CMR Have We Reached the End of the Road? Issues in question

Transcription

1 60 Years CMR Future proof or time for a reform? Erasmus School of Law 6 7 October 2016 Friday 7/10/2016 THEME II 14:30 15:00 CMR Have We Reached the End of the Road? Michael A. Antapasis Attorney at Law, LLM Issues in question Has CMR completed its journey? Is CMR a dinosaur or can CMR survive? Have we reached the end of the road? Which problems CMR needs to face in order to stay alive Possible solutions 1

2 Structure Introduction CMR problems in a nutshell 1. Facing Modern Problems 1.1. The Road Factor New Means of Transportation 1.2. The Human Factor Stowaways & Illegal Immigration 1.3. The Technological Factor Entering the New Age 2. Facing Pre existing Problems 2.1. Common Problems Uncommon Language The Bilinguality Issue 2.2. Facing Gaps in the CMR 3. Suggested Solutions 3.1. Is Change Better than Reform? 3.2. Seeking 3 rd Party Consultation 4. Conclusion Proposals CMR Problems in a nutshell Part I CMR was the result of increased needs created following WWII & technological development Problems were recognized in practice 1978 Protocol reforming the unit of calculation CMR is practically a European Convention 2

3 CMR Problems in a nutshell Part II CMR managed to create a uniformity and influenced national legislation (Role model or direct incorporation) Aspects that need harmonization to international transport: 1. How & when contract is concluded 2. Applicable law & jurisdiction 3. Amount on Carrier s liability & limitation 4. Level of indemnity to apply Unpredictability will increase costs & sifted to consumer CMR Problems in a nutshell Part III Technological evolution New means of electronic communication The Internet is part of everyday business Modern economy structures are not covered 60 years evolution could not be anticipated by CMR drafters CMR is stable & working. Why disrupt a well performing convention? Or CMR is a dinosaur who needs to adapt in order to survive? But, is best the enemy of good? 3

4 Facing Modern Problems The Road Factor When CMR was drafted the lorry was the ordinary way of road carriage. Cargo was transshipped, several carriers interfered CMR regulates successive carriage (Chap. VI) Introducing Semi trailers & Containers changed the structure of successive carriage. Freight forwarders are now more involved and build large fleets. Independent carriers are today's sub contractors Multimodal or Fleximodal transport is today s favorite way of transport The Road Factor II This has created an uncertainty Every day practice doesn t always cope with CMR s provisions CMR obligations are not always followed i.e.: Art. 5.1 Production of 3 consignment notes Art. 6.1 (c) Reference to all involved carriers details Art. 6.2 (e) Sender s insurance instructions 4

5 The Human Factor For the last 2 years transport industry is facing an unprecedented increase of stowaways related directly to the major and sensitive illegal immigration issue Previous solutions (ie avoiding sensitive areas) are not working Drivers are expected to police their vehicles by themselves! Carriers & forwarders face heavy fines & arrest of vehicle & cargo The Human Factor II Many times, drivers prefer to take the risk Stowaways may damage the cargo even indirectly. Receivers will not accept cargo even in the suggestion of such activity Food Products: All major food suppliers will reject it as unfit. Pharmaceuticals: According to EU regulation the company has to vouch for the conditions under which the goods were transported 5

6 The Human Factor III Is stowaway a force majeure or 17.2 defense? National interpretation presents uniformity Not only reasonable but outmost care prior & during the even Most times Art. 29 will also apply! But suggested measures (alarms, hard sided vehicles etc) are examined only from a legal spectrum and are not financially viable or effective. The Technological Factor Constant need to minimize time & cost Replacement of printed documents with e documents Environmental friendly by minimizing paper consumption CMR has adapted through 2008 e CMR Protocol the Electronic Consignment Note 6

7 e CMR Until today only 8 EU members have ratified The e CMR consignment note introduces a big number of advantages in relation to the traditional Full traceability on vessel & cargo But concerns as to security & authentication State administrative regulations still demand printed copy EU favorites adoption but takes no effective initiative Adopting e CMR Protocol is highly important for EU transport & logistic service to be competitive Facing Pre existing Problems CMR can be described as a Swiss cheese being full of holes Rich jurisprudence that sometimes led to new complications instead of unifying the issues needing interpretation. 7

8 Common Problems Uncommon Language Common Problems Uncommon Language Drafted directly in two languages Both texts have equal authority This created unnecessary interpretation variety Example: Art. 1 goods and marchandises Is there an element of commerciality? More emphatic when the CMR was translated by the incorporating State CMR gave license into translating not just wording but also concepts, resulting to local color 8

9 Art. 29 This bilinguality is mostly expressed when interpreting Art. 29 wilful misconduct and other equivalent default The addition of other equivalent default was made for the two texts to be in conformity of each other and not to create a second form of default The result was more ambiguity and diversity Gaps in the CMR Voluntary gaps for the national law to fill Practice gave birth to involuntary gaps Typical Gaps : 1. Duty of loading or unloading of the goods, 2. Defining of CMR key words (i.e. goods, delivery, reasonable time etc.) or key concepts (such as the title to sue or jurisdictional issues) 3. Extension of time bar (Art. 32.2) 4. breach of several carrier s duties (such as dealing with goods when the carriage or delivery cannot be carried out) 5. General Contract Law Principles (i.e. conclusion of the contract, misrepresentation etc.) 9

10 Gaps in the CMR II The decision of a national judge to identify a gap and use national law instead of CMR to fill this gap is often abused. Suggested Solutions The question to be answered is not whether the CMR is a success or failure, since real life has already established CMR s success The question is how to solve CMR problems within the CMR context 10

11 Is Change better than Reform? New Convention Every new convention needs the support of important trading States, and most definitely the express support of all States having already ratified the CMR. The support should be widely and clearly expressed. Leaving proof of the contrary The Hamburg Rules New convention has unpredictable results instead of the well based CMR Time spend in negotiations and formalities, Difficulty in implementation since national legislation may need to adjust c) politics and national interests 11

12 Amendment Seems more efficient and easier to adopt Covers CMR needs to renovate e CMR Protocol is not adopted though EU avoids to include it in the common transport policy EU avoids to touch politically sensitive issues Art. 49 International Conference reviewing CMR Face uniformity problems without corrupting the status quo Enter a modern approach on multimodal transport, compensation limits and Art. 29 etc. 12

13 3 rd Party Consultation Competence to international court to create guidelines to national case law This will not be a special agreement under Art. 1 (5) ICJ is in conformity with drafters thinking (Art. 47), but inapplicable since a private dispute has to become State matter ECJ can work but could create a two speed jurisprudence. Conclusion Proposals CMR should enter the 21 st century. Rewording of several articles through a reconstructive international conference seems the most practical and cost effective idea, as long previous consent is established and ensured. Furthermore, EU should decide a more active approach in relation to the e CMR Protocol and replace simple suggestions to EU members with the adoption of a relevant Directive or Regulation. 13

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