Law in practice (Files)

Who has the right of disposal should circumstances prevent carriage in the CIM area, how far does this right extend? Is it lawful for the carrier to sell the goods? Can the goods be returned? In what cases can the carrier destroy the goods, and at whose cost?

With the CIM Uniform Rules providing no legal definition of “circumstances preventing carriage”, the key question under Article 20 CIM is whether a material disruption of the operational execution of the cross-border movement can be identified in the time between the goods being accepted and delivery. The question is not one of determining the carrier’s liability, but rather of avoiding the risk of imminent damage to the goods or delayed delivery as set out in Article 23 CIM et seq.

Article 20 CIM 1999, “Circumstances preventing carriage”, was drafted in the same spirit as Article 14 CMR 1956, albeit with one major difference: while road carriers are obliged to seek instructions in all events, rail carriers themselves decide whether it is i) advisable to seek instructions or ii) preferable to carry the goods by modifying the route. In any event, all steps taken by the carrier must be in the interest of the person entitled to dispose of the goods (Article 20 § 1 CIM).

Information flows and timely execution of processes between carrier and person entitled thus play a key role in establishing the good faith of the parties. The uniform procedure for dealing with circumstances preventing carriage is established at international level in Article 22 CIM. If the circumstances preventing carriage are such as to preclude all onward carriage and the carrier continues to store or otherwise take charge of the goods on behalf of the person entitled, the carrier may instigate the sale of the goods in specific cases (e.g. due to the perishable nature or condition of the goods, or if the costs of storage would be out of proportion to the value of the goods). The carrier may also sell the goods if within a reasonable time he has not received instructions to the contrary from the person entitled – see Article 20 § 2 in connection with Article 22 § 3 CIM. The proceeds of sale, after deduction of all costs, must be placed at the disposal of the person entitled.  This is not a conventional sales transaction, however, and there is no transfer of ownership. In such cases, the carrier acts on behalf of the person entitled, and at their expense. National law applies only insofar as it details the manner in which the sale takes place (Article 22 § 5 CIM). In order to provide a harmonised process for use between carriers and persons entitled and reduce costs for CIT members, CIT has detailed the procedure for subsequent orders in the event of circumstances preventing carriage in Appendix 8 + specimen CIT8 GLV-CIM, which also exists in electronic form.

Finally, carriers are only entitled to destroy the goods at the consignor’s expense if the goods can be neither stored nor sold. In the absence of instructions, Article 22 § 6 CIM permits the carrier to return the goods to the consignor or, if it is justified, destroy them at the cost of the consignor.

erik.evtimov(at)cit-rail.org

According to Article 23 of the CIM UR, the carrier is liable to the customer between the time of taking over of the goods and the time of delivery. The contract of international carriage of goods by rail thus starts with the taking over of the goods from the consignor and ends with the delivery of the goods to the authorised consignee.

The maximum limit of this causal liability of the carrier with respect to the customer in the event of total or partial loss of the goods is specified at 17 SDR (approx. €23) per missing kilogram of gross mass in Article 30 § 2 CIM. In the case of partial loss of the goods only the damaged part of the sending will be compensated up to 17 SDR per missing kilogram. In difference to the other transport conventions where also parcels can be compensated separately (like in air transportation in the Montreal convention or sea transportation like in Athens convention) the COTIF/CIM does not provide compensation for single parcels but just for missing kilogram of total gross mass short of the envisaged sending by rail.

A formal report is to be filled out when partial loss of the goods or damage to them is discovered or presumed by the carrier or alleged by the cus­tomer Article 42 § 1 CIM. Partial loss means that part of the load of a full wagon load is missing or a reduction in the quantity of the goods measured by mass weight or dimensions.

The carrier is obliged to fill out a formal report without delay and if possible in the presence of the person entitled (Article 42 § 2 CIM) on a form complying with the speci­men of the CIT freight documentation shown in Appendix 20 and newly an electronic formal report as shown in Appendix 20a. The formal report is intended to report the condition of the goods and the significance of the loss or damage so it may therefore only include well established facts but not conjecture. It must describe facts clearly and comprehensively so that they can be confirmed in a court if necessary. This means no confirmation of the liability of the issuing railway undertaking for the asserted partial lost or damage of the goods.

erik.evtimov(at)cit-rail.org

Who is responsible for completing the formal report and what functions is the formal report required to fulfil? How is the term “carrier“ as stated in Article 42 § 1 CIM to be understood for these purposes? What are the key features of the formal report?

Legal definition in accordance with CIM UR

When partial loss or damage is discovered or presumed by the carrier or alleged by the person entitled, the carrier must without delay, and if possible in the presence of the person entitled, draw up a report stating, according to the nature of the loss or damage, the condition of the goods, its weight and, as far as possible, the extent of the loss or damage, its cause and the time of its occurrence; such is the legal definition of Article 42 § 1 CIM. The term "carrier" is a collective term in the CIM UR and in the CIT’s documents. It is understood to mean the contractual or a successive carrier. In addition, a substitute carrier or an auxiliary is required to complete the formal report depending on the situation in accordance with Article 27 § 2 CIM and Article 40 CIM on behalf of and for the account of the contractual or successive carrier.

Standardised form for the formal report based on CIT20

A standardised form for the formal report on the basis of Article 42 CIM is included in Appendix 20 of the GTM-CIT. The application of the GTM-CIT, in accordance with Section 2.5 b) of the CIT statutes, is mandatory for CIT members as a result of their membership (it is only possible to "opt out“). Working sheet 06-01 in the GTM-CIT, which describes the action to be taken in the event of loss and damage, is also binding for CIT members. When partial loss or damage is discovered or presumed by the carrier or alleged by the person entitled, the carrier must without delay, and if possible in the presence of the person entitled, fill out a Form CIT 20 formal report. The binding legal basis for this is Article 42 § 1 CIM.

A form available on the CIT website (www.cit-rail.org) provides members with the possibility of copying, printing out and forwarding the formal report electronically.

Finally, it must be pointed out that the function of the formal report is primarily to collect and record facts relating to the loss or damage of the goods and to include no statement relating to the carrier’s liability.

Erik.Evtimov(at)cit-rail.org / Original : DE / 2016-06-25

Does the carrier have to prepare a report if he identifies damage to the packaging, but no damage to the goods, and how is this damage to the packaging to be compensated for?

As a basic principle, Art. 42 CIM states that a report is to be prepared in the event that partial loss or damage is discov­ered by the carrier or suspected or claimed by the author­ised person. The decisive factor is whether the packaging belongs to the goods within the meaning of Art. 42 CIM, or not.

The General Secretariat of the CIT is of the opinion that this question is to be answered in the positive and that the packaging belongs to the goods within the meaning of Art. 42 CIM (also agrees: Dr. jur. Béla von Nánássy, Das internationale Eisenbahnfrachtrecht, page 705 and Dr. jur. Josef Wick, Das internationale Eisenbahnfrachtrecht, page 319). This means that a report has to be prepared in every case, even when only the packaging is damaged and not the goods.

For the issue of liability, Art. 23 CIM is applicable. Para­graph 1 regulates the carrier’s liability and paragraphs 2 and 3 the possibilities of exemption from liability. As a basic principle, the carrier is also liable for damage to the pack­aging (Art. 23 para. 1 CIM), if he cannot exempt himself from liability.

Another question is that of the amount of compensation. In the event that this involves one-way packaging, such pack­aging has no value and legally, therefore, no damage has occurred. In this case, the carrier does not have to pay any compensation. If, on the other hand, the packaging has a certain value, then the compensation is to be calculated in accordance with principles laid down in Art. 32 CIM.

Dominic.Quiel(at)cit-rail.org / Original : DE / 2013-12-19

A railway undertaking acts as a substitute carrier. The car­rier which entrusted it with providing carriage refuses to settle the debt representing the cost of the carriage.

What is the time limit for taking action?

The CIM Uniform Rules only contain specific provisions for substitute carriage in respect of liability: all the provisions of the Uniform Rules governing the liability of the carrier also apply to the liability of the substitute carrier for the carriage performed by him (see Article 27 § 2 CIM).

However, the contract concluded between a carrier and a substitute carrier is also a contract of carriage, subject to the CIM Uniform Rules if the contract applies to international traffic or subject to national law if the traffic is domestic. In this second contract of carriage, the carrier is the consignor and the substitute carrier is the carrier. The time limit for taking action for debts due to the substitute carrier (carrier in the context of the second contract) from the carrier proper (consignor in the context of the second contract) is therefore fixed either by the rules in Article 48 CIM or by national law, depending on the type of traffic.

Henri.Trolliet(at)cit-rail.org / Original : FR / 2013-07-25

During the course of a movement subject to the CIM Uniform Rules, the carrier was responsible for exceeding the transit period. The prolongation of the journey caused the goods to deteriorate significantly. The person entitled presented his claim late and the claim was for a large amount (it represented the costs of replacing the goods and the costs of stopping production in the consignee’s factory).

Is the carrier obliged to compensate the person entitled and if yes by what amount?

In the event of exceeding the transit period, action is time barred in accordance with Article 47 § 2 c) CIM if the person entitled does not assert his rights against one of the carriers referred to in Article 45 § 1 CIM within sixty days of delivery of the goods. In the cases outlined in Article 47 § 2 d) CIM (gross negligence) the right of action is not extinguished.

Where losses, including damage, result from exceeding the transit time, the carrier must pay compensation. The compensation, however, is limited to four times the carriage charge (see Article 33 § 1 CIM). Legislators decided on the principle of not accumulating compensation at the eighth revision of the CIM Uniform Rules. It is true that the losses are a direct result of exceeding the transit time. Nevertheless, the compensation which the carrier has to pay must be calculated by reference to the provisions concerning compensation in the event of the transit time being exceeded even if the compensation relates to damage. The cases identified in Article 36 CIM (gross negligence by the carrier) are not affected.

The carrier of course is quite free to pay compensation exceeding that owing on the basis of Article 33 if he thinks that would be appropriate (see Article 5 CIM).

Henri.Trolliet(at)cit-rail.org / Original: FR / 2013-06-03

In the course of a movement subject to the CIM Uniform Rules, a wagon (consigned as goods rather than as a means of transport) and an intermodal transport unit (UTI) are damaged. The customer claims reimbursement of the charges for hiring a replacement wagon and UTI whilst his wagon and UTI are being repaired.

What liability does the carrier have and what compensation must he pay?

Article 23 CIM (Basis of liability) is to be used to assess liability for the damage to the UTI and Article 24 CIM (Liability in case of carriage of railway vehicles as goods) is to be used to assess liability for damage to the wagon.

If the carrier is liable, then compensation is to be calculated in accordance with Articles 32 §§ 3 and 4 CIM for the damage to the UTI and the wagon (the compensation shall be limited, to the exclusion of all other damages, to the cost of repair. The compensation shall not exceed the amount payable in case of loss). As appropriate, compensation for exceeding transit time may likewise be due in accordance with Article 33 §§ 1, 4 and 5 CIM.

By “other damages”, damages other than the cost of repair, essentially we mean loss of profit but in this case they also include the charges for hiring another wagon and another UTI. It is to be noted that at the time the CIM Uniform Rules were last revised, a proposal intended to provide compensation for losses arising from the loss of use of a rail vehicle in addition to compensation for repair of the vehicle was rejected.

Article 32 § 4 CIM (refund of the carriage charge, customs duties already paid and other sums paid in relation to the carriage of the goods lost as a proportion of the loss of value at the destination) cannot cover the charges for hiring the replacement wagon and UTI since that article only targets amounts paid out for carriage and related activities. The hire charges in question, however, follow from the damage and not from carriage. In addition, we might query whether Article 32 is located in the right place in the CIM; compensation for the damage to the rail vehicles and to the UTI is not calculated as a function of loss in value at the destination (c.f. Article 32 § 1 CIM), but on the basis of the costs of their repair (c.f. Article 32 § 3 CIM). This issue is worth being examined when the CIM Uniform Rules are next revised.

Henri.Trolliet(at)cit-rail.org / Original: FR / 2012-12-18

Goods loaded into wagons forming part of a trainload consignment are damaged. The goods were consigned with a single consignment note. The carrier is liable for the damage. Should the compensation paid to the person entitled be allocated out per wagon or per consignment note?

The procedure for allocating out compensation for damage in transit paid out in accordance with the CIM is described in point 3.3.8 of the AIM. An allocation statement conforming to Appendix 2 to the AIM is made out for each consignment in the same way as a consignment note is made out for each consignment. Except where otherwise agreed between the consignor and the carrier, a consignment note can only cover the load on one wagon (cf. Article 6 § 6 CIM). In other words, a consignment note and an allocation statement are to be made out for each wagon unless an exception to that rule has been agreed in the customer agreement (cf. GTM-CIT, working sheet 02-02, under consignor, second indent).

Henri.Trolliet(at)cit-rail.org / Original: FR / 2012-11-06

- may the formal report be made out by a third party?
- must loss or damage recorded en-route be confirmed by the carrier at the destination?
- may recording of loss or damage to combined traffic be postponed to arrival at the final destination of the goods?

In the event of the partial loss of or damage to the goods, the carrier must without delay, and if possible in the presence of the person entitled, draw up a report stating, according to the nature of the loss or damage, the condition of the goods, their mass and, as far as possible, the extent of the loss or damage, its cause and the time of its occurrence (cf. Article 42 § 1 CIM). The carrier may entrust that procedure to a third party, and in that event the third party acts in the name of and on account of the carrier. That option is provided for, for example, in the “GTC provision of services” (see points 1, 5 and 10 of those GTC) and in the “Claims Handling Agreement Checklist” (see the explanatory notes to point 3.2).

Loss or damage may be noticed en route or at the destination. When it is noticed en route, the formal report need only be supplemented at the destination if additional enquiries need to be made (see letter F (Complementary report made by the destination carrier) in the record of the facts box on the specimen formal report forming Appendix 20 to the GTM-CIT).

The special arrangements for recording loss and damage for combined traffic are covered by point 9.3 of Appendix 20 to the GTM-CIT. These provisions provide that when combined traffic

• is made by means of a UTI, sealed immediately after loading the goods in the UTI in such a way that the seal cannot be broken without it being apparent, and
• carriage by rail is followed by carriage by another mode of transport, and
• forced entry is presumed or discovered either during carriage by rail or when carriage by rail ends,

the UTI will be resealed by the carrier who presumed or discovered the forced entry. Joint examination is to be postponed until the time the container is unloaded by the final consignee (as defined by the contract of carriage).

The circumstances noted at that time, in the presence of a representative of the carrier, will be accepted by the carriers as being exactly the condition in which the goods were at the time carriage by rail finished, provided that the new seals are only broken in the presence of the representative of the carrier taking part in recording the condition of the consignment.

These rules are not applicable if the ultimate destination of the UTI is in a country other than that in which carriage by rail finished.

Henri.Trolliet(at)cit-rail.org / Original: FR / 2012-07-17

Which carriers have to take part in sharing compensation paid out for loss and damage to international freight traffic?

Chapter 3 of the AIM has been based on two fundamental principles since 1 July 2006:
- if a carrier or one of his sub-contractors is liable for loss and damage within the meaning of the AIM, that carrier is required to bear the compensation paid to the customer (see point 3.3.2 AIM);
- if there is no carrier liable within the meaning of the AIM, compensation is to be shared between the carriers having taken part in the carriage (participating carriers). Non-participating carriers (see point 3.3.3 AIM) however, are excluded.

Because members of the CIT held differing views on how that point of the AIM should be applied, its phraseology was clarified further in the 1 July 2011 edition; no change was made to the principles however:

To the extent that the compensation cannot be charged to one or more carriers liable, it is to be allocated to the carriers taking part in the carriage (participating carriers). Excluded from this are carriers who have accepted neither the goods nor the consignment note (non-participating carriers).

In other words only those carriers who have not participated in the execution of carriage because it was terminated en route (total loss or damage, seizure of the consignment by customs, etc.) are excluded from participating in the allocation of the compensation paid out.

For further information on this subject, see circular letter CIT 27/2011 dated 15 September 2011.

Henri.Trolliet(at)cit-rail.org / Original: FR / 2011-09-17

Does the compensation to be paid to the customer in the event of the loss of the goods also have to include the value added tax (VAT) on the goods? Is the situation different for excise duties?

A clear distinction must be made between excise duties and VAT. Excise duty is a duty which in general is imposed on alcohol and tobacco; it is based on quantity and is only levied on final sale of the goods (or notification that the goods are missing). VAT, by contrast, is an indirect tax on consumption of all types.

In accordance with Article 30 § 4 CIM, VAT must be considered as “another sum paid in relation to the carriage of the goods lost” and the person entitled must be compensated if he has already paid the VAT.

By contrast, excise duties for goods carried under a procedure suspending those duties do not have to be paid to the person entitled.

Henri.Trolliet(at)cit-rail.org / Original: FR / 2011-08-17

To what extent is the carrier liable for wettage damage to goods transported in a closed wagon?

Two cases need to be distinguished when goods being carried in a closed wagon are damaged by wettage:

a) The person entitled under the contract of carriage (consignee or consignor) is not the keeper of the wagon in question

In accordance with Article 23 § 1 CIM, the carrier is liable to the person entitled for the damage. Only where there is an obvious fault in the wagon can there be any question of sharing the liability between the carrier and the person entitled on the basis of Article 23 § 2 CIM1. It is possible the carrier may have recourse against the wagon keeper on the basis of the contract of use, but that doesn’t concern the person entitled under the contract of carriage

b) The person entitled under the contract of carriage (consignee or consignor) is also the wagon keeper In accordance with Article 23 § 1 CIM, the carrier is relieved of liability (fault of the person entitled – inadequate maintenance of his wagon) (1).

(1) Also see the commentary by Allégret, excerpt from Juris-Classeur Commercial, volume 685, Note 57

Henri.Trolliet(at)cit-rail.org Original: DE

To what extent is the carrier responsible for the consequences of failure to carry out the instructions of the person entitled or failure to carry out the instructions properly where circumstances prevent carriage?

Article 22 CIM makes no provision for liability in connection with circumstances preventing carriage or delivery.

However the similarity between subsequent orders and instructions in consequence of circumstances preventing carriage and delivery justifies the assumption that liability issues should be handled in the same way. It can therefore be assumed that in both cases fault on the part of the carrier creates a liability but that the compensation payable does not exceed the compensation to be paid in the case of the complete loss of the goods (Article 19 § 6 CIM).

We must note the need to make Article 22 CIM more specific in the next revision of the CIM.

Henri.Trolliet(at)cit-rail.org Original: DE

Does a forecast hailstorm represent a circumstance which the carrier was unable to avoid and the consequences of which he was unable to prevent?

During a national rail transport movement in France, a hailstorm which had been forecast by meteorologists caused damage to Renault vehicles which were being carried on a train which was stabled at Nîmes marshalling yard. Over 300 vehicles were damaged and the resulting amount of the damage was ca. €400,000.

The Cour d’Appel de Versailles has decided in the second instance, having regard to article 133-1 of the Commercial Code, amongst other things, that the carrier cannot claim relief on the basis of force majeure, as the damage to the vehicles was both foreseeable and avoidable, as the railway company could have moved the wagons out of the hailstorm area on a special train, or could at least have fitted protective covers over the vehicles. With rationale based on foreseeability and avoidability, this interpretation of French law is consistent with COTIF law, according to which relief of liability then results if the damage is caused “by circumstances which the carrier could not avoid and the consequences of which he was unable to prevent” (Art. 23 § 2 CIM). It has to be emphasised, though, that the Commercial Code foresees no preferential grounds for release from liability in the sense of the CIM Uniform Rules, such as e.g. carriage in in open wagons (Art. 23 § 3 lit. a CIM).

Above and beyond this, the Cour d’Appel ruled that the carrier cannot rely on contractually agreed limits of liability due to his gross negligence. International railway transport law also includes a similar regulation in Article 36 CIM, according to which the carrier loses his right to limited liability ex lege – pursuant to Article 33 CIM – having behaved recklessly and with knowledge that such loss or damage would probably result. The deciding factor in this case is the fact that the damage would not have occurred had the carrier’s duties been properly fulfilled (Article 36 in fine CIM and tenor 1 of the verdict of the Cour d’Appel, Versailles of 2nd July 2009) (1).

(1) Excerpts printed in the OTIF Bulletin of International Carriage by Rail 1/2010, p. 17 et seq. for the English version.

Erik.Evtimov(at)cit-rail.org Original: DE

Are the costs of experts “other sums” within the meaning of Article 30 § 4 CIM?

This issue concerns the external liability of the carrier to customers for the “other sums paid in relation to the carriage of the goods lost”. The provisions of Article 30 § 4 also apply mutatis mutandis to damage to goods in accordance with Article 32 § 4 CIM.

Compensation for the goods lost is composed of two parts. Firstly, Article 30 § 1 CIM provides for compensation in accordance with the current market price of the goods or, failing that, with the usual value of the goods lost at the point they were accepted.

Article 30 § 4 CIM provides for the second part of the total amount; carriage charges, customs duties and similar amounts paid out in relation to the carriage of the goods lost. Under “other costs” the costs for, inter alia, escorting the consignment, repairing the packaging, (not however for the packaging of the goods itself since that is included in the value of the goods) as well as the costs of examination of the contents of the consignment by the courts or by an expert (1).

The costs of experts therefore fall within the scope of Articles 30 § 4 CIM and 32 § 4 CIM as “other sums paid in relation to the carriage of the goods” lost or damaged. Fees for experts, other costs of establishing loss and damage together with court and legal costs are to be shared between the participating carriers in accordance with point 3.3.6 AIM. They form part of the compensation to be paid to the customer for the loss of or damage to his goods.

(1) Also see Nánássy, Das internationale Eisenbahnrecht, Wien 1956, [International Railway Law, Vienna, 1956] page 607 in fi ne with a reference to other authors.

Erik.Evtimo(at)cit-rail.org Original: DE

Who is in charge of rectifying loads ?

If goods are loaded by the consignor, then he is responsible in accordance with Article 13 § 2 CIM for all the consequences of defective loading and in particular for any loss and damage sustained in consequence.

A reference to Article 13 § 2 CIM is made in work sheet 05-03 GTM-CIT (on collection of charges) and the work-sheet also specifi es that the carrier is to raise charges against the consignor for the costs arising from the action he had to take because of defective loading by the consignor.

Erik.Evtimov(at)cit-rail.org Original: DE

In the case of defective loading by the consignor, can the costs of adjusting the load be charged to the consignor by any successive carrier (for example, the fourth in the movement chain)?

If the carrier who adjusts the load cannot recover the costs from the consignor, does the AIM allow him to allocate them to the participating railway undertakings?

These two questions must be considered together. In considering them, a distinction must be made between the external relationship with the consignor and the internal relationship between the carriers.

In the absence of any other agreement, Article 13 § 1 CIM explicitly covers the responsibility of the consignor for the loading of goods in full wagonloads. Under that article, the carrier has a right of recourse against the consignor for defective loading.

Chapter 5 AIM covers the internal relationship. In accordance with that chapter, costs arising under Article 13 § 2 CIM which cannot be charged to the consignor or for which no carrier can be held liable within the meaning of point 3.3.2.2 AIM are to be allocated in accordance with point 3.3 AIM. Irrecoverable charges for transhipment or adjustment of loads are to be allocated in the same way as amounts shown on the consignment note which cannot be recovered.

Even so, can the consignor escape liability by claiming that the carrier is obliged to check the load before departure (see GTM CIT 02-01)?

Enforcement of the appropriate rights and obligations is clearly laid down in the GTC-CIM (points 6, 10, 11). Based on those points, GTM-CIT 02-01 provides for the carrier to check the load to ensure the safety of operations, a technical/operational obligation for the carrier. There is currently no practical or legal reason to reinforce the liability of the carrier by such a legal presumption. Indeed, that would confl ict with the clear phraseology of Article 13 § 1 CIM in which both contractual liability (in sentence 1) and statutory liability (in sentence 2) are clearly defined.

Erik.Evtimov(at)cit-rail.org Original: DE

Who is liable for damages?

I. The circumstances: movement of upholstered furniture in railway owned wagons. On arrival, damage by wettage was discovered. The cause, given by the formal report which was made out and by the damage report, was a defective roof to the wagon.

II. Assertions by the parties:

In the view of the destination carrier, the forwarding carrier is liable in accordance with point 27 para. 1 GCU because the leak in the wagon roof demonstrates a fault by the wagon keeper. Since a carrier liable within the meaning of 3.3.2.1 AIM has been clearly identifi ed, there can be no allocation of compensation.

Initially, the forwarding carrier declines all liability because under his national law, only the consignor is responsible for loading. After further exchanges of letters, the forwarding carrier acknowledges liability in principle, but, because the time and place of the damage to the goods is unknown, demands allocation of the compensation to all the successive carriers in accordance with point 3.3.1 AIM.

III. CIT General Secretariat’s commentary

The AIM only provides for the allocation of compensation on the basis of liability under the CIM (point 3.1.1 AIM). The various legal relationships accordingly are as follows:

Legal relationship 1: carrier-customer

The formal report which was made out and photos attached make it quite clear that the furniture was damaged by wettage. The carrier is strictly liable to the customer for this damage in accordance with the CIM Uniform Rules (Article 23 CIM).

Legal relationship 2: carrier-wagon keeper

The General Contract of Use for Wagons (GCU) applies to the relationship between the carrier and the wagon keeper. Under that contract, the wagon keeper is liable for loss and damage caused by the wagon if he is at fault (point 27 para. 1 GCU). Fault cannot be presumed, it must be proved. The formal report which was made out is not enough to provide this proof.

Legal relationship 3: between the carriers

Within the internal relationship between the carriers, the question is now how this compensation for the damage should be shared out. For allocating compensation under the CIM, members of the CIT have concluded the Agreement concerning the Relationships between Carriers in respect of International Freight Traffi c by Rail (AIM) (Article 52 CIM refers). The furniture was carried by successive carriers who apply the AIM by virtue of being members of the CIT. Under the AIM, if the carrier liable cannot be explicitly identifi ed in accordance with point 3.3.2 AIM, then the compensation is to be shared between the carriers in accordance with point 3.3.3 AIM using the allocation key given in point 3.3.7 AIM.

Summary

Unlike the CIM and AIM, if goods are damaged by a wagon the GCU only provides for liability in the case of fault. Fault cannot be presumed a priori but must be authoritatively proved in each individual case. The formal report simply documents and localises loss and damage, it does not however provide evidence for the carrier being at fault because a faulty wagon caused damage to the goods.

Erik.Evimov(at)cit-rail.org Original: DE

Because the points moved under a moving train, a wagon was damaged. How should the damage done to the wagon be calculated?

The answer to this question depends on who the wagon keeper can or wants to take legal action against.

If the wagon keeper was also the carrier and infrastructure user at the time, the legal relationship with the infrastructure manager who caused the damage is exclusively determined by the contract of use in question, itself based on the CUI Uniform Rules. Unlike the regulations for personal loss and injury (Articles 11-14 CUI), the CUI Uniform Rules contain no rules for calculating damage to property and hence national law applies (Article 8 COTIF). If national law provides no solution, it is conceivable that a court would refer to the principles set down in the GCU, relying on industry custom and practice and legal coherence.

If the wagon keeper was not also the carrier and infrastructure user at the time, he can take legal action both against (a) the wagon user and (b) the infrastructure manager.

a) In the fi rst case, the CUV Uniform Rules and the General Contract of Use of Wagons (GCU) are applied. Since, under Article 9 § 2 CUV, the infrastructure manager is an auxiliary of the wagon user, the infrastructure manager is liable for the damage to the wagon in accordance with the appropriate GCU rules for calculating damage.

b) The second legal relationship has to be judged against (non contractual) national law since there can be no contractual basis. If this should give no clear answer, it would once again be conceivable and natural for the judge to refer to the GCU rules.

In summary:

If the wagon keeper only wants or only can take legal action against the infrastructure manager, national law applies. If national law has no rules for calculating loss, then the GCU rules for calculating loss may possibly be used by a judge needing a precedent.

If the wagon keeper was not himself also the carrier and user of the infrastructure, he can take action against the wagon user and enforce damage calculation under GCU principles in that way.

Erik.Evtimov(at)cit-rail. Org Original: DE

A train formed up in Basel ready to transit Switzerland was incorrectly moved by railway undertaking 2 instead of railway undertaking 1. What is the legal situation?

In transport law, railway undertaking 1 remains the carrier and therefore liable to the customer. However, legally the goods are to be regarded as misrouted (in accordance with AIM Chapter 6). In accordance with the AIM, railway undertaking 1 has a duty to pay railway undertaking 2 for the transport costs which arise. Railway undertaking 2 is a person performing a service without authority and “obliged to perform the activity undertaken in a way that corresponds to the assumed intent of the other party and to his advantage” (Article 419 Schweizerisches Obligationenrecht [Swiss national law]). On the other hand, railway undertaking 1 has to compensate railway undertaking 2 for “all expenditure which is necessary or desirable and appropriate to the circumstances including interest and to relieve him of obligations undertaken to the same extent and to compensate him for other losses as decided by the judge” (Article 422 para. 1 Schweizerisches Obligationenrecht).

Erik.Evtimov(at)cit-rail.org Original: DE

Can the liability for the loss of a wagon be limited to the repair costs in accordance with Article 19 GCU?

Article 19 GCU initially regulates the reimbursement of repair costs for damage to the wagon, unlike Article 23 GCU, which regulates the amount of compensation for damage to the wagon. What kind of relationship exists between the two articles in the GCU? Are they applied alternatively, or cumulatively in the event of the loss of the wagon so that the wagon keeper is objectively entitled to receive full compensation?

Taking a legal approach to assessing the relevant Articles 19.2 and 23.2 GCU clearly shows the different scope of application within the GCU:

• Article 19.2 GCU has a "technical" function that also includes financial compensation for repairing and rectifying the damage to the wagon.
• However, the amount of compensation according to Article 23.2 GCU is directly related to the liability as specified in Article 22 GCU and therefore has a fundamental link to the principle of liability for presumed fault of the user RU in accordance with Article 22 GCU. Accordingly, the liability for fault has no limit in contrast to the causal liability in accordance with Article 23 CIM, but provides for full compensation limited to the usual value of the wagon, which is attained in the event of loss. This important limitation is postulated in the last sentence of Article 23.2 GCU and is also regarded as a legal limitation or legal bar to claims for speculative compensation for damage to the wagon in the event that the costs of loss of use in accordance with Article 13.3 GCU are added to the repair costs in accordance with Article 19.2 GCU.

The last sentence of Article 23.2 GCU, that "The total amount of compensation (for loss of use and for reprofiling wheelsets) may not exceed the amount that would be payable for loss of the wagon." provides the RUs as users of wagons with legal protection against claims by the wagon keeper down to the loss of the wagon.

Erik.Evtimov(at)cit-rail.org / Original : DE / 2020-04-07

Sub-contracted carriage is a legal innovation in the law of international carriage by rail which was enshrined by the COTIF 1999.

For passenger and freight transport, it is expressly cited in parallel provisions in the Uniform Rules Concerning the Carriage of Passengers by Rail (CIV), Article 3 b) and Article 39, and in the Uniform Rules Concerning the Carriage of Goods by Rail (CIM), Article 3 b) and Article 27.

However, the Uniform Rules Concerning the Use of Vehicles in International Rail Traffic (CUV) makes no express provision for the substitute carriage of empty vehicles. What does this silence on the part of COTIF/CUV mean? Is this simply a legal vacuum in the law governing international carriage by rail, or are the rules governing the conveyance of empty vehicles different from those governing the carriage of people and goods?

Firstly, Article 1 CUV is the default rule applicable to bilate-ral or multilateral contracts concerning the use of railway vehicles as means of transport. This optional character has enabled further multilateral implementation in the shape of the General Contract of Use for wagons (GCU), which entered into force concomitantly with COTIF 1999 on 1 July 2006. The parties to the contract of use are on the one hand keepers, as defined in GCU Appendix 2, and on the other hand user railway undertakings (RUs).

Under GCU Article 14, the conveyance of empty wagons takes place under a CUV international wagon note (not a CIM consi-gnment note, though both are CIT products). The question now is whether the user RU can transferred all or part of the conveyance of the empty wagons to a substitute carrier as defined in Articles 3 b) and 27 CIM?

Neither the CUV UR nor the GCU contain any such parallel pro-visions to Articles 3 b) and 27 CIM / 3 b) and 39 CIV. Our view is that the CUV and GCU system is differently oriented, namely towards a direct usage interest of the user RU over the wagons thus provided, whether they come directly from a keeper or indirectly from a GCU signatory prior user as defined in Article 27 GCU, which talks of a “keeper or a previous user” in relation to the user RU. Under the CUV and the GCU, therefore, the focal point of the contract of use is the use of the wagons handed over empty. In the case of a prior user RU, this is embodied in the direct relationship between the user and keeper, although this legal relationship cannot be considered equivalent to a contract of subcontracted carriage such as may be concluded with a substitute carrier.
 

Erik.Evtimov(at)cit-rail.org / Original : DE / 2019-05-10

The transit period for every contract of carriage of goods by rail for reward between the place of taking over of the goods and the place designated for delivery, provided they are situated in two different COTIF Member States (Article 1 § 1 CIM), will be agreed in accordance with Article 16 § 1 CIM between the consignor and the carrier or, in the absence of an agreement, applied ex lege in accordance with Article 16 §§ 2-4 CIM (see CIT-Info 1/2015, p. 9). Article 3 lit. a) CIM postulates that the term “carrier“ is understood to mean both the contractual carrier with whom the consignor has concluded the contract of carriage in accordance with CIM UR and the successive carrier who has become a party to this contract post factum.

The logical question that follows from the scheme of the CIM UR arises in relation to the obligation of the substitute carrier who has not concluded the contract of carriage with the consignor to comply with the maximum transit periods [Article 3 lit. b) in conjunction with Article 27 CIM]. If loss or damage results from the transit time being exceeded, then, in accordance with Article 23 § 1 and in conjunction with Article 33 § 1 CIM, the contractual carrier is required to pay compensation not exceeding four times the carriage charge. In our opinion, it is obvious that, if the substitute carrier complies with the maximum transit period for that part of the carriage he himself performs, this is contractually outside the scope of the CIM UR and therefore a settlement of the issue is legally necessary. Although this bilateral contract is not organised with the CIM consignment note itself, the contractual carrier would be well advised to acquaint the substitute carrier with the information in Box 7 of the CIM consignment note on the agreed maximum transit time, since otherwise, in his ignorance, it can easily result in him exceeding the transit time for the entire carriage. Ultimately, a timely agreement on the carriage delivery time between the contractual carrier and the substitute carrier as part of the total maximum transit period is in the contractual carrier’s own interest, since he is responsible for the entire carriage and for complying with the total maximum transit period – see Article 27 § 1 in fine CIM. This obligation may be included as a legal provision in a bilateral contract between the contractual carrier and the substitute carrier in accordance with the CIM UR or the national law applicable in the place where the contract of carriage is concluded.

erik.evtimov(at)cit-rail.org / Original: DE / 2018-11-12

Is it legally possible to conclude a contractual agreement with the substitute carrier on the application of the Agreement concerning the Relationships between Carriers in respect of International Freight Traffic by Rail (AIM)?

Substitute carrier in accordance with the CIM UR and the GTC sub-contract of the CIT

A substitute carrier, in accordance with Article 3 lit. b) CIM and Item 2 of the GTC sub-contract of the CIT, is defined as a carrier who has not concluded the contract of carriage with the consignor, but to whom the carrier has entrusted the performance of the rail carriage in total or in part. The party to the contract for this internal legal relationship with the substitute carrier is, on the one hand, the contractual carrier with whom the consignor has concluded the contract of carriage in accordance with the CIM Uniform Rules or a successive carrier who is liable on the basis of that contract [(Article 3 lit. a)].

The carrier who has concluded the contract with the consignor can make use of one or more substitute carriers (sub-contractors) for the actual performance of the rail carriage. The substitute carrier or carriers have not entered into a contractual commitment either with the consignor or with the consignee. The contractual carrier or the substitute carrier is liable to the consignor and the consignee for the total or partial loss of or damage to the goods and for the transit period being exceeded in respect of the entire carriage (Article 23 § 1 in conjunction with Article 27 § 1 CIM) from the time of taking over of the goods to the time of delivery. Furthermore, all provisions governing the liability of the contractual or successive carrier also apply to the liability of the substitute carrier (see Article 27 §§ 2-5 CIM).

Paragraph 6 of Article 27 CIM also states that any rights of recourse that may exist between the carrier and the substitute carrier remain unprejudiced. The internal relationship based on rights of recourse that exists between the contractual and/or the successive carrier, on the one hand, and the substitute carrier on the other is ex lege determined by the CIM’s guiding principle of freedom of contract.

Standardised invoicing and sharing of paid compensation in accordance with the CIM UR

The basic principle of freedom of contract is taken up again in item 1.4 AIM and postulates as a lex specialis that a substitute carrier may also conclude a contractual agreement for his internal relationship with the substitute carrier based on the AIM. As a basic principle, the AIM governs the relationships between carriers, which are CIT-members (Item 1.10 AIM) and contains uniform rules on the invoicing and sharing of compensation. Its purpose therefore is to permit simple, rapid and economic processing of international rail freight traffic (see the Preamble of the AIM).

This possible agreement is covered completely by Article 52 CIM, in accordance with which the carriers - and this applies to all carriers in their relationships with each other - are free to reach agreements on rights of recourse (Article 52 in conjunction with Article 27 § 6 CIM).

Links: The forms available for download on the CIT’s website designed to simplify the completion and distribution of invoices among the members of the CIT on the basis of the AIM: http://www.cit-rail.org/de/gueterverkehr/formulare/

Erik.Evtimov(at)cit-rail.org / Original : DE / 2016-09-01

For a cross-border carriage of goods, the successive carriers agree to exceed the limits of liability as stipulated in the CIM Uniform Rules (CIM UR).

Are they bound by the limit of liability as stipulated in the CIM UR or can they agree among themselves on an increased limit of liability? How do they allocate liability among themselves?

The CIM UR in Article 23 et seq. governs the carrier’s liability during the period between taking over the goods and delivering the goods. The maximum limit of this causal liability of the carrier with respect to the customer in the event of total or partial loss of the goods is specified at SDR 17 (approx. €23) per missing kilogram of gross mass (Article 30 § 2 CIM) and in the event of damage at a percentage of the loss of value of the goods noted at the place of destination (Art. 32 § 1 CIM). In accordance with Article 5 CIM, the carrier is permitted to extend his liability and his obligations as stipulated in the CIM UR.

In the relations between the successive carriers, Item 23 of the GTC “joint contract“ in the implementation of the CIM UR governs two specific cases:

i) Item 23(1) specifies the general cases (lex generalis) regarding compensation in accordance with CIM UR - Article 30 § 2 CIM in the event of loss, Article 32 § 1 CIM in the event of damage or Article 33 § 1 CIM in the event exceeding the transit period - in the internal relations between the carriers;

ii) Item 23(2) on the other hand offers successive carriers as a special case (lex specialis) the possibility of specifying the maximum amount of the compensation to be paid in the case of an extension of liability.

Article 23 et seq. CIM and Article 5 CIM thus govern the external relations between the customer and the carrier as parties to the contract of carriage. By contrast, the GTC “joint contract“ of the CIT govern the internal relations between the successive carriers themselves and are applied only when they have been agreed between several carriers and have been included in the individual contracts of carriage (opting-in).

erik.evtimov(at)cit-rail.org / Original: DE / 2014-09-10

In a marshalling yard, a railway undertaking shunts and marshals wagons forming part of another carrier’s trains. A payment is made for this service.

What status does that railway undertaking have? Should that railway undertaking be included on the consignment note? Is it liable for loss and damage caused to the goods during the shunting and marshalling activities? Should the work which that railway undertaking does be subject to a contract?

A railway undertaking which undertakes shunting and marshalling of wagons forming part of another carrier’s trains on his account must be considered to be a person whose services the carrier makes use of for the performance of the carriage. The railway undertaking is therefore an auxiliary to the carrier within the meaning of a person for whom the carrier is liable in Article 40 CIM.

Only undertakings which act as a successive carriers or substitute carriers need to be entered in box 57 of the consignment note (see the explanatory notes in Appendix 2 to the GLV-CIM for box 57). Auxiliaries within the meaning of a person for whom the carrier is liable in Article 40 CIM thus need not be included on the consignment note.

In the event of loss and damage caused to the goods during the shunting and marshalling activities undertaken by the railway undertaking, the railway undertaking is liable to the carrier on the basis of the terms and conditions which they have agreed. In respect of liability to the customer, only the carrier is liable. Liability is on the basis of the CIM Uniform Rules (cf Article 40 CIM). Legal action in tort of course remains an option (also see Article 41 § 2 CIM).

The relationship between the carrier and the railway undertaking providing the services which he makes use of for shunting and marshalling the wagons should be governed by a contract of cooperation. The CIT has the general terms and conditions for this type of contract: General Terms and Conditions Applying to Contracts for Services for Freight Traffic (GTC provision of services) -http://www.cit-rail.org/en/marchandises/documents-contractuels/. The GTC provision of services provides that the service provider is only liable for loss and damage to the goods in transit if the carrier proves that the loss and damage was caused by a fault of the service provider or his staff (cf. point 35 of the GTC provision of services).

Carriers moving traffic subject to the CIM under the joint contract regime choose not to hand over traffic from one carrier to the next at the frontier between two countries (which is also the interface between the networks of the two infrastructure managers) but rather hand over traffic five kilometres further on, for operating reasons.

When does liability for the goods change from one carrier to the next?

There is no standard answer to this question and the issue must be left to the contractual freedom of the carriers. That is why the CIT Freight Traffic Manual is limited to saying that the point, the time and the arrangements for hand-over of consignments between carriers are fixed by agreements concluded between carriers (see working sheets 03-01 and 03-02 GTM-CIT).

Henri.Trolliet(at)cit-rail. Original: FR

May a carrier who notices that the details of the consignee on the consignment note are incorrect (consignee unknown) on handover of the consignment from another carrier refuse to accept the consignment?

Incorrect consignee details on the consignment note do not constitute grounds for refusing to accept a consignment in accordance with working sheet 03-02 of the CIT Freight Traffic Manual (GTM-CIT). The receiving carrier is not therefore entitled to refuse to accept the consignment. On the other hand, he is authorised to initiate the procedure for “circumstances preventing carriage” within the meaning of Article 20 CIM and working sheet 05-01 GTM-CIT, if it is then clear that the consignment cannot be delivered to the consignee.

Henri.Trolliet(at)cit-rail.org Original: FR / 2011-12-19

May an unsealed wagon be refused when being handed over to another carrier?

A carrier may refuse to accept a consignment on handover in the event of a “sealing irregularity” (see GTM-CIT working sheet 03-02). “Sealing irregularity” should be understood as including missing and broken seals (see GTM-CIT working sheet 05-01).

Henri.Trolliet(at)cit-rail.org Original: DE

Since COTIF 1999, the contract for the international carriage of goods by rail has been one entered into by mutual consent (Art. 6 CIM). The CIM consignment note serves as prima facie evidence of the conclusion of the contract of carriage. As such, the contract of carriage must be confirmed by a consignment note which accords with a uniform model drawn up by the international associations of carriers like CIT in agreement with the customers’ international associations and the bodies having competence for customs matters – see Art. 6 § 2 in connection with 6 § 8 CIM.

This fundamental function of the legal system of COTIF/CIM is implemented in the CIT freight products supporting CIT members and their customers giving to a great extend linguistical freedom for the completion of the CIM consignment note. In this context, the CIT “CIM Consignment Note Manual” (GLV-CIM) provides as follows for language rules in Appendix 2 Point 1 Section 1 (for the instructions of the pre-printed language versions of the consignment note)[1] and Appendix 2 Point 1 Section 2 on completing the consignment note as follows: “The consignment note is to be completed in one or more languages of which one must be either English, or French, or German. The consignor and carrier may agree alternative arrangements. For consignments subject to the RID, only the states involved in the movement may agree alternative arrangements.”

Having chosen a language or languages, all details are to be entered in that (those) language(s) and not partly in one language and partly in another. However, the consignor and the contractual carrier can agree otherwise. For consignments subject to the RID, only the states involved in the movement may agree alternative arrangements. The language rules for the CIM consignment note, as set out in the CIT freight products, have been successfully and beneficially applied since COTIF/CIM entered into force on 1 July 2006. They are transparent and provide further flexibility and freedoms for the contracting parties upon concluding a contract for the international carriage of goods by rail.

[1] The consignment note is to be printed in one or more languages of which one must be either English, or French or German. The consignor and carrier may agree alternative arrangements.

2021-06-22, EE

The cross-border carriage of goods without transport documents, such as a consignment note or other supporting documents, is possible in theory according to the principles of freedom of contract described in the 1999 CIM Uniform Rules (CIM UR). It follows therefore that the absence, irregualrity or loss of a consignment note does not affect the existence or validity of the contract, which remains subject to the CIM Uniform Rules (Article 6, § 2, second sentence, CIM). But how should the participating railways deal with the consignment in such cases? Should it be accepted or refused  by the receving carrier and sent back to the handing over carrier?

On the one hand, these discrepancies can cause serious problems for international rail freight traffic and have a lasting negative effect on its attractiveness to rail customers. On the other hand, such lapses are another reason for the flaws in international rail freight traffic, since Annex 18 (Accompanying document) based on working sheet 07-02 GTM-CIT (CIT Freight Traffic Manual) could not be used in this case. 

In this specific case, the goods in question are not surplus goods that have arrived at their destination, but goods in transit without any transport documents. As far as the procedure is concerned, it is also advisable in this case to follow the procedure described in the third indent of working sheet 07-02, GTM-CIT since, if the transport documents are missing in their entirety, copies of the CIM consignment note (duplicate) and the attached documents which would be mentioned  in field 9 of the CIM consignment note must be requested from and must be supplied by the contractual carrier – working sheet 07-02 of GTM-CIT in connection with the explanatory notes in Annex 2, field 9 of the CIM Consignment Note Manual (GLV-CIM.

erik.evtimov(at)cit-rail.org / Original: DE / 2019-08-28

In international rail transport law, wagons are considered to be unpowered vehicles travelling on their own wheels on railway lines [see Art. 2 b) CUV]. In cross-border rail traffic, the wagons may either be handed over as goods under the terms of a contract of carriage (see Art. 24 CIM), or as a means of transport under the terms of a contract of use for conveyance in accordance with the CIV UR and CIM UR (see (Art. 1 CUV).

If railway vehicles are not being used as a means of transport, they are not subject to the CUV Uniform Rules, the General Contract of Use for wagons (GCU) or the Regolamento Internazionale Carrozze in international passenger traffic (RIC); instead they are considered to be goods and are carried subject to the CIM Uniform Rules. In accordance with Art. 6 § 8 CIM, the rules governing the organisation of cross-border movements of railway vehicles running as goods on their own wheels are agreed between international carriers’ associations such as CIT and international customer associations and the bodies in charge of customs matters in each member state.

As such, the most used CIT documents are the CIM Consignment note manual (GLV-CIM), especially the comments on fields 21 and 30 in Appendix 1 for the electronic consignment note and Appendix 2 for the paper consignment note, and the Freight traffic manual (GTM-CIT), point 3, last section, for the operational organisation of cross-border movements of rail vehicles travelling as freight on their own wheels.

erik.evtimov(at)cit-rail.org / Original: DE / 2018-12-20

COTIF/CIM presumes legally two parties to the contract of carriage of goods for reward by rail (Art. 1 § 1 CIM). In the CIM consignment note as evidence of the contract of carriage, this is fixed in box 1 for the consignor and box 58a for the contractual carrier as parties to the contract of carriage. The consignee is in principle not a party to the contract of carriage. 

Based on the national law which is a principle of Roman law across Europe (see article 8 § 2 COTIF) an economic entity with legal personality cannot contract with itself. In this sense, consignor and contractual carrier should be two different legal entities with their own budget and administrative structure. 

Regarding Article 6 § 3 first sentence in connection with § 2 second sentence CIM,  the transport contract needs two parties as well. In this case two legal entities definitively conclude the contract of carriage confirmed by the consignment note, as prescribed in article 12 § 1 CIM.

erik.evtimov(at)cit-rail.org / Original: DE/EN / 2018-07-12

Is information entered in the boxes of the electronic CIM consignment note with a code final or are group codes permissible? What information can be provided in this way by the consignor?

The provisions of Article 7 CIM relating to the content of the international rail transport document ex lege the CIM consignment note are based largely on the principle of contractual freedom and express the will of the parties to the contract of carriage, namely the consignor and the carrier [in casu contractual carrier in accordance with Article 3 a) CIM] and in accordance with Article 6 § 2 CIM. Article 7 CIM is divided into three sections in a similar way to Article 6 CMR(1) and, in accordance with § 1 of which, the consignment note must contain sixteen mandatory particulars; in § 2 there are another seven conditional particulars and § 3 contains the legal basis for the optional particulars to be entered on the CIM international consignment note.

For this reason, Article 6 § 2 postulates that “the contract of carriage must be confirmed by a consignment note which accords with a uniform model“, whereby in accordance with Article 6 § 8 CIM, the model in turn shall be established by the international associations of carriers (such as the CIT) in agreement with the customers’ international associations and the national and international bodies having competence for customs matters. This is quite clearly aimed at both a private law and the commercial nature of the international consignment note, in addition to its significance with respect to transport law.

As a result of the progress now being made in the digitisation of transport documents, the need to structure the data using codes is becoming increasingly evident. The consignors’ declarations, for example, are documented in Box 7 on the CIM consignment note. The successive use of codes would offer a more technically enhanced way of structuring Box 7 of the CIM consignment note in detail, which in future would simplify the completion of the electronic CIM consignment note significantly for the international exchange of consignment note data.

Structuring commercial consignment note data is therefore to be the technical basis and also the solution for the work carried out by the CIT. When using Codes 1, 2, 6, 7, 8 and 24, for example, in Box 7 of the CIM consignment note, the codes are to be indicated together with their meaning. When other codes are used, only the code that is to be supplemented with the appropriate information is to be indicated, as is the case with Group code 16, for which other information can be entered as a way of including an additional declaration by the consignor. This is consistent with provision of Article 7 § 3 CIM for the optional particulars to be entered on the electronic CIM consignment note.

Convention on the Contract for the International Carriage of Goods by Road (CMR)

erik.evtimov(at)cit-rail.org / Original : DE / 2017-08-18

If several carriers conclude a contract of carriage with a consignor, does this mean that all contractual partners of the carrier are contractual carriers? Does this also apply if one person simultaneously acts on behalf of the other carriers? Are several contractual carriers entered accordingly on the CIM consignment note?

Contractual carrier in accordance with the CIM UR

The legal definition provided by the CIM UR as specified in Article 3 letter a) unequivocally describes the contractual carrier with whom the consignor has concluded the contract of carriage pursuant to the CIM Uniform Rules. The liability of the contractual carrier thus applies jointly and severally with the successive carriers from the taking over of the goods to their delivery (Article 23 § 1 CIM). For the substance of the contract of carriage, Article 6 § 1 CIM postulates initially that the carrier undertakes to carry the goods for reward to the place of destination and is required to deliver them there to the consignee.

These regulatory provisions clearly indicate that the contract of carriage is concluded in an external relationship between a contractual carrier on the one hand and the consignor as a party to the contract of carriage on the other, and that it should be incorporated as such in a consignment note (Art. 6 §§ 2-3 CIM).

Entering details of the contractual carrier on the CIM consignment note

Accordingly, and complying with the principle expressed in Article 6 § 8 CIM, the CIT has foreseen for the required details of the contract of carriage to be included in Box 58 of the consignment note according to the explanatory notes in Appendix 2 of the GLV-CIM for CIT members and their customers. According to the explanatory notes, Box 58 indicates this in letter a) with “Contractual carrier“. This is given in the singular in the GLV-CIM, since, in accordance with Article 6 § 3 CIM, only two parties to the contract of carriage are involved for the external relationship – the consignor on the one hand and the contractual carrier on the other, and for two additional considerations:

• On the one hand, Box 57 is entitled “Other carriers“ (plural), followed by two status categories – Code 1 = ”successive carrier“ (singular again), or alternatively Code 2 = ”substitute carrier“ (singular again). This box is to be completed by the carrier at departure, but only if carriers other than the contractual carrier participate in the carriage.
• On the other hand, in accordance with the explanatory notes to Box 58 letter b), only the contractual carrier (singular again) having his registered office in the EU or in another contracting party of the EU-EFTA Convention on a common transit procedure may act as the principal of the simplified transit movement.

To sum up, CIT documents used as implementing provisions for the relevant provisions of the CIM UR and in particular the CIM Consignment Note Manual (GLV-CIM) are based on the assumption of a single contractual carrier. This is all the more important in view of the importance of customs and technical safety aspects for the international carriage of goods by rail.

Erik.Evtimo(at)cit-rail.org Original: DE

Who is responsible for providing details of the value of the goods? How is the value of the goods declared in the consignment note? How is the declaration of value to be handled for different goods?

Declaration of the value of goods in international rail transport law

The basic principle of COTIF/CIM 1999 is the freedom of contract. Article 34 CIM enables the consignor to agree on a maximum value with the carrier when the amount exceeds the limit of liability provided for in Article 32(2), namely 17 SDR per kg, and to enter this value in Box 26 of the CIM consignment note. The person authorised to make this declaration, in addition to the consignor, is the carrier who, until evidence is provided to the contrary, has acted on behalf of the consignor (Article 8(2) CIM). On the instructions of the consignor, this declaration can be changed at a later date by the contractual carrier or by one of the successive carriers (Article 18(1) CIM in conjunction with the comments in Appendix 2 GLV-CIM on Box 26 of the consignment note).

This objective legal view of the basic principle of freedom of contract underlines the standards laid down in Article 5 third sentence, in accordance with which a carrier may assume greater liability and more burdensome obligations for the benefit of the railway’s customers.

Declaration of value for different goods

By concluding a contract of international carriage of goods by rail, the carrier, in accordance with Article 6(1) CIM, undertakes to carry goods for reward between places situated in different COTIF Member States. The declaration of the value of the goods is the key entry when completing the consignment note as confirmation of the contract of carriage (Article 6 § 2 CIM). An interesting question relates to the value of the goods when different goods are carried by rail – in containers, for example. What value is to be entered in this case in Box 26 of the CIM consignment note?

What is primarily of significance for rail transport law is the fact that the container is to be understood as packaging and may not be considered prima facie as part of the contract of carriage. If different types of goods, in accordance with the WCO Harmonised System (WCO HS)[1], are carried by rail in a container, the consignor enters the value of the grouped goods (NHM[2] Code 9902) in Box 26 of the consignment note.

Erik.Evtimov(at)cit-rail.org / Original : DE / 2015-11-02

[1] World Customs Organisation Harmonised System Code for commercial items (goods).

[2] Harmonised Commodity Code of the UIC, see www.uic.org. In such a case, the consignor in turn is required to provide the necessary customs declarations for the contents of the goods for which he is responsible.

With regard to the international carriage of goods in open wagons, the carrier is relieved of liability if the type of carriage is specified in the carrier's General Terms and Conditions (GTC), or this has been expressly agreed and entered in the consignment note.

Where is the entry to be made? What is the importance of this entry in the consignment note for the carrier?

There are two issues associated with this situation:

i) Exemption from liability in accordance with Article 23 § 3 (a) CIM Uniform Rules:

According to Article 23 CIM, the carrier is liable to the customer between the time of taking over of the goods and the time of delivery. In addition to the so-called non-preferential reasons for exemption in accordance with § 2 of Article 23 CIM(1), § 3 provides for a catalogue of preferential or pre-emptive reasons of exemption for the carrier. This catalogue included in sub-items (a) to (g) is of a casuistic nature and, with regard to the carrier's exemption, results from the assumption of special risks (in casu carriage in open wagons). It is a known fact that this has been taken from Article 17 CMR (with the exception of the railway-specific sub-item (g))(2). The conclusion regarding carriage in open wagons on cross-border rail freight services on the other hand has been taken from the wagon number in Box 18 of the CIM consignment note, which also provides information on the wagon type. According to Professor Freise, wagons covered with tarpaulin or enveloped in sheeting are also considered to be open wagons – this is different from the German Commercial Code (HGB) or the original standard article 17, para. 4 (a) CMR for the international carriage of goods by road(3).

ii) Purpose of the entry in CIM consignment note

In addition to carriage in open wagons in accordance with the GTC of the carrier, Article 23 § 3 (a) CIM also provides for the agreement to carry out such shipments and the corresponding entry in the consignment note as evidence of the contract of carriage. The latter is only meant as an alternative lex specialis to the GTC of the carrier, which - to all intents and purposes - are currently the norm and regulate all aspects of such shipments.

Since the 1999 COTIF revision, the consignment note has been regarded as evidence of a contract of carriage (consensual contract) and is not a constitutive element of the contract, as was the case with COTIF 1980 (formal contract). The absence, irregularity or loss of the consignment note shall not affect the existence or the validity of the contract of carriage (Article 6 § 2 CIM). The principle of the evidence of the contract has demonstrated its value in practice, in particular with regard to safeguarding international agreements between the consignor and contractual carrier as parties to the contract of carriage. This also applies to the latter, since international agreements are less clear-cut than national law and, for this reason, the entry in the CIM consignment note will certainly be referred to.

With regard to the actual entry of the agreement in the consignment note, Box 7 "Consignor's declarations“, in particular is relevant (Appendix 2 of the CIT’s "CIM Consignment Note Manual“ (GLV-CIM). If the carrier raises no objection to this, then the consignor's unilateral declaration in the consignment note is considered to be a binding agreement with the carrier.

Erik.Evtimov(at)cit-rail.org / Original : DE / 2014-10-22

1. Article 23 § 2 CIM: "The carrier shall be relieved of this liability to the extent that the loss or damage or the exceeding of the transit period was caused by the fault of the person entitled, by an order given by the person entitled other than as a result of the fault of the carrier, by an inherent defect in the goods (decay, wastage, etc.) or by circumstances which the carrier could not avoid and the consequences of which he was unable to prevent.“

2. See R. Freise, Munich Commentary to the (German) Commercial Code, Vol. 7, Law of Transport, Munich 2014, Article 23 CIM, marginal note 27, p. 1996. My thanks to Prof. Freise for kindly forwarding the new 3rd edition of the Munich Commentary on International Rail Transport, 1891 et seqq.

3. ibid., marginal note 31, p. 1997

In accordance with Article 6 § 6 CIM, a consignment note must be made out for each consignment. In the absence of a contrary agreement between the consignor and the car­rier, a consignment note may not relate to more than one wagon load.

What are the exceptions to this principle of one wagon ‒ one consignment note and how are they managed?

The exceptions to this rule are, for example, one consign­ment note for a full trainload, a group of wagons or an intermodal transport unit. These exceptions must be defined in the customer agreement (see the commentary to point 5 of the Customer Agreement Checklist).

If a consignment note is used for a full trainload or a group of wagons, a wagon list must be attached to the consign­ment note (see working sheet 02-02 GTM-CIT). The arrangements for using wagon lists and the information they should contain must be agreed in the customer agreement (see Appendix 23 GTM-CIT).

In order to make these provisions more transparent, the CIM Working Group has just agreed a proposal to transfer these provisions on the use of wagon lists from the GTM-CIT and GTW-CIT to the GLV-CIM and GLW-CUV, since they also affect customers. The proposals still have to be approved by the CIM Committee, approval at its next meeting in March 2014 is anticipated.

Henri.Trolliet(at)cit-rail.org / Original : FR / 2013-07-25

Again and again, the CIT General Secretariat is asked which carrier is to be shown on the consignment note and where. There is particular interest in when and how carriers who act on behalf of other carriers are to be shown.

The answer is relatively simple if we keep the various categories of carrier in mind:

• Firstly, there is the contractual carrier (Article 3 a) CIM) with whom the customer concludes the contract of carriage. The contractual carrier doesn’t necessarily have to be the first carrier in the chain of carriers however. Indeed, it is even possible that the contractual carrier takes no part in the carriage at all but assigns his responsibilities to other carriers.

• Secondly, there is the successive carrier (Article 3 a) CIM) who actually performs part of the carriage as a member of the chain of carriers. Together with the contractual carrier he is party to the contract of carriage with the customer and is liable to the customer for the performance of the whole contract of carriage. In legal terms, the first carrier in a chain of carriers is also a successive carrier.

• Thirdly, there is the substitute carrier (Article 3 b) CIM) to whom the contractual and/or successive carrier have entrusted the carriage in whole or in part. The substitute carrier is not a party to the contract of carriage with the customer and hence is not liable for the whole carriage but only for his own performance. Unfortunately, the term in German “ausführender Beförderer” [implementing carrier] is unfortunate, indeed misleading, the French and the English terms “transporteur substituté” and “substitute carrier” provide a better description.

• Lastly, there is the auxiliary (Article 40 CIM) to whom the contractual and/or successive carrier or substitute carrier entrust performance of the carriage without that being obvious. In these cases, there is no (contractual) liability to the customer, only the carrier who commissioned the auxiliary is liable in contract and in fact exclusively liable.

Logical differentiation between the boxes on the consignment note follows from this summary of the types of carrier:

The contractual carrier is always shown in box 58 of the CIM consignment note no matter whether he is also a (successive) carrier and what role he plays in the chain of carriers.

All the successive carriers are shown in box 57 of the CIM consignment note (with the exception of the carrier who is the contractual carrier) together with all the substitute carriers.

Carriers who are auxiliaries are not shown in any of the boxes of the CIM consignment note.

Thomas.Leimgruber(at)cit-rail.org Original: DE

How should the distances to be used for calculating carriage charges be determined, in particular for the points at which the consignment is taken over and delivered?

The explanatory notes for the use of the CIM consignment note under the CIM Uniform Rules 1980 provided for the tariff distance between the stations and frontier points corresponding to the beginning and end of the charging section to be entered on the consignment note. An amended version of this text was adopted for the explanatory notes to box 76 in Appendix 2 to the GLV-CIM. The reference was amended just to refer to “points” rather than “frontier points” to take account of two new factors:

- the points at which consignments are handed over between carriers may be within a country (and therefore no longer just at a frontier) and these hand-over points may be the points that determine the beginning and end of a charging section;

- likewise, the points at which consignments are taken over and delivered rather than stations may be the points that determine the beginning or the end of a charging section.

These provisions do not, however, fix the way in which the tariff distances between the stations or points corresponding to the beginning and end of a charging section are calculated. That issue is left to railway undertakings to decide. Railway undertakings members of the UIC have agreed to link every point at which goods are taken over or delivered with a station. They have also agreed that the distances defined for that station are also to be used for the points of taking over or delivery linked to it – see UIC leaflet 219 O, point 1.1 paragraph 4.

Henri.Trolliet(at)cit-rail.org Original: FR

Which costs (including ancillary charges) may be agreed as being suitable to be entered on a CIM consignment note and to what extent do they then need to be checked.

For international freight traffic by rail, Article 10 § 1 CIM provides that “unless otherwise agreed between the consignor and the carrier, the charges (the carriage charge, ancillary charges shall be paid by the consignor” [Note that the English language CIM has serious mistranslations in this article]. To clarify how this provision is to be implemented, Article 8.3 of the General Terms and Conditions of Carriage for International Freight Traffic by Rail (GTC-CIM) specifies that “an entry in the consignment note in accordance with the GLV-CIM shall indicate who is responsible for which charges”. Point 5.2 of the CIM Consignment Manual (GLV-CIM) lists the options in detail.

The second sentence of Article 8.3 GTC-CIM also provides that the Customer Agreement may specify which of the pay- ment instructions listed in Article 5.2 GTC-CIM must be used and/or if further options (lists of charges in the tariff applicable, for example) are permitted. This rule is subsidiary and must be interpreted as supplementing the first sentence of Article 8.3 GTC-CIM.

Erik.Evtimov(at)cit-rail.org Original: DE

How is information on dangerous goods entered in the CIM/SMGS consignment note? Who is responsible for making the entry? Where can information on dangerous goods in accordance with RID (Appendix C to COTIF) and Appendix 2 SMGS be obtained?

For the CIM consignment note, the description of the type and packaging of dangerous goods is to be entered in accordance with Article 7 h) CIM and in line with description given in the Regulations concerning the International Carriage of Dangerous Goods by Rail (RID). The complete version of RID 2015 published by OTIF can be accessed from the CIT website. The consignor enters the descriptions and is liable for the information prescribed in RID in accordance with Article 8 §1 CIM. Based on Working sheet 02-02 of the GTM-CIT, the carrier examines the consignment note, paying attention to the specific requirements for dangerous goods (1.4.2.2 RID and UIC Leaflet 471-3).

For the CIM/SMGS consignment note, the provisions of the CIM UR and the RID, in addition to those of Appendix 2 to the SMGS in accordance with Item 12.1 of the GLV-CIM/SMGS and the new Appendix 6 to the SMGS, are decisive. For the details to be entered in the consignment note, the consignor remains correspondingly liable (Article 8 §1 CIM and Article 16 § 1 SMGS). Item 16 of the “CIM/SMGS Consignment Note Manual“ states that dangerous goods are only accepted for carriage if they satisfy the provisions of the RID and SMGS Appendix 2. The respective footnote points out that the forwarding carrier is to supply the information required on the applicable RID provisions and on SMGS Appendix 2.

The consignor (customer/exporter) can request that entry of the details on the dangerous goods in the CIM/SMGS consignment note in accordance with SMGS Appendix 2 be made by the SMGS railways at the reconsignment point. The addresses of the relevant organisations are included in Appendix 4 to the GLV-CIM/SMGS and Appendix 6 to the SMGS and on the CIT’s website.

Erik.Evtimov(at)cit-rail.org Original DE
2015-08-28

Who is responsible for handling claims for CIM/SMGS traffic?

In principle, submitting and handling claims for damages for total or partial loss of or damage to goods consigned with a CIM/SMGS consignment note are governed by the provisions of Articles 43-45 CIM and Article 29 SMGS.

These basic principles are nevertheless supplemented by specific provisions in point 12.3 of the GLV CIM/SMGS and in Appendix 22 SMGS.

Claims submitted in the area in which the CIM applies are to be sent to the competent carrier in accordance with the CIM Uniform Rules. If the competent carrier establishes that the cause of the loss or damage did not lie or did not only lie within the area in which the CIM contract of carriage applies, he is to assess the claim in terms of liability within the CIM area and notify the customer of his decision. For subsequent handling in the area in which the SMGS applies, he is to forward the claim, including all the documentation submitted, to the competent SMGS forwarding or destination railway and notify the customer that he has done so. As soon as the competent carrier has received the result of the handling of the claim from the SMGS railway he is to inform the customer of the final outcome of the handling of his claim.

An analogous process is adopted for claims submitted in the area in which the SMGS applies.

The inclusion of the addresses of claims departments for CIM/SMGS traffic in Appendix 9 to the GLV CIM/SMGS and Appendix 22 to the SMGS ensures that claims handling is transparent for customers.

Erik.Evtimov(at)cit-rail.org Original DE
2011-07-13

For a cross-border carriage of parcels by rail from Beijing to Bern, the question has been raised as to how this is to be organised. Can the common CIM/SMGS consignment note be used in this case?

A quick look into the unimodal conventions of the 20th century for rail and road transport makes it absolutely clear that the carriage of such articles was the prerogative of the postal authorities ((Article 4(b)) COTIF/CIM 1980 and SMGS 1951, as of 1 September 2011 Article 4(1)(2) in accordance with Appendix 1 or for carriage by road in accordance with CMR 1956 Article 1(4)(a). The priority of application given to the Constitution of the Universal Postal Union of 1964 has now been removed ex lege from the scope of application of the CMR Convention.

The international carriage of goods by rail – this also includes COTIF/CIM 1999 (in force since 1 July 2006) and the revised SMGS (in force since 1 July 2015) – in view of the booming e-commerce, provide the possibility[1] in the 21st century of transporting goods without limitation –including the carriage of parcels within the scope of application of the CIM Uniform Rules (CIM UR – Appendix B to COTIF) and the SMGS, since the monopoly of the postal authorities to carry parcels has now been lifted[2]. Providing the consignor, consignee and carrier so agree, the CIM UR also provide the possibility of organising a cross-border carriage under the CIM UR in which only the place of handing over or taking over of the goods is situated in a COTIF Member State (in casu Bern).

The CIM/SMGS Consignment Note Manual additionally offers CIT members and SMGS participants who are included in Appendix 1 the possibility of using standard transport documents, providing such an arrangement has been agreed on between the customer and the carrier, and between the carriers themselves. The use of a CIM/SMGS consignment note is regarded as an agreement. In the SMGS area, the provisions of this manual apply only to traffic axes determined by those SMGS participants who use this manual (Item 4 of the GLV-CIM/SMGS and Appendix 6 of the SMGS that came into force on 1 July 2015).

2015-03-29, EE

[1] According to the February 2015 issue of DVZ, the German newspaper for the transport and industry, the Chinese online commerce company Alibaba reported a 40% increase in revenue year on year 2013 – 2014 to US$4.2 billion. Online shoppers in Europe, on the other hand, triggered 3.7 billion parcel deliveries in 2013, see ITJ February 2015 issue, p. 16.

[2] See also the article on the carriage of express parcels by H. Trolliet, published in CIT-Info 3/2012, p. 11.

Do the CIT products contain provisions describing how wagons are to be included and indicated in the wagon list? Are the wagons mentioned in the wagon list  listed in the same order as in the train in reality?

Article 7 § 1 lit. j) of the CIM Uniform Rules provides that, in wagonload traffic, the wagon number must mandatorily be indicated in the consignment note, while § 2 lit. f) provides that the agreed route is conditional. As such, there are no specific stipulations on this question in the CIT freight products, since the wagon list provided for in GLV-CIM section 10, whose detailed content is described in Appendix 5, is considered a component part of the CIM consignment note; to that extent, its task is “merely” to list the wagons belonging to the associated contract of carriage. Furthermore, the wagon list may cover either a block train or a wagon group which is just one part of a train from a production standpoint.

For production purposes, therefore, the details of the wagon list are communicated by the customer with the order:

- electronically or

- as a paper list.

Carriers have no influence over the system the customer uses to list or communicate this information (e.g. listing by terminal cut-off time, weight, etc.). Appendix 5, point 4.2 to GLV-CIM gives another important indication in this regard: “For those consignments which pass over the customs territory of the European Union or the territory on which the common transit procedure is applied, separate wagon lists must be made out for community goods and non-community goods.”

Alongside this there is also a production wagon list which is compiled by the RU that forms the train, the structure and content of which is determined by the infrastructure manager (IM) in most countries. This production wagon list documents the train formation and the order of the wagons therein, as well as other information relevant to the train run such as the brake position, braked weight, position of individual wagons, coupling, etc.

Furthermore, in the «CIM/SMGS consignment note» manual (GLV-CIM/SMGS), the corresponding document to the CIM/SMGS consignment note is named properly as a «wagon list» that forms an integral part of Appendices 7.1 and 7.2 to the GLV-CIM/SMGS. 

Since COTIF 1999, the Convention concerning International Carriage of Goods by Rail has been a consensual contract by which the rail freight carrier undertakes to carry the goods for reward to the place of destination and to deliver them there to the consignee (Article 6 § 1 CIM). But what is the precise route to be taken between taking over the goods and delivering them?

According to Article 7 § 2 (f) CIM, the agreed route is to be entered in the international CIM consignment note, with the contract of carriage by rail confirmed by a consignment note which accords with a uniform model (specified by the CIT) - see Article 6 § 2, first sentence. The choice of route is based as much as possible on the route proposed by the consignor or, if no such proposal has been made, on the route most favourable to the consignor, taking into account the type of goods, speed and cost of shipment. Details of the actual route are still indicated by the carrier using codes in accordance with UIC Leaflet 920-5. Details may be included as a supplement in plain text. Where there have been circumstances preventing carriage, the new route is to be indicated as necessary with the endorsement "diverted because of ...".

The information on the route entered in the CIM consignment note, box 50, is also used for completing the wagon note in practice. The information which is to be included on the wagon label in accordance with model CIT 14 in the CIT Freight Traffic Manual (GTM-CIT) is governed by the agreements between the carriers. If such labels are affixed by the consignor under an agreement with the carrier, they are to be checked by the carriers. The information in box 50 for border exit points is to be entered in the order in which the borders are crossed:

• The first two item for the country.
• The third and fourth items for the border code

2020-12

Erik Evtimov

According to the legal definition in Article 23 § 1 CIM, an international contract of carriage of goods by rail is valid from the taking over of the goods until the time of delivery. But what are the legal consequences if the goods cannot be delivered?

This is a case of circumstances preventing delivery in accordance with Article 21 § 1 CIM, which specifies that "When circumstances prevent delivery, the carrier must without delay inform the consignor and ask him for instructions (...)". According to the provisions of Article 21 CIM, it is not necessary for the goods to have arrived at the delivery point. In this regard, Paragraph 11.2 of the GTC-CIM specifies that " Agreements made between the consignee and the carrier who delivers the goods under the contract of carriage shall determine delivery of the goods, the servicing of the terminal, of the unloading point, or of the private siding at the destination point. By default, delivery shall take place in accordance with the provisions in force at the delivery point."

It is very important, therefore, that the carrier obtain instructions in good time from the consignor as to what further action is to be taken. The notification of circumstances preventing delivery and the consignor's instructions are described in detail in the CIT’s CIM Consignment Note Manual (GLV-CIM) Appendix 9. The procedure has been further standardised with the CIT9 uniform model document; for the purpose of the information exchange optimization CIT has created a pdf form application.

This means that, as far as the law is concerned, the carrier has acted in bona fide and is entitled to recover any costs he has incurred relating to the circumstances preventing delivery. This in turn is in accordance with Article 22 § 1 CIM, so that, particularly in the event that the consignor fails to give instructions or fails to give them in good time, the carrier is protected ex lege in accordance with Article 22 § 1 c) CIM (disregard of the circumstances preventing delivery by the consignor). In accordance with § 2, the bona fide carrier may unload the goods and then, in accordance with § 3, sell them. If the proceeds of sale are less than the costs, the consignor must pay the difference – cf. Article 22 § 4 CIM. The details of how the costs are charged are again described in detail for CIT members in the GTM-CIT Working Sheet 08-03.

Since the total revision of international rail transport law within the framework of COTIF/CIM in 1999, it has now been made clear in Article 6 of CIM that the contract of carriage for the international carriage of goods by rail is a consensual and not a real contract. The second sentence of Article 6 § 1 CIM states that the transport document (the CIM consignment note) is only a proof of the contract and not essential for its existence.

But can an existing contract of carriage be amended subsequently?

The clear answer is to be found in the provisions of Article 18 § 1 CIM in conjunction with Article 18 § 3 CIM: in the absence of an agreement to the contrary in favour of the consignor, the right to amend the contract of carriage benefits the consignee from the issuance of the CIM consignment note. Furthermore, the timing of issuing the CIM consignment note has substantial consequences concerning the existence of the contract of carriage. The CIT has recognised the importance and organisation of the rights to dispose for the parties to the contract of carriage since the new COTIF/CIM law came into force, and has regulated them uniformly for CIT members.

Accordingly, Appendix CIT7 in the CIM consignment note manual (GLV-CIM), regulates the transfer of rights to dispose by the consignor in accordance with Article 18 § 1 CIM or the consignee in the constellation of Article 18 § 3 CIM, which has a very important disciplinary function for the validity of the contract of carriage over long distances and across several COTIF member states. Moreover, the CIT has secured and standardised additional internal communication possibilities for member railways with the model CIT22 GTM-CIT (notification of corrections) in order to ensure that corrections to the CIM consignment note in accordance with working sheet 12 of the CIT Freight Traffic Manual (GTM-CIT) are made in the internal relationship between the participating railways, which continues to offer significant cost savings.

Erik.Evtimov(at)cit-rail.org / Original: DE / 2020-06-30

Can Form CIT14, complete with pictograms, be created directly from the customer information system? Is the carrier’s permission required to do this?

After accepting the goods for carriage, the carrier becomes liable for any subsequent loss and damage to the goods (Article 23 § 1 CIM). The goods are considered as having been accepted for carriage when the consignor hands them over to the carrier at the agreed forwarding point and at the agreed time and the carrier has accordingly accepted the goods for carriage (Item 11 GTC-CIM).

The correct handling of the goods accepted for carriage is ensured, for example, by means of the wagon label, which is to be created at the latest before the wagon moves and is to comply with the specimen shown in Appendix 14 GTM-CIT (CIT14). The carriers may agree amongst themselves whether to attach Form CIT 14 or not.

If, however, the wagon label is to be attached by the carrier as a result of an agreement with the consignor, the information included and/or required in Form CIT 14, is to be checked by the carrier on departure (Working sheet 02-05, fourth dash and associated Appendix 14 GTM-CIT).

Erik.Evtimov(at)cit-rail.org / Original: DE / 2015-06-30

In the case of international carriage of goods, the question arises as to when the contract of carriage by rail starts and ends? How is the carrier’s liability settled? Where will the goods be taken over and where will they be delivered?

Start of the contract:

Since the last revision of COTIF 1999, the Contract of International Carriage of Goods by Rail has been regarded as a consensual contract under international law (Article 6 § 1 CIM)1. Accordingly, it is subject to the CIM Uniform Rules (CIM UR) for the carriage of goods by rail for reward between the place of taking over of the goods and the place designated for delivery, when they are situated in two different COTIF Member States, even in the event of the absence, irregularity or loss of the consignment note (Article 6 § 2, first sentence in conjunction with Article 1 § 1 CIM). This does not apply to contracts of domestic carriage by rail only.

The contract of carriage is concluded by mutual consent of the parties to the contract – consignor and carrier, who under normal circumstances also sign the consignment note (Article 6 § 3 CIM). An implied conclusion of the contract of carriage is also possible. The carrier’s obligation to carry the goods in accordance with the contract of carriage arises therefore at a very early stage, even before the goods have been physically handed over for carriage. Liability for non-performance of the carriage is actually based on the applicable national law, since, in accordance with the CIM UR, the carrier is regarded as being liable only “between the time of taking over of the goods and the time of delivery“ (Article 23 § 1 CIM). National laws frequently provide no upper limit for the liability – unlike international rail transport law (e.g. 17 units of account per kilogramme of gross mass short – Article 30 § 2 CIM).

End of the contract:

With the handing over of the consignment note and delivery of the goods to the consignee (authorised) at the place designated for delivery, in addition to the receipt and payment of the amounts due and in accordance with instructions stipulated in the contract (e.g. payment of transport costs, handing over of the original copy of the consignment note, confirmation of receipt, etc.) the contract of carriage is regarded as being fulfilled (Article 17 § 1 CIM). Under normal circumstances, the delivery of the goods takes place all in accordance with the prescriptions in force at the place of destination (Article 17 § 2 in conjunction with Article 17 § 5 CIM). With the acceptance of the goods by the authorised consignee, all rights of action against the carrier arising from the contract of carriage are extinguished. Any claims made by the authorised consignee in the event of loss or damage that were visually identifiable not later than seven days after the acceptance of the goods remain unaffected [(Article 47 § 2 b) Item 1 CIM] and within 60 days in cases where the transit period has been exceeded [(Article 47 § 2 c) CIM].

Conclusion:

The Contract of International Carriage of Goods by Rail thus starts with the taking over of the goods from the consignor and ends with the delivery of the goods to the authorised consignee. Except where otherwise agreed, consignments are accepted at the normal loading siding at the forwarding station or forwarding terminal and delivered at the normal discharge siding at the destination station or destination terminal (Item 1.7.6 of CIT Customer Agreement Checklist). In addition, Items 11.1 and 11.2 of the GTC-CIM apply. The acceptance and delivery points are accordingly recorded in Boxes 10 (delivery point, supplemented with details of the destination station in accordance with DIUM and country in accordance with the Appendix to UIC leaflet 920-14) and 16 (point and date of acceptance - if the details of the actual acceptance differ from the details provided by the consignor, this is to be noted by the carrier who accepted the goods in Box 56 (“Carrier’s declarations“) of the CIM Consignment Note Manual and regarded as binding until evidence to the contrary is provided.

1: In contrast to the previous contract in force in accordance with Article 11 § 1 CIM 1980, which states: “The contract of carriage shall come into existence as soon as the forwarding railway has accepted the goods for carriage together with the consignment note.”

Erik.Evtimov(at)cit-rail.org / Original: DE / 2015-06-23

The immanent commercial component of the contract of carriage in accordance with COTIF/CIM has already been clearly expressed in Article 1, section 1 of CIM: “these uniform rules shall apply to any contract of carriage of goods by rail for payment, […]”. However, the CIV Uniform Rules stipulate that they apply to every contract of carriage for passengers whether for reward or free of charge (see Article 1 Section 1 CIV). Both legal frameworks provide a uniform legal basis for the contract of use of railway wagons and carriages as a means of transport. Now, the question is, depending on the particular constellation, whether the contract of use of vehicles is always concluded for reward, or whether it is possible to conclude it free of charge.

The General Contract of Use for Wagons (GCU) and the Regolamento Internazionale Carrozze (RIC) for carriages that implement the CUV Uniform Rules in accordance with Article 1 section 1 at sector level, do not come down categorically one way or the other. Article 1.1 (2) GCU stipulates that the commercial conditions of use do not fall under the GCU. Given this uncertain legal basis and taking into account the fundamental principle of contractual freedom and the repeal of mandatory carriage since COTIF 1999, we tend to conclude that contracts of use according to the CUV Uniform Rules and GCU do not necessarily have be concluded in return for a fee, as is the case for cross-border carriage of goods by rail. There may also be situations in which free of charge cross-border movement of empty wagons is possible with the CUV wagon note.

Erik.Evtimov(at)cit-rail.org / Original : DE / 2019-07-05

Is it possible for a freight payer also to be entitled to modify the contract of carriage, or only the consignor or consignee?

Although Article 18 § 1 CIM speaks solely of the consignor and Article 18 § 3 CIM speaks solely of the consignee, it is a basic principle of contract law, also including the national law of obligations, that the rights can also be transferred (assigned) to other persons entitled to dispose of the goods. This is the case with the freight payer, since he pays the transport fees and subsequently becomes the creditor of the obligated party, who can transfer his rights arising from the contract of carriage to him.

In order to be able to amend the contract of carriage, the fact that such an assignment has been made by the consignor or consignee to the freight payer must, as appropriate, be shown in the form of an amendment to the duplicate of the consignment note as evidence of the contract, on which the modifications must have been entered (cf. Art. 19 § 1 CIM and instruction sheet 04-01 GTM-CIT). The carrier thereafter executes the subsequent orders, makes the modifications and amendments to the consignment note and also enters the modifications to the contract of carriage in box 21 of the consignment note (for further particulars, see instruction sheet 04-02 GTM-CIT).

Erik.Evtimov(at)cit-rail.org Original: DE - 2017-05-18

For the international carriage of goods, transit periods, as a matter of principle, are agreed between the parties to the contract of carriage – consignor and contractual carrier. In the absence of such an agreement, the maximum transit periods apply in accordance with Article 16 § 2 CIM and Item 9 of the GTC-CIM of the CIT.

What is meant by the term maximum transit periods? How do the maximum transit period and the period for carriage differ?

When the period for carriage initially appears understandable in each language, what is actually meant by the forwarding period? Is the loading time also included? Article 16 § 2 CIM initially postulates ex lege that different maximum transit periods apply to wagon-load consignments (a) and less than wagon-load consignments (b). This difference in terms of the object of the contract of carriage, however, is the same with regard to the way the maximum transit periods are composed. For wagon-load consignments and less than wagon-load consignments, they are made up of the forwarding period and the period for carriage for the distance travelled in kilometres (and not in any other unit of measurement) in each case.

In addition, the forwarding period differs from the loading time, which refers to the last rail-specific operating procedures before the goods are accepted by the carrier for the carriage. Loading (and unloading) and the associated activities, such as stowing of cargo, intermediate storage, packaging and repackaging of goods, are included in the overall term ”handling of goods“ at a specific location( 1 ). The loading time is accordingly governed by the relevant national law at the place of acceptance.

The forwarding period on the other hand is a component of the transit period and therefore one of the decisive factors

regarding liability for delay in the event that the transit period is exceeded( 2 ). The carriers involved are notified in the event that the transit period is exceeded in accordance with Article 33 CIM using the specimen form in Annex 1 to Item 3.2.2.2 AIM.

Erik.Evtimov(at)cit-rail.org / Original: DE / 2015-01-08

A load needs to be adjusted because the original loading by the consignor was unsatisfactory. The payment instruction on the consignment note is “Carriage charges paid up to X”.

• Does either the forwarding carrier or the carrier where the costs of adjusting the load arise have to create a charges note for such a consignment?
• How must transhipment costs be taken into account?

In accordance with point 3.1 of Appendix 11 to the GTM-CIT, a charges note must be produced when not all the charges which a consignor accepts can be calculated by the forwarding carrier. Production of a charges note is the responsibility of the forwarding carrier.

The exception to this rule, provided for in point 3.2 of the same appendix where certain Incoterms are used, is intended to avoid the systematic production of charges notes on forwarding (ancillary charges covered by an Incoterm are not necessarily raised on all consignments, but only where necessary).

In accordance with Article 10 § 1 CIM and point 8.1 of the GTC-CIM, the costs which the consignor is to pay include the carriage charge, ancillary charges, customs duties and other charges. In the case of the consignment in question, the reference to payment of charges does not cover the charges for load adjustment. These charges need not therefore be entered on the consignment note and a charges note need not be made out. The charges for load adjustment should be directly invoiced to the consignor on the basis of Article 13 § 2 CIM (also see GTM-CIT working sheet 05-03, last paragraph under “carrier”).

Henri.Trolliet(at)cit-rail.org / Original: FR / 2012-11-06

The consignee has accepted the consignment note for a consignment subject to the RID but hasn’t taken delivery of the goods.

Are there “circumstances preventing delivery”? Who is liable for these dangerous goods at the delivery point?

By accepting the consignment note, the consignee becomes a party to the contract of carriage. The carrier may not therefore start the procedure for circumstances preventing delivery if the consignee doesn’t accept the goods. To cover this situation, the CIT Freight Traffi c Manual (GTM-CIT) specifi es that circumstances have not prevented delivery if the consignee accepts the consignment note but does not take delivery of the goods (see working sheet 08-01 GTM-CIT).

In accordance with Article 17 § 4 CIM, the person entitled may refuse to accept the goods even when he has received the consignment note, so long as an examination which he has demanded in order to establish alleged loss or damage has not been carried out. In other words, the consignee becomes a party to the contract of carriage by accepting the consignment note. Having done so it is true that he isn’t formally obliged to take delivery of the goods. In those circumstances, however, he must then bear all the consequences which follow from his delaying or refusing to accept the goods, in particular if he postpones acceptance of dangerous goods without a compelling reason (see sub section 1.4.2.3.1 RID).

Henri. Trolliet(at)cit-rail.org Original: FR

Can freight traffic still be consigned as express parcels?

Under Article 8 § 3 CIM 1980, the railways could agree on special provisions for the carriage of express parcels by means of tariff clauses. These provisions had to conform to Annex IV to the CIM Uniform Rules (the Regulations concerning the international carriage of express parcels by rail - RIEx), In accordance with § 1 of these regulations, only such goods as are carried in a specially rapid manner subject to the conditions of an international tariff were considered to be express parcels. Back at that time the CIT created the Uniform Rules concerning the Contract of International Carriage of Parcels by Rail (TIEx) by applying the provisions of Article 8 § 3 CIM 1980 and the RIEx.

When the 1999 CIM Uniform Rules entered into force on 1 July 2006, the special provisions of the RIEx and the TIEx (and in particular those on transit periods and derogations from various provisions of the CIM Uniform Rules became redundant; they were not carried forward to the new texts. Since then, these issues in effect have been left to contractual freedom.

In other words, goods that have to be transported particularly quickly today may be carried under the aegis of the CIM Uniform Rules but adding special conditions agreed between the parties to the contract of carriage.

Henri.Trolliet(at)cit-rail.org / Original: FR / 2012-07-17

Who is the principal for completion of formalities which customs authorities require for wagons?

The CIM Uniform Rules do not govern relationships with customs, but rather the structure of the contract of carriage – the legal relationship between the customer and carrier. The only provision relating to customs law in the CIM Uniform Rules is Article 6 § 7 CIM which refers to the consignment note. This provision is closely related to the simplified transit procedure for rail. In the view of customs authorities, the railway undertaking is the principal to the movement for this procedure.

The European Union Customs Code defines the railway undertaking as the principal for the simplified transit procedure for rail and the concept is also used in the EU-EFTA Agreement on the Common Transit Procedure. Under this procedure, the simplified transit procedure for rail only applies to wagons if they are consigned as goods in themselves and not if they are merely used as means of transport (see Article 24 CIM).

As has been the case in the past, wagons which are subject to the General Contract of Use for Wagons (GCU) are not consigned as goods in themselves and therefore are not subject to the transit procedure. These wagons are means of transport; under particular circumstances, however, they may be subject to a temporary import procedure. The revision of the GCU which has been set in hand will clarify if the wagon keeper is the principal for the customs formalities for the wagon.

Erik.Evtimov(at)cit-rail.org / Original: DE 2012-04-25

May a customer apply a “loose and gravity shunting prohib­ited” label to each wagon as a precautionary measure?

In Appendix 16 of the CIT Freight Traffic Manual (GTM-CIT), it is stated that the “loose and gravity shunting prohibited” label must be applied to wagons

• carrying exceptional consignments when that shunting restriction applies to the consignment,
• accompanied by an escort,
• with a gross mass [weight] of 100 tonnes or more.

If this is not the case, no such label may be applied. To protect the goods, however, it can be agreed that a label be attached to each wagon. In Item 2 in fact, the GTM-CIT states that deviations from the manual can also be agreed with the undertakings involved in the shipment.

Nathale.Greinus(at)cit-rail.org Original: DE 2012-02-27

May the consignor ask to amend the information shown on the CIM consignment note in boxes 13 (Commercial specification), 14 (Number of customer agreement or tariff) or 20 (Payment instructions)?

Article 18 § 1 CIM contains a list of the changes which the consignor or consignee may make to the contract of carriage. This list is not nevertheless exhaustive. The same comment applies to the list shown on the “Subsequent orders” form defined in Appendix 7 GLV-CIM. The consignor or consignee may thus ask for other changes to be made to the contract of carriage, for example a change to the information contained in the consignment note boxes listed above.

The extent to which such requests for changes have to be conducted is to be decided case by case on the basis of Article 19 §§ 3 and 4 CIM.

Henri.Trolliet(at)cit-rail.org / Original: FR / 2011-09-17

Locomotives with power disconnected (dead locomotives) are increasingly being moved in freight trains to allow them to be used for shunting operations elsewhere. This raises the question of whether the Uniform Rules concerning Contracts of Use of Vehicles in International Rail Traffic (CUV-Appendix D to COTIF) apply to these locomotives hauled dead.

In accordance with Article 1, the CUV Uniform Rules apply to “bior multilateral contracts concerning the use of railway vehicles as means of transport for carriage in accordance with the CIV Uniform Rules and in accordance with the CIM Uniform Rules”. In the German version of Article 2 (b) CUV, vehicle (Wagen) is defined in terms of a “Fahrzeug”, a somewhat wider term. Whilst “vehicle” in English would not exclude a dead locomotive, the French definition (which prevails in COTIF in the event of divergence, in accordance with Article 45 § 1 second sentence COTIF) is somewhat narrower and would seem to exclude a locomotive not provided with a means of traction. Nevertheless, the objective and purpose of this provision is primarily to define a vehicle as a means of transport for the purposes of carriage.

So the question of which other rules can be applied to locomotives moved dead-in-tow still remains.

Firstly, it must be noted that “not provided with a means of traction” therefore excludes “traction”. This latter consists of making traction available for hauling loaded or empty vehicles within a specific time band and for a specific price (see point 1 of the GTC traction).

In consequence, it would seem apparent that such cases must be subsumed within Article 24 CIM Uniform Rules. In accordance with this article, dead locomotives are to be consigned as goods and for international freight traffic by rail, a CIM consignment note is to be used. In accordance with Article 24 § 1 CIM, the carrier is liable for the loss of or damage to the vehicle (in this case, the dead locomotive) or its removable parts during the period between taking the vehicle over and delivering it as well as for exceeding the transit period. On the other hand, the carrier is not liable for the loss of accessories (Article 24 § 2 CIM).

This interpretation is also supported by an earlier and teleologic interpretation, that applied to Article 5 § 1 (b) first sentence CIM 1980. The standard supplementary provision for this article (DCU 2 point 2 of 1 January 1993) included locomotives in the definition of railway vehicles running on their own wheels.

Erik.Evtimov(at)cit-rail.org Original: DE

How is the movement of tank wagons with residues organised? Are they moved as means of transport under the CUV/GCU regime or as goods under the CIM regime?

If a tank wagon cannot be emptied fully for technical reasons, a residue will remain; despite the residue, the wagon may be regarded as empty. Accordingly, it may be consigned as a means of transport with a CUV wagon note.

As far as we are aware, there is no internationally agreed standard provision which sets a maximum quantity for residues such that above that level the tank wagon has to be regarded as loaded and consigned with a CIM consignment note.

If the residue is in fact the residue of a consignment of dangerous goods, the provisions of the RID (see 5.4.1.1.6.1) apply both to the empty journey of the wagon and the details which have to be entered on the transport document [i.e. the CIM consignment note, the CUV wagon note, or the transport document for empty uncleaned means of containment (see point 15 GLV-CIM)].

Nathalie.Greinus(at)cit-rail.org Original: DE

Wie ist das Vorgehen, wenn der Beförderer auf Anfrage des Absenders die Tara des Wagens für die Ermittlung der Masse einer Sendung nachprüft und einen massgeblichen Unterschied zu dem am Wagen angegebenen Gewicht feststellt?

Auf internationaler Ebene sind keine einheitlichen Bestimmungen vorhanden, die solche Fälle regeln. Es ist also nach den Bestimmungen des jeweiligen Unternehmens zu verfahren.

Das allgemeine Vorgehen über die Nachprüfung ist in Merkblatt 02-07 des Handbuchs Güterverkehr des CIT (GTM-CIT) enthalten. Dies bezieht sich jedoch lediglich auf die Nachprüfung der Angaben des Absenders im Frachtbrief.

Henri.Trolliet(at)cit-rail.org Original: FR