In this era of sanitary crisis, the road transit of goods gains a new momentum, since the relevant and updated Joint Ministerial Decisions (henceforth, JMD) predict new ways of ordering goods (mainly focusing on e-commerce by e-shop, click away e.t.c.), which are often allocated to transport companies for delivery to buyers. In this article we will cover this topic of particular interest during the period of the pandemic.
Under the national legal framework, the transport of goods by land is not regulated in detail, but certain provisions apply according to the articles 95 – 107 of the greek Commercial Code, regulating the matter of carrier’s responsibility. Often, however, the provisions of the Civil Code are applied proportionally. The lack of specific regulations is supplemented by the general provisions on legal acts, bilateral contracts, but also lease contracts under articles 681 et seq of the Civil Code.
In supranational law, the rapid development of road transport after World War II introduced the idea of international legislation and the consolidation of land transport law, aiming for the provisions governing international road transport to present a uniformity, mainly for documentation and the liability of the carrier. In the field of international transport, international conventions lay down rules of substantive private international law, most notably the Geneva International Convention, now known as the CMR (Convention relative de merchandises international by route).
The International CMR Treaty should apply to any contract for the international carriage of goods by car for a fee, where the place of cargo’s loading and the the place of their delivery shall be in two different countries, as specified in the contract of carriage, one of which must necessarily be a Member State of that Treaty regardless of the place of residence and nationality of the parties. In addition, the CMR also applies where the vehicle containing the goods is carried by sea, land or air and, where the provisions of Article 14 CMR apply, the goods are not unloaded from vehicles and the CMR is normally applied.
According to article 3 of the greek law 559/1977, the carrier is held responsible for the acts and omissions of his agents and employees and for any other persons whose services he uses for the execution of the transfer, when the agents, employees or other persons act in the context of a specific employment and carry the same liability as the carrier (vicarious liability). One of the most important elements in the contract of carriage is the delivery note. The absence, irregular wording or even the loss of the delivery note will not affect the existence or validity of the contract of carriage, which will still be subjected to the provisions of the CMR. Finally, the delivery note is a prima facie proof of the conclusion of the contract of carriage, the terms of the contract and the receipt of the goods by the carrier.
The international contract of carriage governed by the CMR Treaty is essentially a project lease. When there are specific issues not regulated by the CMR, the provisions on project contract (Articles 681 et seq of the Civil Code) and bilateral contracts (Articles 380 et seq of the Civil Code) apply. If in the contract of carriage the contractor of the shipper or of the receiver undertakes for the load to be transported without explicit agreement for a transport order to find a transporter, then the CMR applies whether the transport is carried out by the client himself, as a carrier or the transport, in its entirety or partially, carried out by a another carrier. The question reasonably arises in the case of international multimodal transport, because it is understandable that orders even within the EU, but also between EU countries and third countries may be combined (sea, road and air or rail). It’s noteworthy that combined transports are based on a single contract, which is performed in part and includes at least two modes of transport. In fact, many efforts have been made to consolidate the combined agreement.
II. OBLIGATIONS AND RESPONSIBILITY OF THE CARRIER
By the time the carrier receives the goods until their delivery, he is liable for their loss, damage and delay in delivery (Article 17 par. 1 CMR). The carrier is obliged to check the accuracy of the details of the delivery note and the apparent condition and packaging of the cargo and, in accordance with Articles 7 and 8 of the CMR Convention, to make any reservations about the condition of the cargo in the delivery note. Pursuant to Article 8 (1) of the CMR Convention, the carrier is not obliged to check the condition of the cargo’s contents, unless requested by the consignor.
Such an obligation arises neither from the good faith, nor from the transactional manners. The carrier is obliged to transport the cargo received at the agreed place and is liable without fault, for any loss or damage until the delivery of the cargo as well as for the acts of the persons engaged to the transport. His liability is incorrectly objective and includes the usual coincidences, and it is an intra-contractual liability, in relation to his counterparties, which, however, does not exclude the parallel liability arising from tort, based on article 914 of the Civil Code. If the agreed terms of the contract of carriage conflict with the terms of the delivery note, the terms indicated on the delivery note shall prevail.
The carrier is obliged to compensate the receiver up to the value of the cargo – as determined at the place and time of delivery of the cargo for transport, pursuant to Article 32 (2) of the CMR Treaty – for any damage due to lack of documents and is also entitled to sue the shipper for the amount of compensation paid to the receiver. Article 23 (3) of the CMR sets the maximum indemnity which is then, converted into the national currency of the State where the dispute is settled in court.
Finally, the case of the carrier’s liability is provided for in Article 17 (2) of the CMR, if the loss, damage or delay was caused by a misinterpretation or negligence of the claimant, from the instructions provided by the claimant and not as a consequence of a misinterpretation or negligence on the part of the carrier, of a hidden defect in the goods or because of which the carrier was unable to avoid the consequences. The burden of proof will lie with the carrier under Article 18 CMR.
III. OBLIGATIONS AND RESPONSIBILITY OF THE RECEIVER
To begin with, the consignee must, upon receipt of the goods, check their condition and, in the event of damage or loss, notify its reservations to the carrier (Article 30 (1) CMR). If the damage or loss of the goods is not obvious then the notification must take place within seven working days and in written form where a general indication of the loss or damage that took place must be reported. If the consignee does not express his reservations about the damage or loss of the goods, then a presumption is created that the goods were received by the consignee in the condition indicated in the delivery note and the consignnee now bears the burden of proof that the goods were damaged or lost.
Secondly, if the consignee refuses to receive the goods, he loses the right of disposal which falls to the consignor, who no longer needs to produce the first copy of the delivery note (Articles 15 (1) (b) CMR, 12 (2). . 5 ed. Α΄ CMR).
Thirdly, if the consignee, after refusing to receive the goods, changes his mind and requests to receive the goods, the carrier is obliged to deliver the goods, unless he has received instructions to the contrary from the carrier (Article 15 (2) CMR ).
Fourthly, if the consignee had the right to dispose the goods from the beginning (Article 12 (3) CMR) and ordered the goods to be delivered to a third party and circumstances arise preventing the delivery of the goods, then the consignee is considered as the consignor and the carrier will ask him for instructions in order to complete the delivery of the goods (article 15 par. 3 CMR).
To sum up, an attempt was made to outline the current law in the transport of goods by land. Let us not forget that in every contract for the sale of mobile phones nowadays, there is also a contract for its transfer, an event that is inevitable and necessary in the period of the current health crisis due to COVID-19.
The responsibility of the carriers in the international transport of goods is located in the CMR, while in the domestic transports of application both the provisions of the commercial law and the provisions of the Civil Code are proportional, especially those of both heavy contracts and works contracts. We believe that the issue will remain relevant over time, as transport is a key parameter in the transport of goods on a universal level.