Важнейшей целью конвенции является установление единообразных правил ответственности перевозчика.
The most important aim of the convention is to establish a uniform regulation for the carrier's responsibility.
1.2. GEOGRAPHICAL SCOPE
As of 2009, 56 countries have become parties to the Convention. These; Albania, Armenia, Austria, Azerbaijan, Belarus, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iran, Ireland, Italy, Jordan, Kazakhstan, Kyrgyzstan, Latvia, Lithuania, Lebanon, Luxembourg, Malta, Mongolia, Montenegro, Morocco, Netherlands, Norway, Poland, Portugal, Moldova, Romania, Russian Federation, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Syria, Arabia, Tajikistan , Macedonia, Tunisia, Turkey, Turkmenistan, Ukraine, England, Uzbekistan.
1.3. TURKEY'S PARTICIPATION IN THE CONVENTION
Turkey's participation in the "Contract of Contract for the International Carriage of Goods by Road (CMR)" was approved by the Law dated 07.12.1993 and numbered 3939; Turkey, together with the CMR Convention, attached to the Protocol dated 05.07.1978, which is the annex of this Convention. It has become a party by making reservations to Article 47. (The decision of the Council of Ministers dated 0.212.1994, numbered 94/6322; entered into force by being published in the Official Gazette with the number 22161 on 04.01.1995).
The countries to which the CMR Convention applies constitute a single legal territory, interconnected by a single legal system. Consequently, the Convention can be regarded as a separate system alongside national legal systems.
The Convention is valid for every contract of carriage for the carriage of goods by road for a fee, provided that the place of receipt and place of delivery are located in two different countries, at least one of which is a contracting party.
This means that all kinds of international road goods transports that start or end in a contracting country and are carried out on behalf of another (self-account transports are not covered by the CMR) will be subject to CMR rules, with some exceptions. These exceptions are:
1. postal shipments;
2. funeral shipments;
3. "Furniture" moves (usually considered house moves);
4. transportation of private goods;
In Article 1 of the Convention, the validity (implementation) of the Convention is dependent on certain conditions of different kinds. In this context, elements such as the concept of transport contract, freight forwarding, the necessity of the place where the goods will be received and the place where they will be delivered are located in two different countries, the concept of vehicle, the concept of goods are discussed separately.
No compensation will be paid if the damage or loss is caused by faulty delivery, neglect of protection, incomplete documentation, defective packaging, incorrect temperature, or failure to collect cash on delivery.
IMPORTANT CMR RULES
DOCUMENT REQUIREMENTS: CMR TRANSPORT DOCUMENT
The CMR Convention states that the contract must be confirmed by issuing a transport document. However, the absence or loss of such an instruction does not prevent the provisions of the Convention from being applicable. Certain information needs to be shown on the note.
There is no specific format for the CMR Transport Document, but usually a linked note from various sources is used. CMR does not specify clearly who will issue the note; in practice it is usually arranged by the land carrier.
However, most of the information is related to the exporter and the exporter is responsible for the accuracy of this information. This will also prevent the very common but unwelcome practice of issuing a note long after the goods have started to be transported, and sometimes by a person who is not the first carrier of the CMR. Where the information is not entered by the shipper, the shipper does so on behalf of the shipper as its agent, who will be responsible for the accuracy of the information displayed.
Since it is sufficient for only one of the countries whose territory is passed during carriage to be a party to the Convention, the validity of this Convention must be notified to the other non-party country on the transport document.
A. The referral letter shall contain the following information:
a) The date and place of issue of the referral letter,
b) Name and address of the sender,
c) Name and address of the carrier,
d) Loading place, date and place determined for delivery,
e) Name and address of the person to whom the cargo is sent,
f) The description of the characteristics of the cargo, the form of packaging and, in the case of dangerous goods, their description in a way that can be understood by everyone,
ğ) How many coins there are and their special brands and numbers,
h) The gross weight of the cargo or, if otherwise expressed, its amount,
ı) Transportation fees (Transportation cost, additional expenses, customs duties and from the contract to the delivery
other payments made)
j) Necessary instructions for customs and other formalities,
k) Regardless of any provision to the contrary, the carriage shall be subject to the provisions of this Agreement.
B. When necessary
a referral letter shall also contain the following information:
a) Note stating that the transfer is not allowed,
b) Payments that the sender agrees to pay,
c) The amount of the dues to be made at the delivery of the cargo,
d) The amount representing the special interest in the declaration and delivery of the freight value,
e) The directive to be given by the sender to the consignee regarding the insurance of the cargo,
f) The agreed period of time for the completion of the carriage,
ğ) List of documents given to the carrier.
C. The parties may also write down other issues they deem beneficial in the referral letter.
NUMBER OF COPIES
The CMR Convention states that the transport document should be issued in 3 original copies. The first is for the exporter, the second is to be shipped with the goods, and the third is to stay with the carrier.
arranged to. The CMR transport document is not a remuneration document, but is of great importance as evidence. For this reason, it would be appropriate to store it for at least one year.
Until the second copy of the transport document is delivered to the consignee, the sender has the right to make changes such as waiving the transport, changing the consignee's name and address.
However, after the 2nd copy is delivered to the buyer, the carrier must comply with the buyer's instructions. If the 2nd copy of the transport document is delivered to the buyer, the buyer does not have the right to dispose of the goods without the 1st copy.
The CMR Transport document is signed by the shipper and the carrier. According to the laws of the country where the Transport Bill is issued, signatures can be printed/stamped.
DISCLAIMERS OF THE SHIPPERMAN (DOUBT)
When the shipper takes over the goods, he must check the following:
1. The accuracy of the declarations in the CMR transport document with reference to the number of parcels in the shipment and their signs and figures,
2. Clear view of goods and packaging.
Where the carrier does not have reasonable grounds to check, he may protect himself by stating his reservations in the transport document. It must also indicate anything that is clearly doubtful about the goods. However, if the shipper does not express such reservations, it will be assumed that the number of parcels has been correctly declared and the goods appear suitable until the contrary is clearly proven.
RESPONSIBILITIES OF THE EXPORTER/IMPORTER (SENDOR-RECIPIENT)
The exporter is responsible for:
a. Accuracy of details in the CMR transport document:
Exporter, declared details are not correct
is liable to indemnify the carrier. Therefore, the exporter always carries the transport document in his own
should supervise the regulations or while they are being edited.
b. Defective packaging of goods:
The exporter is responsible for the fault when the shipper takes over the goods.
all related to defective packaging, except that he/she is aware of and has not expressed any reservations.
legally responsible for the results.
c. Preparation of all documents required by customs.
D. Making claims for receivables within specified periods:
If the damage is obvious, warning (preferably by the importer); If the damage is not obvious, a written notice must be given within 7 days of delivery, excluding Sundays and public holidays. If timely warning is not given, the responsibility of proving that the damage to the goods was caused by the carrier will pass to the exporter/importer. In case of delay, notice must be given within 21 days. All claims for receivables that are not prosecuted within 1 year (3 years if alleged improper behavior is alleged) are strictly time-barred.
to. Dangerous goods:
The exporter is required to give precise information to the transporter about the nature of the hazards and the measures to be taken regarding the transport of the goods. This information should be shown in the CMR note. This note must also include a generally accepted description of the goods. If the exporter does not inform the transporter of the dangerous nature of the goods, the transporter may unload, destroy or render these goods harmless without any responsibility, and in this case, he will be liable for any loss, damage or expense incurred by the transport of the goods.
OBLIGATIONS OF THE SHIPPERER UNDER CMR
The carrier is responsible for the loss, damage or delay of the goods between the date of taking over the goods and the date of delivery. He is also generally responsible for the actions of his servants, agents and subcontractors.
Those who claim a claim from the carrier due to a damage, loss or delay related to the goods are obliged to prove that this loss, loss or delay occurred during transportation. From a legal point of view, the carrier is presumed responsible for the incident unless it can prove that it was impossible to prevent such consequences.
However, there are some exceptional risks that, if proven, provide a defense against a claim against the carrier. These :
1. tort or negligence of the claimant (plaintiff);
2. the carrier's own hainstructions given by the claimant without consequence of his unlawful act or omission;
3. the defect arising from the nature of the goods;
4. Circumstances which the carrier cannot avoid and those which it cannot prevent.
A collision that is by no means the fault of the shipper may be covered under the exemption, but bad weather or theft situations are considered risks that can be taken care of, even if the cost is very high. If the vehicle is defective, it is not exempted in any way. There are other possibilities of defense that apply only in special circumstances.
If the carrier admits that the loss or damage has occurred due to one of the following situations, it will be deemed to have been so unless the exporter or importer proves otherwise:
1. The use of open, uncovered means (if their use is expressly agreed and indicated in the transport document);
2. the packaging is absent or defective;
3. the handling, loading, stacking or unloading of goods by the exporter, importer or their agents;
4. the nature of certain goods is prone to breakage, rust, shedding, normal shrinkage or damage by moths or vermin (however, these defense vehicles cannot be used if they are specially equipped for temperature-controlled activities);
5. insufficient or incomplete signs and numbers on the parcels;
6. transports of live animals (provided that the carrier can demonstrate that it has taken all normal precautions and complied with all special instructions given to it).
The carrier will be responsible for the delay in the following cases:
1. the goods are not delivered within the agreed time,
if there is no agreed time, if the time used exceeds the allowable time (for groupage transports, a time will be allowed to arrange a full load).
COMPENSATION PAYABLE UNDER CMR
Compensation is calculated in connection with the price at the date and place of acceptance of the goods for carriage; The price is based on either the price of the item or the market price. In the absence of such a price, the normal price for similar goods is taken as the basis.
Under the CMR Convention, the carrier's liability limit is gross kg. 8.33 SDR (Special Drawing Rights- With the protocol signed on 5 July 1978, 25 Germinal francs accepted in the first contract were converted to 8.33 SDR and this unit was accepted by most of the Western European countries). As of 12/16/2008: 1 SDR = 1.53478$
= 2.4044 TL 8.33 SDR = 19.99 TL (20 TL)
In addition to compensation for loss or damage, transport charges, customs duties and other charges incurred in the context of transit transport are reimbursed in full in cases of complete loss and at a certain rate in cases of partial loss.
In case the exporter or importer proves that he has suffered loss due to delay, an amount not exceeding the transportation fees may be covered.
If the exporter declares a price, it may be possible to receive higher compensation under the Convention, but the shipper has the right to demand a higher freight charge. This notice must be shown on the transport document.
It is also possible to declare a special interest on delivery (to compensate for losses incurred if the goods are not found at the destination as agreed), but again, the carrier has the right to charge a higher fee.
Failure to deliver the cargo within 30 days following the expiry of the agreed time limit or, if there is no agreed time limit, within 60 days after the carrier has received the cargo, will constitute definitive proof of their loss, and the beneficiary may then assume that the cargo has been lost and may claim compensation.
Although the aforementioned limits apply to both contractual claims and tort claims, the carrier loses the right to benefit from CMR defenses and liability limits if the loss is due to willful misconduct.
For example; In a lawsuit filed on this issue, an accident caused by a driver who excessively exceeded the limits set by EU driving times rules was considered as intentional misconduct.
CLAIM AND CASE
If the buyer receives the goods without checking their condition together with the carrier, or at the time of delivery in cases where loss and damage are clearly visible, or within seven days of delivery (excluding Sundays and public holidays) in cases where it is not clearly visible, this situation indicates that his cargo has been received as specified in the consignment letter. creates evidence. In case of loss or damage that is not clearly visible, notification will be made in writing.
After the goods have been checked by the buyer and the carrier, evidence that does not comply with the result of this check can only be accepted for loss and damage that are not clearly visible. However, for this, the buyer's condition must be in writing within seven days (except Sunday and public holiday) after the inspection.
must be notified to the carrier.
If the carrier is not notified in writing within 21 days after the cargo is placed at the disposal of the buyer, no compensation is paid for delays in delivery.
When calculating the time limits in this article, the delivery date, control date, or the date the cargo is delivered to the buyer, depending on the situation, will not be counted.
The carrier and the buyer will make every reasonable convenience to each other in order to carry out the necessary inspections and controls. In cases arising from the carriage carried out in accordance with this Agreement, lawsuits may be filed in the courts of the Contracting Party determined by agreement between the plaintiff parties. In addition, lawsuits can be filed in the courts of the following countries.
a) In places where the defendant is habitually resident or where the main workplace or branch or agency is concluded,
b) No lawsuit can be filed in the places where the carrier takes the cargo or shown as the place of delivery, and in other courts.
If a case is pending before a court which is also competent according to the same paragraph, or if a decision has been made by such a court in relation to a request, a new case may not be brought between the same parties for the same reasons. However, if it is not fulfilled in the country where the first lawsuit was filed, this provision does not apply.
A decision by a court in a contracting country in respect of a case referred to in paragraph 1 will be enforceable in each of the other contracting countries as soon as the formalities in that country have been completed if it can be carried out in that country. These formalities do not allow the case to be heard again. In cases arising from carriage pursuant to this Convention, no security may be requested from the citizens of the Contracting States residing in or having their workplaces in these countries.
Lawsuits arising from the transportation made pursuant to this Agreement must be filed within one year. However, in the case of willful misconduct or faults that are deemed to be willful misconduct by the court, this period is three years and begins on the following dates:
a) In case of partial loss, damage or delay in delivery, from the date of delivery,
b) In case of total losses, if there is no agreed time limit 30 days after the end of the agreed time limit, on the 60th day after the delivery of the cargo by the carrier,
c) In all other cases, at the end of the three-month period following the conclusion of the contract of carriage.
The day the limit period starts to run will not be included in this period.
A written request postpones the time limit until the carrier rejects it with written notice and returns the documents related to it. If a part of the request is accepted, the time period starts again for the disputed request.
PROVISIONS REGARDING JOINT TRANSPORTATION
When the transport, which is regulated by a single contract, is carried out jointly by road transporters, each is responsible for the entire transport. The second carrier and the carriers following him agree to the agreement, as they have accepted the goods and the consignment letter and under the conditions in the consignment letter.
1. The carrier, who accepts the cargo from the previous carrier, gives him a signed and dated receipt. He writes his name and address on the second copy of the referral letter. If necessary, the referral letter and receipt shall also write the reservation referred to in article 8, paragraph 2.
2. The provisions of Article 9 shall apply to the relations between joint carriers.
Actions related to loss, damage or delay liability, except in cases where there is a counter claim brought forward in a lawsuit based on a claim based on the same transport contract, or where it counts its receivables, can only be brought to the detriment of the first carrier, the last carrier or the carrier performing the carriage at the time of the loss, damage or delay. can be opened. It is possible to file lawsuits against several of these carriers at the same time.
The carrier, who has paid compensation in accordance with the provisions of this Agreement, has the right to recover the compensation, together with the interest paid on this compensation and the expenses he made, from those who participated in the carriage, according to the following conditions.
a) The carrier responsible for the loss and damage has to bear the indemnity alone, whether it is paid by himself or another carrier.
b) When the loss or damage is caused by the actions of two or more carriers, each of them shall pay an amount in proportion to his/her share in the liability and shall be liable in proportion to the transportation fee.
c) If it cannot be determined which carrier will be responsible for loss and damage, the compensation amount will be shared among all carriers as stipulated in paragraph b).
If one of the carriers is unable to pay his debts, the share of compensation to be paid will be divided among the other carriers in proportion to the fees they will receive for transportation.
1. After the notice of the case has been served and he has been given the right of defense, the amount of the compensation
If it has been determined by a court decision, the carrier who is faced with a request pursuant to Articles 37 and 38,
It cannot be a matter of discussion whether the payment made by the requesting carrier is in place or not.
2. The carrier, who wishes to obtain the right to get his money back through court, may apply to the competent court of the country where the main workplace or branch or agency of one of the relevant carriers is located. All the carriers involved may be cited as defendants in the same action.
3. The provisions of Article 31, paragraphs 3 and 4 shall apply to the decisions to be taken regarding the cases envisaged in Articles 37 and 38.
4. In cases between carriers, the provisions of article 32 shall apply. However, the statute of limitations begins either from the date of the last court decision determining the amount of compensation payable under this agreement or, if there is no such decision, from the date of payment.
Carriers are free to agree on binding provisions among themselves, except for those written in Articles 37 and 38.
NULLITY OF CONTRACTUAL CONDITIONS
Subject to the provisions of Article 40, any condition that directly or indirectly violates the provisions of this Agreement is void. The invalidity of such a condition does not necessitate the invalidation of other provisions of the contract.
In particular, insurance indemnity or any other similar clause in favor of the carrier or any clause changing the burden of proof is null and void.
APPLICATION TO OTHER WAYS OF TRANSPORT
The Convention also takes into account different modes of transport. Besides the general administration of the forwarder, the CMR also lays down specific regulations for Ro-Ro or combined transport (Article 2), commuter transport (Article 3) and successive transport (Articles 34-40).
If the vehicle carrying the goods is transported on a part of the route by rail, sea or inland waterways (or air) and the goods are not unloaded from the road freight transport vehicle, the CMR Convention still applies to all transport.
However, while the vehicle is being transported by another mode of transport, in case of loss, damage or delay of the goods due to a situation that may arise only from this other mode of transport, the responsibility of the land transporter will be determined by the mandatory national or international law applicable to the other mode of transport. If no such mandatory law exists, the CMR terms will continue to apply.
Successive shipments by different carriers, regardless of whether they are carried out by road, are covered by the CMR if they are all covered by a single transportation contract. The original carrier, the last carrier and the original carrier for which the damage occurred during their carriage may be held responsible for damage, loss or delay.
APPLICATION TO CONTAINERS
The CMR is valid for carriages made in 'vehicles' by road. These "vehicles" are motor vehicles, articulated vehicles, trailers and semi-trailers; containers are not included.
An ISO container consists of 'goods', not a vehicle, and CMR is not always valid when transporting containers from one country to another. If the container stays on 'wheels' throughout transit, the CMR will apply, but if the container is unloaded at a port or rail terminal and transported separately by rail or sea, this will disconnect from the CMR.
However, it should be noted that even in cases where the CMR is not legally valid, the parties may agree to implement the terms of this convention by contract, and this is done by some carriers.
In the light of the developments in technology, since 2001, UNECE (United Nations Economic Commission for Europe) and UNIDROIT have been working on the preparation of a Protocol that will enable CMR procedures to be carried out electronically and replace the CMR transport document with an electronic document.
Such provisions have been added to international conventions for sea, air, rail and inland waterway transportation; Special provisions on electronic data exchange have not yet been added to the conventions for road transport only.
In this direction, a draft Protocol has been prepared by UNIDROIT and a questionnaire study has been carried out to get the views of the parties involved in this study. As a result of the study, most of the participating countries have approved the draft.
In the said protocol draft, it is planned to include provisions such as issuing the CMR transport document using different information transmission methods including telegraph, telex, e-mail or EDI, and such methods are considered equivalent to paper-based documents.