An interesting type of road haulage operation appeared in the law reports recently in the case of Walek & Co. & Others v. Chapman & Ball (International) Ltd. & Others,1 that is, the hire by a haulier of a trailer for a sub-contract operation on behalf of the trailer owners. In this case the defendants to the action had hired their tilt trailer (so named because its canvas cover is called a tilt) to the third party—Kenilworth International Transport Ltd. (KIT)—for the carriage of a load of slow tow cement mixers from Dundee to Jeddah.

KIT’s driver picked up the load and it was delivered successfully in Jeddah. On return, the defendants, having heard of a load of yarn to be carried from Austria to Blackburn, contacted the driver about it. He duly accepted the yarn for carriage. The load arrived in Dover just before the August bank holiday weekend and so tractor and trailer were left in the dockyard in Dover for one or two days. Unfortunately there was some heavy rainfall over that period and on arrival in Blackburn the goods were found to be rain damaged.

The plaintiff goods owners sued the defendants, who accepted liability as principal contractors and they then sought recovery from KIT in these third party proceedings. They based their claim on their rights under the CMR Convention2 and in the alternative under the standard terms and conditions of the contract. There was some difficulty as to whether these standard terms were effectively incorporated into the contract, but it was held that they were and that under them KIT were liable to indemnify the defendants.

The main discussion in the judgment, however, was the question of liability under CMR and the purpose of this article is to make a few comments on that discussion.

The carriage in question was clearly subject to CMR. The defendants were the first carriers and KIT were successive carriers.3 Articles 37–40 of the Convention govern the legal relations between them. Article 40 allows carriers to agree on different provisions than those contained in arts. 37 and 38. This was the case here, but as there was a doubt about whether the standard conditions had been incorporated, the position under CMR was of great importance.