What to look out for when transporting goods across borders by road?
Are you a trader trading internationally or a carrier transporting goods across borders by road? Then this article is for you. Find out what to avoid in this transport, what to look out for and who to contact if you have any problems or questions.
In its judgment of 12 September 2023, Case No. 24 Cdo 2221/2023, the Supreme Court addressed, among other things, the applicability of the CMR Convention when part of the international carriage of a consignment is carried out by means other than road transport (e.g. by ship or plane). This decision has a significant impact on international trade and the carriage of goods.
In this particular decision, the brief facts were that in one case the goods were transported by road from Kolín to Mošnov, in the other case from Kolín to Hradec Kralove, then by air from Mošnov and Hradec Kralove to Stockholm and finally from Stockholm to Södertälje. Thus, the road transport took place only within the Czech Republic and Sweden and the cross-border transport was by air, not by road freight. In the present case, therefore, the road freight transport lacked an international dimension in the sense set out below.
The Convention Marchandises Routier, abbreviated CMR, also known in the Czech Republic as the Convention concerning the International Carriage of Goods by Road, is an agreement on the contract of carriage in international road transport. It is therefore mainly encountered by carriers transporting shipments abroad. This Convention applies to any contract for the carriage of consignments for reward by road vehicle where the place of receipt of the consignment and the intended place of delivery, as specified in the contract, are situated in two different States, at least one of which is a Contracting State to this Convention, irrespective of the domicile and nationality of the parties. This Convention shall not apply to carriage between the United Kingdom of Great Britain and Northern Ireland and the Republic of Ireland.
The Supreme Court has recently reiterated the importance of Article 1(1) of the CMR Convention, which sets out when this international agreement applies to the carriage of consignments. According to this provision, the Convention applies to any contract for the carriage of consignments for reward by road vehicle where the place of receipt of the consignment and the place of its intended delivery are situated in two different States, at least one of which is a Contracting State to the Convention. In other words, the Convention applies if the place of departure and the place of arrival are each in a different State and at least one of them is a State Party to the CMR Convention.
If we apply this provision to the above case, we see that the requirement that the place from which the consignment travels and the place where it is to arrive are each in a different State is not met. Since the road transport was only from Cologne to Mosnov and then from Stockholm to Södertälje and the air transport, which was across the border, is not covered by the Convention.
In its decision, the Court also referred to the judgment of the Karlsruhe Higher Regional Court, in which the Court stated that the mere fact that the border of two States is crossed in the context of a whole transport operation involving several means of transport, but not in the road transport section, is not sufficient for the applicability of the CMR Convention. In other words, the mere crossing of a border in the course of transport is not sufficient if the transport across the border does not take place by road. Again, if we apply this to the above case, it is evident that although there was a cross border transport of the consignment, the CMR Convention was not applicable as the goods crossed the border by air and not by road.
The Court further stated that its order of 27 March 2019, Case No. 32 Cdo 2812/2018 and the conclusions of the literature generally show that if a shipment is to be transported, e.g. from a Dutch city to a French city and is transferred during the journey from a road vehicle to a ship in the State of dispatch and then from a ship to a road vehicle in the State of delivery, this transfer of the consignment excludes the applicability of the CMR Convention not only for the transport of the consignment to a French port, but also from that port by road to a French city, since it is not a carriage by road vehicle (the consignment is carried by ship) and not an international carriage by road (the consignment is loaded on a road vehicle in a French port and is therefore a carriage on French territory).
Goods should cross the border by road freight, not by ship or plane etc.
The Supreme Court's decision has made it clear that only the occurrence of road transport between two different states justifies the application of the CMR Convention. It should therefore be borne in mind that in the case of multimodal transport, it is crucial to consider carefully the means by which the goods will be transported and whether the cross-border element criterion will be met in the case of road transport. As carriers or traders, you should pay attention to the details of the contracts, particularly the mode of transport, to avoid potential legal disputes and costs associated with misinterpretation of the legal framework for international shipment.
How will the transport be assessed if the goods vehicle is transported by ferry during the journey? According to Article 2(1) of the CMR Convention, if the loaded vehicle is carried on any part of the journey by sea, rail, inland waterway or air, the Convention applies to the whole carriage unless the consignment has been transhipped. Thus, the carriage of a vehicle by ferry does not exclude the application of the CMR Convention.
Responsible Attorney: JUDr. Jakub Dohnal, Ph.D., LL.M., Dominika Zápotocká contributed to the article.
