The vast majority of road transport is carried out from beginning to end by the same means of transport. Do not belong to the rare situations, when the car is staying with a good part of the route by another means of transport (ship, shoulders, Train). In such cases, the carrier is shaped differently than the standard transport.
Transport multimodalny
Otherwise known as a Multimodal Transport is a type of combined transport of goods, which provides, specific route that will defeat the goods through various means of transport. In relation to carriage by road, there are two basic types of combined transport - transport of roll on-roll off (in relation to the carriage on board) lub piggyback (for the carriage of a train), in which the entire vehicle and its cargo is transported by other means of transport, and such, in which occurs during the transport of goods loaded or unloaded from the car to other means of transport. When evaluating the carrier's liability for damage to road transport the most important is the first kind.
CMR Convention will be applied
If road transport is based on a single contract of carriage between two different countries, least one of which is a party to the CMR Convention, Convention will also apply to the carriage, during which the vehicle is transported by other means of transport. The condition is, by commodity throughout transport to the car remained loaded and unloaded when not subject to transport the car to other means of transport. The doctrine, however, indicate, that this condition is met in cases where the repackaging of the goods to another vehicle as well as in situations, transition occurs when unloading such. to inspect the goods or additional security for the journey. It is emphasized at the same time, that the application of the Convention has a strong impact on the original agreement between the parties, and no real way of its implementation. Thus, if the sender and the carrier agreed, that such goods will be transported. with the vehicle ferry, then the carrier arbitrarily made to the ship unloading goods, for such carriage will apply the Convention, although ultimately the goods throughout the transportation section was not loaded on the vehicle.
Limitation of liability of the carrier
In the event the above reasons the Convention is applicable in the entire stretch of carriage, so also the section, where road transport has little influence on the transport, because the vehicle itself is carried by another mode of transport. The rule is therefore, that road transport is responsible according to the restrictive provisions of the Convention for damage caused during the non-road transport segment. In his luck CMR Convention contains provisions substantially improve its position in its relations with the victims.
In accordance with Article. 2 paragraph. 1 Convention on road transport has the ability to significantly limit their liability for loss, damage or delay in delivery of goods taking place during the multimodal transport. For this purpose, however, must be fulfilled several conditions.
Too bad the episode other than road
First of all, the carrier must demonstrate, that damage or delay occurred during the carriage by the other mode of transport. There will always be this easy, because in many cases the cargo space during transport remains closed at all times, a carrier of the failure until he learns during the unloading. From this point of view, it is recommended that - if it is of course possible - control of the load immediately after leaving the car with the goods of another mode of transport. For this, in many cases, disputes arise as to whether, when it begins and ends with carriage by another mode of transport. This applies in particular damage during loading and unloading of another means of transport. In the absence of specific regulations to a large extent it depends on the position of the court seised.
No contribution to the damage
Moreover, the event causing the damage, or delay could not be caused by an act or omission on the part of road. Ostensibly, this condition does not require special comment, but in practice raises many questions. In accordance with Article. 3 Convention on road transport is responsible, as for its own acts and omissions, for the acts and omissions of its employees and all other persons, whose services he makes use for the performance of carriage, Staff when you or the person acting in execution of their duties. The doctrine, therefore, a dispute arose, whether this responsibility extends to carriers other than road, by which the carrier carries out the transport. In practice, the sea carrier is usually a subcontractor of road, if the, doing the job, was crossing the ferry will be such. from France to Britain and to this end will purchase an appropriate ticket for ferry transportation. The vast majority of authors believes, Such extension of liability that would conflict with the meaning of Article. 2 Convention, as in most cases not allow limitation of liability of road, After all, who does not have any influence on the course of carriage by sea and rail. Therefore, the is assumed, że art. 3 Convention shall not apply to liability for the actions of carriers of other modes of transport. Unfortunately this does not solve all problems, multimodal transport because of damage can be caused also by a number of other people, as dock workers, dockers etc. Lack of clear regulation, or for the activities of such persons is also a road transport is responsible, So often in this area will depend on the views specific court.
Although it does not result directly from Article. 2, It is generally accepted, that if the above condition the burden of proof is on the injured. The carrier does not have to show, that no damage has resulted from his act or omission. It is up to the person entitled to prove, that the carrier contributed to the injury.
Damage typical of a branch
Much more difficult to meet the requirement is to demonstrate by the carrier, that damage resulted from the fact, which could only have occurred during and as a result of transportation other than road. Most standard damage arises because in the circumstances, which can hardly be considered typical for the type of transport. Lack of a specific folder so usually results in such disputes. as to, if you can recognize the specific cause of the fire on board. Some courts adopt, that the fire may also occur on land, others are of the opinion, that the fire at sea is, however, much more dangerous character than on land, and the crew must focus on saving the ship, and not to protect the goods.
Scope of liability limitation
If you meet these conditions road carrier's liability to the person entitled does not arise from the provisions of the Convention but it shall be the responsibility, would be created, if the contract of carriage on the section other than the road has been made between the consignor and the carrier by road, accordance with the applicable provisions of law relating to carriage of goods by other modes of transport than road. However, if such legislation is not, the carrier will remain governed by the Convention.
Major disputes in doctrine and case law calls for the, whether the rules governing a particular mode of transport, referenced in Article. 2 Convention, must be mandatory (that is, they can not be off contract). These disputes arise from the difference between French and English text of the Convention. In the French text clearly refers to mandatory rules, in English this requirement is missing - but both texts are binding nature of texts. Most authors give primacy to the text of the English, indicating, English is a delegate that called for the introduction of this provision in the Convention and took care of his formulation, English text so it better reflects the intent of the Convention. This issue is very important, since the shipping conventions usually allow you to regulate different carrier liability by contract, and - as already indicated above - the lack of adequate provision for the mode of transport to return to the ground and increased CMR (generally) liability of the carrier.
In practice, the carrier can defend itself against the victim all the premises of limiting his liability or exempting under the rules appropriate for a given mode of transport. But it is not possible to combine these exemptions with exemptions or limitations of the CMR Convention. Apply either the provisions of the CMR Convention, or provisions relating to the mode of transport. It is worth noting, that the carrier has no choice, by which the regime of matter can be resolved, because the rules are applied automatically. Sometimes this can be detrimental to road transport, since some conventions to increase the limit of liability 17 SDR per kg of payload to 8,33 SDR prevailing on the basis of the CMR Convention.
Multimodal Transportation has to be agreed
The above benefits for the carrier can occur only if, when the carriage by any other means of transport has been agreed with the sender. The sender is no right to expect, that the carriage will be in a certain way, on the basis of specific provisions. Meanwhile, in the case of road use by any other means of transport liability could be formed at a much less favorable terms for broadcasters (np. limiting the amount of compensation to 2 SDRs per kilogram in accordance with the conventions of the sea). It is therefore assumed, that without the consent of the sender's use of other modes of transport, not only does not exclude the liability of the carrier under the CMR Convention, but actually may be considered gross negligence resulting in the abolition of all limits of liability of the carrier. This is not only the situation, the need for other modes of transport arise during transport, and it will be impossible to contact the shipper to seek instructions.
