The transport of goods by road.
Practical advice for carriers and consignees of goods.
Friday, January 3, 2025
Paula Gómez
The transport of goods is a fundamental pillar of global trade. However, incidents such as damage, loss, or delivery delays are very common problems that can affect business relationships, creating uncertainty and even conflicts. In recent months, I have been involved in negotiations where the recipient company of the goods withheld the amount of an invoice from the carrier for, according to them, failure to deliver part of the goods. It is essential to know how to act to avoid these situations, because information is power. Below, we will analyze the international and national regulations on the delivery of goods by road to determine the proper way to proceed in such situations.
The 1956 Geneva Convention: European goods transport.
In Europe, the 1956 Geneva Convention (CMR) regulates the contract for the carriage of goods by road between the Member States of the European Union. The first key idea is that the transport contract is governed by the consignment note, although its absence, irregularity, or loss does not affect the existence or validity of the transport contract, in accordance with Article 4 of the CMR.
Getting into the subject, it is important to remember that the carrier is obliged to check the accuracy of the entries in the consignment note relating to the number of packages, as well as marks and numbers, the apparent condition of the goods, and their packaging at the time of taking charge of the goods. But what happens if the goods loaded are not the ones listed in the consignment note? The same Convention provides that if the carrier has no reasonable means of verifying the accuracy of the information in the consignment note, they may record their reservations. That is, if as a carrier there are no means to certify the condition of the goods—for example, because they are not responsible for loading and unloading—it is advisable to make a reservation in the consignment note, justifying the lack of means to verify the condition of the goods being transported.
However, the reservations do not bind the consignor of the goods unless they have been expressly accepted. Therefore, my advice is that, as a general rule, consignor companies should not sign any consignment note if there is a reservation recorded, without first carefully reviewing the type of reservation and its content.
As the consignee, reservations for loss or damage to the goods must be made at the time of delivery if the damage is apparent, or within seven days thereafter—excluding Sundays and public holidays—if the damage is hidden. It is essential to make reservations within the legal deadline, since otherwise the goods will be deemed to have been delivered as described in the consignment note.
If reservations are not made within the period provided by law, all rights to take legal action to claim are lost. And if the reservations have been made in accordance with the law, the limitation period for bringing actions is very short: 1 year, except in cases of fraud or gross negligence, in which the period is extended to 3 years, in accordance with Article 32 of the CMR.
As legal counsel for the carrier company, I found that my client was not responsible for loading and unloading the trucks, but did not make any reservation in the consignment note to justify the lack of means to examine the goods. On the other hand, the recipient company made a reservation at the time of delivery of the goods, specific and justified, stating that the delivery was incomplete and that 5 pallets of product were missing, and the carrier signed in agreement. This led my client to the worst possible scenario: the carrier lost any chance of defense, since 1) they did not state their lack of means to examine the goods to be transported; 2) the recipient made a duly reasoned reservation in the consignment note at the time of delivery for missing goods; and 3) the carrier signed that reservation.
That is why it is so important to know the regulations on the transport of goods, as they can make the difference between being held liable or not under the law. In this case, our client learned a valuable lesson, as well as receiving a crash course from GRÀCIACALBET on the practical application of international goods transport regulations.
National regulations: Law on the contract for the carriage of goods by road
In Spain, Law 15/2009 of November 11 regulates the transport of goods and provides the legal framework for companies facing problems of damage or loss of goods during transport, in domestic operations or when international regulations do not apply and Spanish law can be applied, in accordance with the rules of private international law.
In the preamble of the Law, it is already specified that it closely follows the CMR Convention —Geneva Convention of 1956— and the CIM Convention —Bern Convention of 1970, for the transport of goods by rail—, making the regulation very similar.
The first point to highlight from the national regulations is that the carrier “shall be liable to the consignor for the complete performance of the transport,” according to Article 6 of Law 15/2009. This applies regardless of whether the carrier performs the transport by their own means or through a third party. Therefore, there is a regime of quasi-objective liability, which carriers are often unaware of.
In the same way as international regulations, there must be a consignment note detailing everything essential to identify the contract, the place and date of issue; the name of the consignor and the shipper; the name of the carrier or, where applicable, the third party receiving the goods; the date and place of receipt of the goods, etc. However, as in international regulations, the absence or irregularity of the consignment note will not render the contract non-existent or void, in accordance with Article 13 of the Law.
Spanish law, just like the 1956 Geneva Convention, states that the carrier must check the apparent condition and packaging of the goods at the time of receipt. If, as in the specific case of our client, the carrier is not the one loading and unloading the goods and therefore has no means to inspect them, this must be noted in the consignment note. Given the quasi-objective liability established by the Law, such a reservation becomes essential to avoid being held liable for damages or defects that are not the carrier’s responsibility.
The deadlines under Spanish law are the same as at the European level: reservations for apparent damage or defects must be made at the time of receipt of the goods, or within 7 days after delivery in the case of hidden damage or defects (Article 60). Reservations must always be made in writing and with proper justification. Case law has never considered general complaints valid; the specific goods that have suffered damage, loss, or delay must be identified. As with international regulations, if reservations are not made within the deadline, the goods will be deemed to have been delivered in good condition, and any right to claim will be lost.
From the carrier’s point of view, the most important thing is to state in the consignment note that they do not have the means to verify the condition of the goods and, in any case, not to sign any reservation made in the consignment note by the consignor or consignee without first checking its accuracy.
As in international regulations, if reservations are properly made, the limitation period for actions arising from the contract is 1 year, except in cases of fraud or gross negligence, in which the period is extended to 2 years (Article 79). And here we see one of the main differences with international regulations: in Spain, in cases of fraud or gross negligence, the period may be extended up to 2 years, while under the Geneva Convention it may be extended up to 3 years.
As the consignee, it is essential to put reservations in writing to the carrier, describing the loss or defect at the time of delivery in the consignment note itself or, if the defects are hidden, within the following 7 days.
Therefore, from the carrier’s point of view, the most important thing is to state that they do not have the means to verify the condition of the goods at the start of transport and, in any case, not to sign any reservation made by the consignor or consignee, since, according to Article 48, the carrier will not be liable for the total or partial loss of the goods if they prove that the loss, damage, or delay was caused by the fault of the consignor or the consignee.
As the recipient, it is essential to state any reservations to the carrier in writing, describing the loss or damage at the time of delivery or, if applicable, within 7 days afterward. Otherwise, if such reservations are not made, it will be presumed that the goods were delivered in the condition described in the Bill of Lading.
Information is power
Every day, tons of products are delivered through ground transportation. Our economy relies so heavily on the transport of goods that it is often taken for granted. However, understanding the four basic keys to the regulation of land freight transport, whether national or international, can make a real difference. It can be as simple as making a brief but precise note on the Bill of Lading or, in the event that it includes reservations, choosing not to sign it or signing it with a “not in agreement.”
If, as a carrier, you do not have the means to verify the condition of the goods before the start of transport, this must be stated in the Bill of Lading. If, as the recipient, the goods received do not match —or show any apparent defect— this must be recorded in the Bill of Lading at the time of delivery, and if a hidden defect is discovered, within the following 7 days. If no reservations are made, any right to claim will be lost. Furthermore, as a carrier, in general, you should not sign the reservations made by the recipient, as doing so would imply their acceptance.
Having this basic knowledge and being able to pass it on to the drivers and carriers who carry out the delivery is essential to reduce and prevent future conflicts.
At GRÀCIACALBET, we can help you. Do not hesitate to seek advice to learn how to file a claim and protect your rights.
