualifies only that phrase and not the words “branch or agency”. However, the words “the defendant… has” must necessarily qualify both phrases, since otherwise the second half of para. (a) makes no grammatical sense at all. Ultimately, therefore, even if the word “his” only applies to “principal place of business” the rest of the sentence necessarily restricts the relevant branch or agency to that of the defendant.83 However, it is now clear that the “branch or agency” referred to applies only to the original parties to the contract of carriage. The argument in British American Tobacco Denmark A/S v Kazemier Transport B.V.84 to the effect that a successive carrier falls within this provision on the basis that it contracts through the branch or agency of the first carrier was rejected as “distorting the plain purpose and effect of the relevant provisions of CMR”.85 10.32 A further problem is that the meaning of the word “agency” is rather less than clear and could be subject to widely differing interpretations in the various jurisdictions, particularly as in common law countries it can be applied loosely to various commercial activities and has no precise legal connotation. There is no requirement as to the size of the branch or agency concerned. 10.33 Alternatively, an action can be brought in the courts or tribunals of the place where the goods were taken over by the carrier or the place designated for delivery of the goods.86 This provision presupposes that the goods have actually been taken over by

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the carrier,87 but as explained earlier this Article will not in any event usually apply to the situation that arises where there is a dispute concerning the total non-performance of a contract of carriage.88 10.34 It might be argued that where a carrier is a successive carrier within the meaning of Article 34, the “place where the goods are taken over” must refer to the place where that carrier has taken over the goods, and not where any previous carrier has done so. On the other hand, the position concerning successive carriers is regulated by of the Convention,89 which makes no reference to Article 31(1), from which it would seem to follow that no special provision was thought necessary, and that the claimant can commence proceedings in the country where the goods were originally taken over. This would also seem to make good sense, given that the claimant may not know where the goods were taken over by that carrier. A third possible approach in cases involving successive carriers would be that the claimant can at his option bring his action either where the goods were taken over by that carrier, if he knows where that was, or alternatively where the goods were taken over by the original carrier. However, in British American Tobacco Denmark A/S v Kazemier Transport B.V.90 it was “common ground, and in any event clearly correct”91 that it refers to the places designated under the contract between the consignor and the first carrier.92 10.34A With regards to claims in tort against a sub-carrier who is not a successive carrier, there would appear to be an even stronger argument that the “place where the goods are taken over” must refer to the place where that carrier has taken over the goods. However, this is not the position in Germany where the courts still apply the original place of taking over for the purpose of Article 31(1)(b) and not the place of taking over by the sub-carrier.93 The position is different where a direct recourse action is brought by

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a contracting carrier against its sub-contracting carrier.94 Under the CMR contract between them, the place where the sub-carrier takes the goods over is now the relevant place.95 10.35 A related issue came before the English courts in the case of Moto Vespa S. A. v MAT (Brittania Express) Ltd.96 In that case, goods were to be transported from Birmingham to Madrid. The defendant carrier sub-contracted the portion of the carriage from Birmingham to Perpignan, and only took over the goods themselves at Perpignan, after which the consignment was damaged. It was held, applying the decision of the Court of Appeal in Ulster-Swift Ltd. v Taunton Meat Haulage Ltd.,97 that the defendant as the principal carrier was carrier for the purposes of the entire journey, and that the English court therefore had jurisdiction, the goods having been taken over at Birmingham. 10.36 Two final points require mention. Firstly, the actual place where the loss or damage occurred is not relevant in establishing which courts have jurisdiction, except indirectly in as much as it may determine which carrier may be sued in the case of successive carriage.98 Secondly, it would seem that the question of which court or tribunal within a particular country will have jurisdiction over a particular dispute will, of course, depend on the national law. It differs from country to country as to whether the jurisdiction of a particular court is based on locality, the value of the claim or whether it is a commercial or civil dispute.99 In England, it was argued at first instance in the case of Andrea

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Merzario Ltd. v Internationale Spedition Leitner Gesellschaft GmbH 100 that where goods were collected in Scotland for carriage to Austria, proceedings commenced in England should be set aside or stayed on the grounds that the English court had no jurisdiction to try the claim under Article 31(1)(b) of the Convention. It was held that the claimant was entitled to bring this action in any court of the United Kingdom since the United Kingdom as a whole is the contacting country for the purposes of the Convention, subject to the possible application of forum non conveniens.101

Potential duplication of actions

10.37 It will have been observed from the above that the provision of Article 31(1) can produce a situation where there is more than one permissible jurisdiction under the Convention. The purpose of Article 31(2) is therefore to avoid duplication of actions, which is achieved by providing that where a claim within Article 31(1)102 is pending before a court or tribunal,103 or where a judgment has already been obtained, then no new action can be started between the same parties on the same grounds unless the judgment of the first court is not enforceable104 in the country where the subsequent proceedings are commenced. This prohibition applies to any new action “between the same parties”, so it will apply equally to attempts by the defendant to counterclaim in another jurisdiction.105 But if there is an alternative plaintiff,106 or an alternative defendant,107 then further proceedings could be brought, assuming that the further claim was still within the period of limitation. It was held in Sony Computer Entertainment Ltd. v RH Freight Services Ltd.108 that although there may be cases in which insured and insurer can properly be regarded as the same party for the purposes of this provision,109 such was not the case in

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the circumstances before the court, due to an uninsured policy deductible and a potential claim for damages over and above the insured claim. 10.38 The words “action is pending” used in Article 31(2) are not defined. However, the specific reference to “before a court or tribunal” must mean that at least some step in the action has been taken. The French text makes the position clearer, stating that the subsequent claim must be suspended when “une action est en instance devant une jurisdiction compétente”. In England, an action commences once the writ is issued, which must therefore be the earliest point at which an action could be considered to be pending. A similar question arose before the English courts in the case of Dresser (U. K.) Ltd. v Falcongate Freight Management Ltd.,110 in the context of the Brussels Convention as to whether for the purposes of Articles 21 to 23 of the Brussels Convention111 another court was “first seised” of a dispute, which in turn depended on whether the action was pending before a court. While not strictly directly relevant to CMR, the underlying considerations which underpin the current position of the English courts in that context would seem to have equal relevance to the proper interpretation of CMR. The Court of Appeal considered that while this had to be determined under English law in the context of English procedure, in determining the effect of national law for the purposes of the Convention, regard must be had to its international purposes. Whereas English authority showed that an action was pending once it was brought, and that the action was brought once the writ had been issued, the Continental practice, while varying in detail, was such that the courts on the Continent would not ordinarily regard themselves as seised of proceedings until (at the earliest) the proceedings had actually been served on, and thus brought to the attention of, the defendant. Given the limited involvement both of the court and the defendant in the action at the stage of issue of the writ, the court held that the English action only became definitely pending once the writ had been served.112 Shortly after the decision in that case, the same conclusion was reached in relation to the CMR Convention in the case of Andrea Merzario Ltd. v Internationale Spedition Leitner Gesellschaft GmbH 113 where although Austrian proceedings had been commenced before the English proceedings, the English proceedings were served first. It was held by the Court of Appeal that, to be “pending” for the purposes of Article 31, it was necessary for the proceedings to have been served. Subsequent to this case, the Judgments Regulation114 came into force, replacing the Brussels Convention, whereby it was provided that for the purposes of the Regulation, a court is deemed seised from the time when the document instituting the proceedings is lodged with the court.115 Nevertheless, in the later case of Sony Computer Entertainment

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Ltd. v RH Freight Services Ltd.,116 it was held on the basis of the Andrea Merzario case that the English proceedings were not pending until served, without any reference in the judgment to the change introduced by the Judgments Regulation referred to above, and notwithstanding the fact that in the Andrea Merzario case, Rix, L.J., had been of the view that the CMR Convention should follow the interpretation of the Brussels Convention in this respect.117 At first instance in the case of Royal & Sun Alliance Insurance PLC v MK Digital FZE (Cyprus) Ltd.,118 in circumstances in which proceedings had been issued in England but not yet served at a time when proceedings were alleged to have become pending in France, despite the obiter views of Rix, L.J., to the contrary in the Andrea Merzario case, a distinction was drawn between proceedings being pending for the purposes of Article 31(2) and the injunction against a “new action” being started. Although the English proceedings were not pending, proceedings having been issued but not served, it did not constitute a new action. Since the CMR Convention did not provide an answer in that situation, Aikens, J., proceeded to decide the issue on the basis of the Judgments Regulation. On that basis, the English court was first seised by virtue of Article 30 of the Regulation,119 so despite the fact that the proceedings had not been served, the English court had jurisdiction.120 10.39 The English version of the text prohibits further actions “on the same grounds”. This would seem to suggest that another action can be commenced in another jurisdiction based on the same facts, but pleaded on different grounds. That this was not the intention is made clear by the French text, which prohibits further action “pour la même cause”, and unless Article 31(2) is applied in this way it would open the way to possible “forum shopping” in the event of it being possible to formulate alternative grounds for the claim.121 10.40 A limitation on the scope of Article 31(2) arose in the case of Frans Maas Logistics (U. K.) v CDR Trucking B. V.122 In that case proceedings for a negative declaration had been commenced in the Netherlands by the last carrier against the cargo interests and the other carriers. Before the conclusion of the Dutch proceedings, proceedings were commenced in this country against the last carrier by the first carrier, to whom the cargo interests had assigned their rights. It was common ground between the parties that the English proceedings raised substantially the same issues as those involved in the Dutch proceedings. The last carrier, the defendant in the English proceedings, applied for a stay of those proceedings on the basis of Article 31, or in the alternative on the basis of Articles 21 and 22 of the Brussels Convention. 10.41 Having held that the Convention contained nothing which prevents the increasingly common practice of proceedings for a declaration of non-liability, Colman, J., then

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drew a distinction between paragraphs (1) and (2) of Article 31. He held that the judgments referred to in Article 31(2) contemplated only those judgments which potentially involved enforcement proceedings. In his view, enforcement proceedings would not be commenced in another jurisdiction if the initial proceedings were concerned only to obtain a negative declaration. As he put it, although such a declaration might be recognised elsewhere, it would not be the subject of enforcement. Accordingly, in his view, Article 31(2) did not prevent a claim for an enforceable remedy in the courts of one country where proceedings for a negative declaration were pending before the courts of another country. However, he concluded by staying the English proceedings in any event under Articles 21 and 22 of the Brussels Convention. The opposite conclusion was indicated by the majority of the Court of Appeal in the Andrea Merzario case.123 Having decided, as explained above, that the Austrian proceedings were not pending for the purposes of Article 31(2), it followed that the English court had jurisdiction in any event. It was therefore unnecessary to address the question of whether a claim for a negative declaration came within Article 31(2). Nevertheless, the issue was dealt with, obiter, at some length on the basis of its “obvious general importance”.124 Rix, L.J., concluded that he would have reached the same conclusion as Colman, J., in the Frans Maas case, albeit on partly differing grounds. Chadwick, L.J., reached the opposite conclusion: “If, as appears to be recognised on all sides, claims for declarations of non-liability are common in continental jurisdictions, it seems to me that art.31(2) must have been intended to include them.”125 Morritt, V.C., agreed with the latter view. This view corresponds with that of the ECJ in the case of Nipponkoa Insurance Co (Europe) Ltd. v Inter-Zuid Transport B.V.,126 that for Member States of the EU it is not possible for Article 31(2) to be interpreted in a way that means that an action for a negative declaration or a negative declaratory judgment in one Member State is not the same cause of action as an claim for indemnity between the same parties in another Member State.127 10.42 Apart from the question of a judgment which may be unenforceable in the country of original jurisdiction, which is discussed in the next paragraph, it will be noted that there are two other situations where Article 31(2) may not operate so as to prevent further claims. Firstly, a claim might be brought in a jurisdiction which is not competent within the meaning of Article 31(1), and secondly, a court may feel compelled to accept proceedings on the basis of doubts as to the meaning of when a claim can be said to be “pending” in another jurisdiction for the purposes of Article 31(2). In either of these situations, in this country the provisions of section 3 of the Carriage of Goods by Road

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Act 1965 may be of assistance. That section permits the courts of this country to take account of any other proceedings, in this country or elsewhere, which have been or are likely to be commenced to enforce a liability which is limited by Article 23.128

The enforcement of judgments

10.43 As will have become apparent, by virtue of the provisions of Article 31(1), as to jurisdiction the claimant’s action may well be brought in a country with which the defendant has no real connection. Potentially, this could cause difficulty for the claimant in the event of it transpiring that the defendant has no assets within that jurisdiction with which to satisfy the judgment. With a view to providing for such situations, or indeed for any situation where the plaintiff wishes to enforce a judgment otherwise than in the country in which it was obtained, it is provided by Article 31(3) that once an enforceable judgment had been entered by a court of a contracting country129 in any action within Article 31(1), that judgment will become enforceable in all other contracting countries. This is subject only to the necessary formalities specified by the national law of the country in which the judgment is to be enforced, and Article 31(3) specifically provides that such formalities are not to enable the merits of the case to be reopened. 10.44 The enforcement of foreign judgments in this country is regulated either by the Foreign Judgments (Reciprocal Enforcement) Act 1933 or by the EU provisions dealing with jurisdiction and the enforcement of judgments in Member States and in certain other European States.130 By section 4 of the Carriage of Goods by Road Act 1965, Part I of the 1933 Act applies to judgments within Article 31(1) of the Convention obtained before the courts of another contracting State which has become enforceable in that country. Detailed consideration of the 1933 Act is beyond the scope of this book,131 but basically it provides for the registration in this country of judgments to which the Act applies, by application to the High Court. Once registered, such a judgment has the same effect as a High Court judgment. The registration can be set aside, inter alia, if the courts of the foreign country had no jurisdiction in the circumstances of the case.132 If therefore the

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defendant can show that the judgment was obtained otherwise than before the courts specified in Article 31(1), he would be entitled to have the registration of the judgment set aside for want of jurisdiction.

Enforceable judgments

10.45 The other limitation inherent in Article 31(3) is that before a judgment becomes enforceable in other jurisdictions it must have become enforceable in the country where judgment was first given. It will be up to the courts of the country where the plaintiff seeks to enforce the judgment to decide whether the judgment has become enforceable in the country of the original judgment. In this country, the application for registration133 under the 1933 Act must be supported by written evidence confirming inter alia that the judgment is enforceable in the country of original jurisdiction, and that if the judgment is registered, the registration could not be set aside under section 4 of the Act.134 That section then specifies the circumstances where, on the application of the other party, the registration of the judgment must, or may, be set aside. The judgment must be set aside where it has been registered in contravention of the Act, and a judgment which is not enforceable in the country of original jurisdiction is not one which can be legitimately registered.135 10.46 The onus therefore is initially on the applicant for registration of the judgment to satisfy the court on his ex parte application that the judgment is enforceable in the country of original jurisdiction. It is then open to the other party subsequently to apply to the court for the registration to be set aside, whereupon the onus will be on that party to satisfy the court that the judgment is not enforceable in the country of original jurisdiction. The 1933 Act gives some guidance as to what criteria are to be taken into account in this respect. A judgment is deemed final and conclusive notwithstanding that an appeal is pending or that it may be subject to appeal,136 although in such circumstances, on application for setting aside the registration, the court can either set aside the registration or adjourn the application to permit the applicant reasonable time to have the appeal disposed of.137 Where the judgment is set aside, either under this provision or because the judgment was not enforceable in the country of original jurisdiction, this does not prejudice a subsequent application to register the judgment when the relevant circumstances have changed.138 10.47 As between Member States of the EU, regard must be had to the Regulation on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters.139 This

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Regulation does not override the provisions of CMR as to jurisdiction since Article 71 expressly provides that it does not affect any other conventions to which Member States are parties which govern jurisdiction or the recognition or enforcement of judgments.140 However, according to the case law of the ECJ, Article 71 is subject to the underlying principles of the Regulation and cannot have a purport that conflicts with those principles.141 In consequence, an interpretation of a CMR provision considered to be in conflict with them may be unenforceable in a Member State.142 In general, however, this provision should preserve the rules of CMR insofar as they are applicable to the dispute. In British American Tobacco Denmark A/S v Kazemier Transport B.V.,143 Lord Mance144 considered that there was neither a gap in Article 31(1) of CMR that needed to be filled by reference to the Brussels Regulation,145 nor did Article 6(1) of the Regulation prevail over Article 31(1) of CMR.146 The Regulation, however, will still regulate those matters which are not regulated by CMR.147 10.48 In respect of the recognition and enforcement of judgments, further guidance is provided by Article 71(2)(b) of the Regulation, which provides that judgments given in a Member State by a court in the exercise of jurisdiction provided for in a convention on a particular matter shall be recognised and enforced in the other Member States in accordance with this Regulation and that where a convention on a particular matter to which both the Member State of origin and the Member State addressed are parties lays down conditions for the recognition or enforcement of judgments, those conditions shall apply but that in any event, the provisions of this Regulation on recognition and enforcement of judgments may be applied. Article 31(3), however, can be said to lay down conditions for the recognition of judgments in respect of CMR and should, therefore,

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take precedence148 over any contradictory rule in the Brussels Regulation where the two States involved are parties to CMR.149 10.49 The provisions of Article 31(3) as to the enforcement of judgments only apply to judgments after trial, judgments by default and settlements confirmed by court order.150 Interim judgments are excluded from its ambit, as are “awards of damages, in addition to costs against a plaintiff who wholly or partly fails in his action”.151 This last part of Article 31(4) is strangely phrased,152 but its meaning becomes clearer with reference to the French text which uses the words “en sus des dépens” (over and above) instead of the words “in addition to” in the English text.153 In other words, the paragraph prevents awards of damages over and above costs against an unsuccessful plaintiff: costs can be awarded against him, but damages cannot be. This is presumably not intended to affect a successful counterclaim by the defendant, but is aimed at such jurisdictions as permit an award of damages against the plaintiff for bringing a claim in the first place. In this country no such awards of damages are in any event possible.

Security for costs

10.50 Since Article 31(3) effectively ensures that judgments obtained in one contracting country will be enforceable, together with any award of costs, in any other contracting country, the Convention provides that security for costs in proceedings arising out of carriage under the Convention cannot be demanded from nationals of contracting countries resident or having their place of business in one of those countries.154 Thus, the normal rules as to security for costs in this country are necessarily excluded in such claims.155 This would apparently equally be true of a claim between two nationals of this country, but Loewe is of the opinion that in such circumstances the rule would not apply, and the national rules as to security for costs would be applicable.156 Although from a purposive approach this may represent the better view, the Convention makes no such provision, and in the same way as the general provisions of the Convention would prevail over any national law to the contrary in cases governed by it, so it would seem that it must also prevail over national rules as to security for costs.

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Limitation of actions

10.51 The period of limitation under the Convention is dealt with by Article 32, which provides as follows:

1. The period of limitation for an action arising out of carriage under this Convention shall be one year. Nevertheless, in the case of wilful misconduct, or such default as in accordance with the law of the court or tribunal seised of the case, is considered as equivalent to wilful misconduct, the period of limitation shall be three years. The period of limitation shall begin to run:
- (a) in the case of partial loss, damage or delay in delivery, from the date of delivery;
- (b) in the case of total loss, from the thirtieth day after the expiry of the agreed time-limit or where there is no agreed time-limit from the sixtieth day from the date on which the goods were taken over by the carrier;
- (c) in all other cases, on the expiry of a period of three months after the making of the contract of carriage.

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