The Gazette 1985

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- 305