Subsequent changes in the CMR Convention

As gives website of the United Nations, on 5 June 2011 r. entered into force the Additional Protocol to the Convention on the Contract of International Carriage of Goods by Road (CMR) drawn on 20 February 2008 r. on electronic bill of lading (English text available here). The new regulation may soon significantly affect the rules for the international road haulage.

Scope

To date the Protocol entered into force only in several European countries (Bulgaria, Finland, Lithuania, Latvia and Switzerland), in the near future will also apply in the Czech Republic and Spain (List of countries, in which the protocol applies is available here). Poland so far has not ratified the Protocol. This does not mean, Polish participants in the transport processes do not come into contact with new rules. The Additional Protocol is part of the substantive law in force in the country. In the case of the interaction between players from different countries, about which law will apply, determined by the provisions of private international law. In the European Union, this matter is governed by European Parliament and Council (WE) no 593/2008 of 17 June 2008 r. on the law applicable to contractual obligations (Rome I). According to art. 5 paragraph. 1 Regulation, if the parties do not have a choice of law, law applicable to the contract of carriage of goods is the law of, in which the carrier has his habitual residence, provided, that in the same country is the place of taking over of the goods or the place of delivery, or habitual residence of the sender. If these conditions are not met, the law of the State, in which the parties agreed place of delivery. In accordance with paragraph. 3 there may also be the situation, when the law will apply other than those mentioned above, if all the circumstances of the case show, that it is more closely connected with the contract.

The regulation makes it clear that described, Polish carriers that often contain a state-law contract, which ratified the additional protocol 2008 r. For example, concluded by the Austrian company with a Polish carrier contract for the carriage of goods from Italy to Spain (which is not uncommon in the globalized market of road haulage) will be subject to Spanish law covering the Additional Protocol. A similar situation can be also involving entities professionally engaged in the carriage - if you are a Polish company will commission the Lithuanian carrier transporting a particular shipment of Lithuania to the Polish, Lithuanian law will apply, part of which will also include the said Additional Protocol. In many cases, so the Polish entrepreneur will not even be aware of, that the relationship connecting him with the contractor will be based not only upon the current contents of the CMR Convention Poland, but also to the Additional Protocol, which modifies the content of this. Hence the need is evident, that despite the absence of ratification of the Protocol by Poland entities operating on the international road haulage or using the services of such entities are familiar with new rules.

New technologies in road transport

It has been known, that the law generally does not keep pace with new technologies. Similarly, in the case of the CMR Convention regulating international road transport of goods - despite the rapid development of electronic communication technologies in the CMR Convention for several years the only way to communicate was in writing. Additional protocol 2008 r. change this rule. It allows for both the electronic issuance of bills of lading and the parties to communicate using electronic communication.

Because the terms used may be widely interpreted differently, and moreover, may have different legal meaning given to it in various countries which are parties to the Convention, w art. 1 The Protocol contains a definition of electronic communication, electronic bill of lading and electronic signature. Without going into technical details, can be reduced to finding, that these definitions are based on the solutions adopted m.in. in Directive of the European Parliament and Council 1999/93 (WE) of 13 December 1999 r. on a Community framework for electronic signatures.

A key principle of the protocol is the introduction of electronic communication and electronic bills of lading as an alternative implementation of the contract for the international carriage of goods by road. Issuance of an electronic bill of lading will have the same effect as the issue it as a traditional. Similarly, the report claims, Declaration, instructions, Objections, complaints or other communications provided for in the Convention will also be permitted in electronic form. This does not mean, of course, that traditional forms will be allowed - is still possible to use them, and the same Protocol provides for even the possibility of replacing the already issued an electronic bill of lading by registered traditional.

The Protocol does not establish technical specifications defining the, should look like an electronic bill of lading or electronic signature. However, provides in Article. 3, that the signature should be trusted, and reliability of the signature requires compliance with certain conditions such as the uniqueness, ability to identify the signer, Full control of the signatory of the tools to produce the signature or the signature of the data connection in such a way, that any subsequent change can be detected. But it is also permissible to use other methods of electronic bill of lading uwiarygodniania, which are allowed by the law of the country, in which the letter was issued.

The electronic bill of lading shall contain the same data as the traditional. Procedure for the issue should ensure the integrity of the data contained therein, and any amendment or supplement of the letter should be possible to detect. For obvious reasons, because it will be permissible to influence - in the cases provided for in the Convention - the contents of the letter by entering objections, command changes the transport etc.

Parties to the contract of carriage, however, need not fear, that they will be surprised by the contractor, which will issue an electronic bill, to which the entity will not be prepared. In accordance with Article. 5 Protocol parties interested in using the electronic bill of lading should agree in advance the appropriate procedures, including in particular m.in. method of issuing a bill of lading and the delivery of the other side, measures to ensure the integrity of the consignment note, to test the rights under the bill of lading, rules changes and additions to the bill of lading, procedure to replace the traditional electronic bill of lading bill of lading, etc.. Perhaps this will initially limit the application of new regulations. With time, however, probably develops some standards procedures related to the use of an electronic bill of lading.

It should also be borne in mind, that the Memorandum of the prior agreement as to the application of relevant procedures, shall not extend to the use of electronic communications. It may therefore happen, that the Polish entrepreneur receives from the counterparty, eg. complaint in electronic form without agreeing this mode of communication. This kind of activity - as long as the relationship of the Protocol will be applicable - will be considered effective, even if the Convention provides for them in writing.

For this reason, we follow, Countries that accede to the Protocol, to avoid future confusion as to the effectiveness of specific activities undertaken through electronic communication.