CMR: Case update

Three cases decided last year covered a range of questions concerning the Convention on the Contract for the International Carriage of Goods by Road (CMR). The first case was Tetroc Ltd. v. Cross-Con (International) Ltd. 1

The facts can be stated quite briefly. In 1973 the plaintiffs arranged with the defendants for the movement of some machines from Denmark to various destinations in the United Kingdom. The defendants were a firm of forwarders. They did not actually carry the goods but arranged this with another firm. The machines were loaded on to a trailer and the trailer shipped by ro-ro ferry to Immingham. Trailer and goods then disappeared and were later found on the quay of a Swedish port. They eventually arrived but the machines were found to be damaged, mainly by rust.

The defendants denied liability, contending that they were not carriers of the goods and that although there was an agreement between themselves and the plaintiffs, that agreement was that they should act as forwarding agents and it was solely in that capacity that they had arranged the contract of carriage with the actual carriers. They sought to deny therefore that the CMR Convention which governs the liability of carriers by road in these circumstances had any application to them. They also contended in the alternative that even if CMR did apply then they had a defence under art. 17, para. 4 of the Convention.

His Honour Judge Martin found on the evidence that the defendants had contracted, so far as the plaintiffs were concerned, as principals and not as agents and that consequently they were CMR carriers and as such liable prima facie to the plaintiffs for the damage. He considered the fact that the defendants quoted an all-in charge for the movement of the machines to the plaintiffs rather than quoting the carrier’s price and adding a commission, and the fact that they did not tell the plaintiffs of what arrangements they had made on their behalf as sufficiently indicative, as a matter of impression,2 of their contracting in the capacity of principals and not as agents.

These factors were balanced against others which were not sufficiently weighty to tip the scales in favour of agency such as the use of the words “Kindly arrange onward transit to” in the plaintiffs’ letters to the defendants; or the fact that the defendants