However, it should be remembered that the scope of application of the convention may differ from case to case. It results directly from civil law contracts created for the needs of specific transports. Basically we are talking about transport orders. Most of these agreements contain clauses that unregulated issues are resolved based on the provisions of the Transport Law and the CMR Convention. And although Article 41 CMR speaks of the invalidity of clauses contrary to the convention, it can be pure fiction. The judge decides whether to apply the CMR convention in a given case in practice. At least, that’s how it works in the Polish judiciary. This in itself contradicts the CMR supremacy.
Anyway, it’s worth looking at what CMR says about dangerous goods.
The first paragraph of Article 6 mentions the information that should be included in the consignment note. Point f says that the transport document should contain “description in common use of the nature of the goods and the method of packing, and, in the case of dangerous goods, their generally recognized description “.
The ADR agreement regulates the issue of information to be included in the consignment note in detail (section 5.4). Knowing these regulations, it’s hard to “take seriously” the mention of dangerous goods in CMR. Why is this happening?? I don’t know. The convention requirements in this regard seem to be far-reaching simplification that cannot really be applied in real life cases.
How do I explain this situation? The CMR Convention was signed in 1956, while the ADR agreement was signed in 1957. Probably, during the creation of the CMR convention, an ADR agreement was already created, or at least it was planned to be created. This could mean that CMR only intentionally refers to dangerous goods in the context of the transport document. Perhaps the creators of CMR assumed that the existence of dangerous goods cannot be overlooked. Some way out in this situation could be such insignificant placing them in this context.
The CMR Convention refers directly to dangerous goods in Article 22:
1. When the sender hands goods of a dangerous nature to the carrier, he shall inform the carrier of the exact nature of the danger and indicate if necessary, precautions to be taken. If this information has not been entered in the consignment note, the burden of proving, by some other means, that the carrier knew the exact nature of the danger constituted by the carriage of the said goods shall rest upon the sender or the consignee.
2. Goods of a dangerous nature which, in the circumstance referred to in paragraph 1 of this article, the carrier did not know were dangerous, may, at any time or place, be unloaded, destroyed or rendered harmless by the carrier without compensation; further, the sender shall be liable for all expenses, loss or damage arising out of their handing over for carriage or of their carriage.
Paragraph 1 of this article is more similar to what we can find in the ADR. What is clear from this provision is the responsibility of the sender or recipient. It is the sender who is obliged to provide the carrier with all information regarding dangerous goods. The burden of proof ‘that the carrier knew of the danger of the transport of goods’, rests on the sender or recipient.
CMR Convention on the burden of proof
Why do I dedicate a separate subheading to the topic? Because in my experience I noticed that the principals, who are often only intermediaries in transport, are trying to shift the burden of proof on the carrier. This of course applies not only to ADR but also to many other issues.
However, orders often do not include a record as to who should proof anything. In such a situation, the customer cannot simply say to the carrier: “You are guilty – prove that you’re not!”. CMR helps here a lot and it’s worth knowing that the convention regulates the issue. Transport orders almost always contain a safety valve. It can be a provision that all matters not regulated in it are regulated by the CMR Convention. So usually the transport order itself suggests referring to the convention. Will it allow me to win the case in court? Hard to say. There is never a definite answer to this. Either way, the carrier gains another advantage.
(Interestingly, Article 41, paragraph 2, says that “in particular (…) any clause shifting the burden of proof shall be null and void”. It follows that the existence of such a record in the transport order would simply be invalid. However, practice shows that the Polish courts settle such cases in isolation from the CMR Convention.)
Neutralization of the goods at the sender’s expense
Paragraph 2 of article 22 (cited above) allows the carrier to take radical steps. Especially, when it turns out that the goods entrusted to him are dangerous. In addition, he bears no responsibility for this. Finally, the sender may be charged with the costs of such a disposal.
To tell you the truth, I haven’t heard of the situation in which the article was used. It is obvious that in most situations it is in the interest of the carrier to settle the matter amicably. However, I can imagine a situation in which the right to dispose of the goods could be used.
ADR goods may be transported with other goods as a partial load. The rest of the load is therefore owned by other entities whose interests must be protected. In the situation in which e.g. leakage of dangerous goods (described by their sender as neutral goods) leads to damage to the rest of goods, neutralization of the shipment would be justified.
What to consider
Even if this seems drastic, the following factors should be noted:
- An untrained driver won’t have knowledge of how to behave in such a situation. This can endanger the lives of him and other road users.
- A trained driver will also not know how to behave in this situation. He does not need to know what he is dealing with and what measures to take. Normally, decisions are made on the basis of relevant documents.
- Shippers of other goods will not be interested in the fact that their goods have been damaged. It doesn’t matter if the other shipper made a mistake. This should not be their problem.
In this situation, the neutralization of the goods at the sender’s expense seems to be a drastic step. However, for the carrier and other shippers may be the cheapest and safest solution.
I imagine that an additional argument in this situation would be the need to protect health and life. But how would it be decided whether such actions were really necessary? I do not know. If I ever find a court judgment that relates to such or a similar situation, I’ll definitely write about it.
The CMR Convention does not regulate dangerous goods transports
The few entries, that I have quoted above, are all we can find in the CMR convention about dangerous goods. This is probably because of the reason I mentioned earlier. Just one year after the CMR Convention, the ADR agreement came into exist. However, it is worth paying attention to the nature of these few entries. At first glance you can see that hey are stand firm on the side of the carrier.
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