The Gazette 1985

SEPTEMBER 1985

GAZETTE

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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