The Time Limits Laid Down in the CMR Convention May Become Critical in a Dispute and May Determine the Course of Litigation

The Convention on the Contract for the International Carriage of Goods by Road (CMR Convention), inter alia, establishes two types of time limits that are relevant to the legal relations covered by the CMR Convention: the time limit for making claims and the limitation period for bringing proceedings. Both of these time limits may become critical in the event of a dispute between the parties.

First of all, the CMR Convention establishes a time limit within which claims for damage to the goods must be brought against the carrier. The CMR Convention distinguishes between obvious and non-obvious defects in the goods for which the consignee may claim against the carrier.

In the case of obvious loss or damage, claims must be made at the latest at the time of acceptance of the goods. Article 30(1) of the CMR Convention states that if the consignee accepts the goods without having assessed the condition of the goods with the carrier and without having made a claim against the carrier in respect of any loss of or damage to part of the goods, the consignee shall be presumed, until the contrary is proved, to have accepted the goods in the condition as stated in the consignment note. Thus, if claims for damage or loss of a part of the goods are apparent, they must be made at the time of acceptance of the goods.  In the case of loss or damage which is not apparent, the written claim must be made not later than 7 working days after acceptance of the goods (excluding Sundays and public holidays).

There is no mandatory written form for the recipient’s complaint about obvious defects, therefore such a complaint may be made to the carrier in writing, orally or in any other form. Thus, obvious defects, which include damage and/or loss of part of the goods, may also be recorded in the consignment note. This method of claiming in respect of obvious defects is sufficiently reliable in the event of a dispute, as it is clear that the goods have been inspected and the defects identified at the time of delivery. This means, inter alia, that the consignee has not missed the time limits laid down in Article 30 of the CMR Convention for making claims. As already indicated, the omission of the time limits – the failure to claim in time and the failure to make entries in the consignment note – would mean that, even if the defects in the goods were obvious or part of the goods were lost, the goods would be deemed to have been delivered in the form in which they were accepted for carriage.

There may also be instances where claims are not made for all apparent defects in the goods delivered, or where claims are made only for the damage of the goods, even though there is also a loss of part of the goods, or vice versa. In such a case, e.g. if the entry in the consignment note is made solely in respect of the damage to the goods and not in respect of the damage and loss of part of the goods, the goods will be deemed to have been delivered in full.

Thus, improper claiming, which may be manifested not only by missed claim deadlines, but also by incomplete claim wording, may have a negative impact on the proof of the consignee’s losses in court. The legal consequences of such a situation may include, inter alia, incomplete reimbursement to the party bringing the action.

The second type of time limits, also of critical importance in cases of disputes governed by the provisions of the CMR Convention, are limitation periods. And while a missed limitation period does not eliminate the right of the affected party to bring an action before a court, it does give the other party another defence, namely, to seek the dismissal of the action on the grounds that the limitation period has expired.

Article 32(1) of the CMR Convention lays down the general rule that, in disputes to which the provisions of the CMR Convention apply, an action must be brought before a court within one year. In the case of an action for acts which are intentional or are recognised as such, the limitation period for bringing such an action is three years. However, the three-year limitation period should not be relied on too much. This is because the question of whether certain acts are intentional/confessed to be intentional is a matter for the court hearing the dispute to decide on a case-by-case basis. Therefore, even if it appears to one party that the actions of the other party will be found to be intentional before an action is brought, there is unfortunately no such guarantee.

It is important for both the party bringing an action and to the party defending from it to be aware that the starting points for the limitation period depend on the nature of the claim. Claims for damage to, loss of, or delay in delivery of part of the cargo start to run from the date of delivery of the cargo. The limitation period for claims for total loss of the goods shall begin to run 30 days after the agreed delivery date. If no delivery date has been agreed, it shall be 60 days after the date on which the goods were accepted for carriage.

It is also important to note that Article 32(2) of the CMR Convention establishes the rule that the limitation period shall be suspended from the moment a written claim is submitted to the carrier until the carrier rejects the claim or part of the claim in writing and returns the documents attached to the claim. If the carrier accepts the claim in part, the limitation period shall run only for the part of the claim not accepted. However, the burden of proving receipt of the claim or the reply thereto, including the return of the documents, shall be on the party who relies on this fact. It is also important to know that only the first claim stops the limitation period from running – other claims made on the same basis, i.e. repeated claims, do not stop the limitation period.

Therefore, an appropriate response that does not miss the time limits set out in the CMR Convention can determine not only the complexity and thus the cost of the litigation, but also the outcome of the litigation itself, i.e. the (incomplete) recovery of the damages or, more generally, the (non-)recovery of the damages. For this reason, the provision of adequate legal representation is important from the moment one of the parties becomes aware of the damage and/or loss of the cargo.

Legal commentary by Emilija Žitkauskaitė, Associate, Assistant Attorney at Law