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GAZETTE
SEPTEMBER 1985
Conduct of a Legal Action brought
on foot of the C.M.R. Rules*
by
Brian J. McGovern, B.L.
T
HERE has, over the years, been remarkably little
interest shown by successive Irish Governments in
international maritime conventions. Even where this
country ratified such conventions and incorporated them
into legislation, little or nothing has been done to give
effect to revisions which have been made from time to
time to such conventions so as to bring them up to date
and make them more relevant to the needs of today. An
obvious example is the Hague Rules.
Fortunately, the world of commerce does not appear to
suffer from the same inertia as our legislators and there
has been a willingness on the part of Irish traders and
carriers to use conventions which have not been ratified
by this State or incorporated into our legislation where it
is felt that such conventions have a useful role to play and
where they are in common use in many of the countries
with whom we trade. The CMR Rules are an example in
point.
In the United Kingdom the CMR (Convention relative
au contrat de transport international de marchanduses
per route) Rules have been incorporated into legislation
by virtue of the Carriage of Goods by Road Act, 1965
which sets out the text of the Convention in the Schedule
to the Act. In the same way the Merchant Shipping Act,
1947 incorporates the Hague Rules into our legislation. In
this country the CMR Rules can only apply by contract.
Such contracts are confirmed by making out a consign-
ment note which is in a standard form and contains the
particulars required by Article 6 of the Convention. In
maintaining a claim for loss or damage sustained by a
party who has goods carried under the terms of the CMR
Rules, the procedures relating to a claim for breach of
contract apply with some exceptions. Although the
amount of loss or damage suffered by a claimant is
usually ascertainable it is not a claim for the recovery of
liquidated damages which can give rise to proceedings by
Summary Summons. The correct procedure is to claim
damages for breach of contract on foot of a Plenary
Summons which should then be followed by delivering a
Statement of Claim in the usual way. An action brought
in such form is heard as a non-Jury action on the
Common Law side. The only obvious difference between
a CMR claim and any other claim for damages for breach
of contract arises out of the wording of Article 17.1 of the
CMR Rules which states:
"The carrier shall be liable for the total or partial
loss of the goods and for damage thereto occurring
between the time when he takes over the goods and
the time of delivery, as well as for any delay in
delivery."
It follows from this statement that once a claimant has
proved that a contract of carriage was governed by the
CMR Rules and that the carrier received goods in good
order and condition and that there was either total or
partial loss of the goods that the onus of proof then shifts
to the carrier. The claimant does not have to show that the
carrier was negligent but it is for the carrier to show that
he comes within the scope of one of the defences open to
him under Article 17.2 or Article 17.4 of the Convention.
The burden of proving that the loss, damage or delay was
due to one of the causes specified in article 17.2 rests upon
the carrier. It is this shifting of the onus of proof which
distinguishes a CMR claim from most other actions for
breach of contract and indicates the importance of
establishing that a particular contract of carriage may be
subject to the terms of the Convention.
Where goods, which are carried under the CMR Rules,
are lost or damaged either the consignor or consignee can
sue the carrier. A consignment note which is signed by the
consignor and the carrier is evidence of the contract of
carriage which has been made between those parties. On
the face of it there would appear to be no privity of
contract between the carrier and the consignee and,
accordingly, if the goods were lost or damaged at a time
when they had become the property of the consignee it
might seem as though the latter had no cause of action in
contract against the carrier. But this is not so. Article 13 of
the Convention provides that the consignee shall be
entitled to enforce in his own name against the carrier any
rights arising from the contract of carriage.
Preliminary Matters
Before reviewing the proofs which are required for a
CMR action there are a number of matters which require
consideration and may avoid expense. Many CMR claims
involve witnesses being brought from abroad to give
evidence as to the nature of the damage to the goods being
carried. For example, where a consignment of meat has
deteriorated in transit a surveyor will be appointed to
represent each of the interested parties and the claimant's
surveyor will generally have to travel to give evidence as
to what he found on inspection of the goods. Occasionally
a claim is brought against a carrier who is financially
unsound and does not enter an Appearance or, if he has,
does not follow the Appearance with a Defence. The
normal procedure for obtaining a Judgment in Default of
Appearance or Defence in a breach of contract claim is to
look for damages on the Statement of Claim by bringing
the matter before the Court on foot of a Notice of Motion
and proving service of the proceedings (in the case of a
Motion in Default of Appearance) and service of the
Notice of Motion. An Affidavit is not usually sworn to
ground the Application for Judgment; the Order which is
generally made is for Judgment in the terms of the
Statement of Claim and a direction that damages be
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