317 / 406
GAZETTE
SEPTEMBER 1985
effect of suspending the limitation period from running
against all the carriers under Article 32.2 of the CMR Rules.
Furthermore, although Article 32.2 did not require any
particular formality it did require that a written claim be
addressed to the carrier against whom the owner of the
goods are claiming if the limitation period was to be
suspended under Article 32.2 in respect of that carrier.
Mere knowledge on the part of one carrier that the owner
of the goods was suing another carrier who intended to
sue him was not sufficient to suspend the limitation
period in respect of any claim that might be made against
him by the owner. In that Case evidence was given that the
written claim made against the first Defendant had been
referred by it in a telex to the third Defendant and in a
letter enclosing a copy of the telex from the third
Defendant to the second Defendant. Within a week of the
consignor's written claim to the first Defendant the
second named Defendant was aware of the claim but not
as a result of any direct notification to it by the
consignors. It is true that Article 34 provides that if
carriage governed by a single contract is performed by
successive road carriers, each of them shall be responsible
for the performance of the whole operation, the second
carrier and each succeeding carrier becoming a party to
the contract of carriage under the terms of the
consignment note by reason of his acceptance of the
goods and the consignment note. One might well ask
therefore why it would be necessary to preserve the time
limit against a number of carriers so long as one was
within the time limit in relation to one of them. Sadly, the
answer to this question can be all too readily found in the
number of hauliers who have gone out of business over
the past few years and it is small comfort to a claimant to
find that he is within the time limit for maintaining a claim
against an insovlent carrier while he is out of time in his
claim against a subsequent carrier under the same
contract who may be financially sound.
Proofs
Finally, to deal with the Proofs which are advisable in
CMR claims. Obviously, each case has to be considered
separately, but there are a number of matters which
would be common to most CMR claims. Assume that an
Irish meat producer has sent a consignment of chilled beef
by refrigerated trailer to Italy on foot of an international
consignment note incorporating the CMR Rules. A claim
against the carrier is made by either the consignor or
consignee because the goods are found to be damaged on
their arrival. From the claimant's point of view the
necessary proofs would appear to be as follows:
1. The claimant must first prove that the claim is
subject to the CMR Rules. This is done by
producing the consignment note which refers to the
incorporation of the Rules. The consignment note
may or may not be signed but if it is not the existence
or validity of the contract of carriage is not
necessarily affected. (See Article 4 of the
Convention). It is, of course, necessary for the
claimant to prove that the Convention did apply
and in Ireland that involves proving the agreement,
either express or implied, of the carrier to those
terms. The production of the consignment note with
the carrier's signature on it is conclusive evidence. If
there is no signature but the carrier actually carried
the goods on foot of the consignment note that will
usually be proof enough if the particulars required
in Article 6 are set out. These will usually include the
name of the carrier. If a previous course of dealing
between the parties can be established whereby it is
clear that the carrier habitually carries such goods
on foot of the CMR Rules that may be sufficient and
a witness may be called to prove that course of
d e a l i n g. C o r r e s p o n d e n ce and p r e v i o us
consignment notes will also assist a Court in
establishing that this is the basis on which the
parties have always dealt with each other.
2. Secondly, the claimant must prove that the carrier
received the consignment in good order and
condition. In our hypothetical case this will most
readily be proved by calling the veterinary inspector
who inspected the consignment before shipment
and by production of the veterinary health
certificate for the meat. The issuing of a
consignment note without any reservation endorsed
on it by the carrier will be
prima facie
evidence that
the consignment was received in good order and
condition. Although the killing records in the
factory and the chilling records of the carcasses are
not necessary proofs for the establishment of the
claim, it is always desirable to have those
documents in Court, as they may provide the
essential rebutting evidence where the Defendant
raises one of the Defences open to him under the
Convention, such as inherent vice or defective
condition or packing and so on. In a great many
cases involving the carriage of chilled meat the
consignments are found to have deteriorated on
arrival without any material fault in the refrigerated
container. In such cases a dispute usually arises as to
whether the meat was insufficiently chilled prior to
being put into the container or whether the meat
had only been killed on the same day or shortly
beforehand and had not been brought down to the
required temperature. It must be remembered that
the refrigerated containers are designed to maintain
meat at a certain temperature but not to bring the
temperature of the meat down.
3. Thirdly, the claimant must call a witness (usually a
surveyor) to prove that when the meat arrived at its
destination it was damaged. When meat is found to
had arrived damaged all the interested parties to the
contract of carriage appoint their own surveyor and
while there is often agreement between them as to
the cause of the damage, experience shows that the
different surveyors frequently postulate different
theories and their evidence is required.
4. It is necessary to prove the amount of the loss which
has been suffered and which must be calculated by
reference to Article 23 of the Convention. The
invoice showing the sound value of the meat will be
produced together with any credit notes which may
have been issued in respect of the damaged meat, or
alternatively invoices showing the salvage value of
the meat. Survey fee invoices will also be produced.
5. Finally, a complete file of all telexes and corres-
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