Softening of the CMR liability limits - legal possibilities
The "standard liability" of the CMR, i.e. the limitation of liability of Art. 23 Para. 3 CMR (8.33 SDR/kg), is now hardly a foreign concept in the transport industry. Less well known, however, are the possibilities of extending or waiving this and other CMR liability limits by mutual agreement between the principal and the carrier.
These are essentially to be found in Art. 24 and 26 CMR and consist of the possibility of naming a certain value of the transported goods as well as the agreement of a "special interest". At first glance, the two provisions appear - if not redundant - then at least overlapping. However, they have a different scope of application and significantly different legal consequences.
– Artikel 24 CMRThe sender may, against payment of a surcharge to be agreed upon, declare in the consignment note a value of the goods in excess of the maximum amount specified in article 23, paragraph 3, in which case the amount declared shall take the place of the maximum amount.
1. the value indication
Damage to goods; if compensation for financial loss is also desired (e.g. loss of profit or compensation for a contractual penalty agreed between the consignor and consignee), the declaration of interest in accordance with Art 26 CMR must be used.
In practice, however, the declaration of value according to Art 24 is only used occasionally. The reason for this is not only the fact that separate transport insurance is often taken out for particularly valuable goods anyway, but also the case law of the courts: the more often gross negligence is established in the case law and the limitation of liability is broken through by Art 29 CMR, the less sense it makes for a consignor to agree the special declaration of value according to Art 24. Or to put it somewhat polemically: Why pay a surcharge for the removal of the liability limits when you can often get them for free?
Prerequisite for effectiveness
In any case, a corresponding agreement between the carrier and the client is required. This must be mutually agreed and cannot be imposed unilaterally. However, the entry in the consignment note by the consignor can, under certain circumstances, be understood as an offer to the carrier - which the latter can in turn accept without saying a word. However, mere silence on the part of the carrier does not constitute a declaration of acceptance.
Nor may a shipper assume that an average truck driver is authorized to make agreements for the carrier in accordance with Art. 24. It is therefore not advisable to have the driver sign such an agreement at short notice.
A further prerequisite for the legally effective declaration of value is the entry of the value in the consignment note. According to the wording of Art 24 CMR, this is mandatory and cannot be replaced by a reference in other documents (such as a framework agreement). Unfortunately, this only applies with reservations - in a similar situation, the OGH, a supreme court based in Austria, ruled in an international air freight case that the lack of a declaration of value in the consignment note (issued by the freight forwarder) does not affect the legal validity. It is to be hoped that tendencies of this kind will not spread to road freight law (Art 24/26 CMR).
Legal consequences
In the case of an effective agreement according to Art. 24 CMR, the value stated in the consignment bill replaces the liability limits of Art. 23 and 25 CMR. However, the obligation to pay compensation is still limited by the actual damage suffered!
This puts a stop to any possible enrichment by the sender in the event of damage.
– Artikel 26 CMR1. against payment of a surcharge to be agreed upon, the sender may determine the amount of a special interest in the delivery in the event of loss or damage and in the event that the agreed delivery period is exceeded by making an entry in the consignment note.
(2) If a special interest in the consignment has been declared, compensation may be claimed for further proven damage up to the amount declared as interest, irrespective of the compensation provided for in articles 23, 24 and 25.
While Art 24 offers the possibility to increase the liability limits of Art 23, 25 CMR to the agreed amount for direct damage to the goods by declaring a higher value, the declaration of interest according to Art 26 CMR allows compensation for loss of profit and indirect damage. The carrier's liability for compensation is limited - analogous to Art. 24 - by the declared value.
Prerequisite for effectiveness
The same conditions apply as for Art. 24; in particular, mutual agreement and entry in the consignment note.
Legal consequences
If a special interest is agreed with legal effect, this has the consequence that even outside of Art 29 CMR ("gross negligence") all damages are to be compensated up to the amount of the declared interest. However, the CMR does not regulate exactly what these are in individual cases. The applicable national law must therefore be consulted for such an assessment.
In most European legal systems, in the event of loss, damage or exceeding the delivery deadline, so-called mere financial losses and consequential damages must also be compensated.
However, it should be noted here: The declaration of a special interest is not a flat-rate contractual penalty! The claimant can only demand compensation for damage actually suffered and proven.
Conclusion
The two liability variants may only be used in isolated cases - also due to the strict effectiveness requirements - but as a specialist broker for the transport industry, we are nevertheless repeatedly confronted by our customers with the desire to find cover solutions for these liability risks.
Such insurance products are available on the market and in the case of agreements in accordance with Art. 24, 26 for individual contracts or cooperations, it also makes sense to insure this additional risk.
However, we recommend that freight forwarders inform themselves as comprehensively as possible in advance about the special liability agreements and weigh up the surcharges offered against the higher liability risks. The aim of the "standard liability" of the CMR is to protect carriers in particular from the pressure of the transport industry. In view of the usual margins in the transport industry, it is not without reason that these have been set at the level that still applies.
Even the conclusion of an insurance policy cannot replace the necessary economic consideration; the higher risk is naturally reflected in the premium amount. Experience has shown that blanket insurance of agreements in accordance with Art. 24 and 26 is often not economically advantageous for the haulier/forwarder concerned.
The Lutz Assekuranz Versicherungsvermittlung GmbH team will provide you with further support on this topic: experienced specialists who will actively support you in order to ensure competent argumentation vis-à-vis the parties involved on the one hand and comprehensive cover through the best possible cover concepts on the other.