Case No. DMC/ST/06/01
Important Notice
This judgment has recently, March 2002, been overturned by the Court of Appeal, which held that the Convention on the Carriage of Goods by Road (CMR) applied to the Paris/Dublin leg of the journey in question. The court ruled - in effect - that CMR would apply to any sector of an intermodal transit, to which it would have applied had that sector been the only leg of the journey.
Editor, 13 April 2002
Quantum Corporation Ltd v. Plane Trucking Ltd and Air France: Unreported: April 2001: English High Court Commercial Division: Tomlinson J.
CARRIAGE BY AIR: CARRIAGE BY ROAD: APPLICABILITY OF CMR CONVENTION IN MULTI-MODAL TRANSPORT: INTERPRETATION OF AIR FRANCE CONDITIONS OF CARRIAGE
Where there was a single contract of international carriage in which two modes of transport were intended, the first by air, the second by road, the contract could not be described as a ‘contract for the carriage of goods by road in vehicles for reward’, to which the convention on the international carriage of goods by road, the CMR Convention, would apply.
DMC Rating Category : Developed
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The Facts
In September 1998 Air France issued to the claimants, Quantum Corporation, an air waybill in Singapore, providing for the carriage of hard disk drives - to the claimed value of US$1.5 million - from Singapore to Dublin. The intended routeing was by air from Singapore to Paris and then from Paris to Dublin by road and sea over the Irish Sea.
For the trucking leg, the carriage was performed by regular contractors of Air France, Plane Trucking. Whilst the cargo was in the UK, in the custody of Plane Trucking, it was stolen by their employees. Plane Trucking admitted liability for the theft but was in liquidation at the time of the proceedings. Plane Trucking’s liability insurers had purported to avoid the policy. Air France also accepted liability.
The Arguments
Whilst Air France accepted liability, it claimed entitlement to limit its liability to the amount of SDRs 17 per kilo, in accordance with its General Conditions of Carriage by Air for Cargo. Air France maintained that its General Conditions were incorporated into the contract of carriage by means of terms in the air waybill. These provided that carriage was to be in accordance with the Warsaw Convention but ‘to the extent not in conflict with the foregoing’, carriage and other services were to be performed in accordance with ‘applicable….. conditions of carriage’. Under Article 11.7 of the Air France conditions, its liability was limited to the amount of SDRs 17 per kilo.
Claimants maintained that Air France’s Conditions were expressly subject to any applicable convention and the convention applicable in this case was the CMR Convention. Article 1 of that Convention provided that the Convention applied to
‘every contract for the carriage of goods by road in vehicles for reward, when the place of taking over of the goods and the place designated for delivery, as specified in the contract, are situated in two different countries, of which at least one is a Contracting country.’
For the purposes of Article 6(1)(d)) of the Convention
(‘The consignment note shall contain the following particulars….. the place and date of taking over delivery….’), the claimants submitted that the goods were taken over in Paris. France is a contracting country to the CMR Convention. Under Article 29 of the CMR Convention, Air France’s liability would be without limit, since it would be responsible for the ‘wilful misconduct’ of the employees of Plane Trucking.The Judgment
The Judge addressed the issue of Air France’s liability on the basis that the contract of carriage was
‘a single contract for carriage from Singapore to Dublin, that carriage by road from Paris to Dublin was the intended mode of performance when the contract of carriage was made…… but that Air France was not contractually obliged to carry the goods in that manner and might if [it] had so wished have carried the goods on that leg by air.’
The Judge found that the case raised two questions: Is the contract to which Air France is a party a contract for the carriage of goods by road? Does the contract specify a relevant place of taking over of the goods? In answer to these questions, he held that the contract could not ‘properly be described as a contract for the carriage of goods by road’. The Judge emphasised that a feature of the CMR Convention was that it attached to contracts rather than to carriage. The converse was true of the Warsaw Convention, which applies to ‘all international carriage of persons, baggage or cargo performed by aircraft for reward…..’
The contract in this case:
‘…is a contract predominantly for carriage by air. This conclusion is underpinned by the circumstance that the place of taking over of the goods specified in this contract can only be Singapore. The place of taking over of the goods specified in the contract must be the place at which the contractual carrier assumes liability for the goods …….. Air France did not take over the goods in Paris. They could not take over goods for which they had already assumed liability in Singapore. It seems to me that either the whole of the carriage envisaged by the contract must be governed by CMR or none of it. That seems to me the logic which informs Article 2 of CMR [not relevant to the facts of this case]. Moreover Article 2 is the only point at which the CMR Convention makes any provision for multi-modal transport. It does so in a manner which presupposes that the relevant carriage started out as road carriage….. The CMR Convention, as presently drafted, simply does not fit the present situation…. I cannot accept [the] broad submission that CMR applies to multi-modal transport when one of the sectors is international carriage by road. This as it seems to me ignores that CMR attaches to the contract so that it is the nature of the contract which must be examined, not the nature of the carriage which happens at the time of the loss to be being undertaken.’
The Decision
Accordingly the judge did not need to consider any issues arising under Article 29 of the CMR Convention and found that, subject to an additional point which was not before the court, Air France was entitled to limit its liability for the loss to 17 SDRs per kilo, in accordance with Article 11.7 of its General Conditions of Carriage.
Decisions considered but not followed:
Atlas Assurance v. Ocean Transport and Trading Ltd, Antwerp Rechtbank [1976] 11 ETL 279;
Atlas Assurance v. P&O, "The Osaka Bay", Antwerp Rechtbank [1977] 12 ETL 843;
"The Resolution Bay", Rotterdam District Court, 28 October 1999;
Decision of Oberlandesgericht, Duesseldorf, [1970] 5 ETL 446.