International Transport

INTRODUCTION: GENERAL CONSIDERATIONS ON THE CONTRACT OF TRANSPORT

I. GENERAL PRESENTATION

A) TRANSPORT A key activity practiced by law

The transportation of good is very common activity led in this globalize word of the top. It’s a point to keep
in mind in order to don’t adopt a caricatured speech. The transportation of good is crucial activity,
shipping is at the care of international commerce.
The shipping consisting moving any sort of cargo from one point to another. The majority of the
international transport operations are made by sea: a work merchant ships. Many of these operations are
conducted in multimodal transport that may imply road haulage or air carriage. Keeping in mind some
notions of maritime law of our international law.

Transport operation are protected in guaranty by international transport law consisting in many
International
treaties and international conventions for the need of commerce.
During an international transport operation,the applicable source of law shall be determined in order to
save the situation.

B) Different sort of cargo, different sort of ships, different sort of transport

Cargo can be package into parcels. They may be put into pallets, into packs, or transporting in bulk
(= en vrac).

1) Bulk and timber

The cargo can be bulk that iron ore would in this case the bulk would be loaded into ship holds (en soute).
They may be start also on deck. This ships call may be. In a case of cargo of food the ship use is a timber
ship.

A cargo can be bulk — that is raw materials like iron-ore, coal, wheat, rice, cottons etc. These raw materials
would be loaded and stored into ship-holds, covered by hatches. It may also be put on the deck : it entirely
depends on the nature of the cargo considered. In these situations, the type of ship used is named a bulk-
carrier. In case of timber, the ship used is a timber-ship, and wood is often loaded on the deck for it may
resist to difficult sea conditions during the voyage and can be hardened by bad weather.

2) Oil, chemical and Petrolia product

For this kind of cargo the transport will be a oil cargo or tankers. Tankers take a way similar to bulk carrier.
For these materials, the ship used is a tanker, also called oil carrier.
The type of ship transports crude oil, chemicals and petroleum products. Tankers may appear similar to
bulk- carriers but the decked is flushed and covered by oil pipelines and vents. This sort of merchandise will
determine the legal rules that should be applicable. The safety and security rules that apply to oil
transportation would be different from the rules applying to a transport of wheat.
If by misfortune, the ship sinks, the consequences are going to be totally different from a timbership to a
tanker. You may certainly die by hitting a timber, but the sinking of an oil ship will ruin an entire cost.
 3) Manufacture foods and product

The transport of this kind of product is container ship. This type of ship carries most of the world goods.
Usually, you have to respect times cause there is a lot of traffic, that’s why we use the expression
“Scheduled liner service”
For manufacture goods the cargo is start into backs parcels or carton or put on pallet that loadges into
container and then ship. The container of box is appropriate for manufacture goods of fragile food to be
packed. By example; for food like fish, special container may refer are used.

The ship used for this transport is a container ship. This type of ship carries most of the world’s
manufactured goods and products, usually through scheduled lines. The cargo is packed into bags, parcels
or put on pallets and is then loaded into containers. The container is also appropriate for fragile food to be
kept a certain temperature. For instance, for food like shrimps or fish, specials containers named reefers
used.

4) Vehicles

Cargo may also consist into cars or any sort of vehicle.

In that case the appropriate ship is Ro-Ro ship (roll In- Roll of)= A car carrier (u have different desk on
which you can put the cars)

5) Different mode of transport

All the cargos may also be lauded by a train wagon or put on a river barge or put into the hold of an
airplane.
All the cargo may also be loaded on a train or into a river barge. (lorry different of truck). Transport by air is
more expansive. Transport may be land by sea by land, by air, by river, by train or by a combination of
certain of several of this many transport.
Transport of good in 20 feet containers since 1970 as proved is efficiency.

The free leaders of this special of CMA/CGM must recently (Nicolas Hulot) whose dismissed because
construction of big containers are riskily and difficulty of transport is pollution.
The sea carriage of good is a very good value, is got ship and shipper (cheap and cheaper?), and the cost of
transport are derisory in comparison (a percentage) with the shelf-price.

II. THE MAIN PLAYERS of this transport operation

A. The main contracting parties

The contract of transport is concluded between a shipper and a carrier in the view of moving into cargo
from one place to another place. The shipper sent the cargo to the consignee. The shipper represents
cargo interest.
Cargo
Shipper ----- Consignee
Carrier

The contract of transport is a particular type of contract, because a third party is interested by a
performance of the contract (le bon accomplissement, la bonne execution du contrat).
The carrier transports the cargo.
That third person is the consignee who awaits the arrivals of cargo. This is a triangular operation. The
shipper want sends the cargo with the help of carrier. Shipper and carrier insurance.

B. The others players

Further than the three main players of the contract who are the shipper, the carrier and the consignee,
other person obtain take part throughout the operation of transport at different.
 The freight forwarders = commissionaire de transport, they organize under their name the entire
transport operation for the benefit of the shipper. Then we have carrier or carriers and then we
have the consignee. This is not a classical contract because we see successional contract and
difficulties will be to determined when u have a currency of any trouble, difficulty during the
performance of the contract. What contract, what condition, what law is applicable? because it is
so complete.
Freight forwarders have an “obligation de resultat”. Lot of pressure they have liable on any case or
damage of cargo. They may only escape their liability by case of cause étrangère. The many
situations cargo interest will be iger because they would purpose ointo proof whiches solid
procedural advantage art L132-4 to L132-6 of code de commerce defend their obligations under
French law.
 The freight broker (transitaire) they organize for the shipper or for the brok holder as
representative agent only of a part of the transport. Case of multimodal transport by exemple road
transport after or before a maritime transport. They receive the cargo from the first carrier, they
find the best equation from the next part carrier. They are only liable in case of personnal food to
ask the shipper. They not respect the instructions. The liability suppose they need choose the next
carrier. Any claim against a freght broker is to be time barred.
 The stevedores, they load on unload cargo before or after maritime transport. They are liable for
personal boat during this operage. If suchful can be proved by the claimant (or the plaintiff) they
also are responsible for the storing of cargo before it will loaded on ship or once he does it
unloaded the remittance. Only the stevedores client may claim against him.
 The ship agents (consignataire de navire) are designed by the ship owners or by the Charterer in
case of Charter party. A ship is a very expensive think. Maybe useful from higher easier from the
purpose of commerce. Ship agents organize the maritime carriage (voyage). The ship agents also
schedule the client services. They would retail custom brokerage. They may all the services for the
ship. In short anything a ship need is coordinate for the agents
 P and I clubs; are mutual marrying interest. The vessel. They have their own room. They prepare
different sort of overage. They are competitive. On their roads thei proby coverage on the risk claim
is not subject of any exclusion provided by root.
 Port authority ; or air authority their aware by any call (= escale). They signal any abnormalities. a
berthing ship (un navire ou mouillage). when the ship is under waterline (ligne flottaison) they
write what they see.
 The customs they check transport documents, they inspect cargo In case of international transport,
they chek authorization in case of transport of dangerous good such as gas.
 The states or provinces they intervene in case of maritime provision, in case of the crush of
airplane or any case, any accident of importance.
 The surveyors (enqueteurs, experts) theses experts intervene very fall of state of transport good.
They ascertain their quality before or after the transport. They can out under half of the shipper or
carrier of any other player in order preserve their right. They are higher by commercial vessel by
private use owners or by cargo concern or cargo interest to deal with the condition the
construction or the damage of vessels, as well as the stowage under transportation of cargo. They
abscess values for interest carrier, for approvisals (encheres).
 The crew (éauipage) they conduct transport, they don’t inker the same liabliyty of carrier. Only
liable in case of personal fault.
  Unexpected players, sort of player of ownership, or ship agent in case of collision at sea, they may
be parage in case. They may be unpaid of charter in case of charter party. Ex: eager to arrest the
ship (saisir le navire (juridique). It may also be the navy for the purpose of security for example.

International transport is complex operation involving many potential players. The legal aspect of this
operation, depend on the nature of the transport that is planned.

Chapter 1: the contract of sale underlying the contract of transport

Most of the time, the contrat of sale underline the contrat of transport.Of course the contract of transport
may be non onerous, non intervening in the fram of a contract of services (sales?). But most of the time it
does when it happens to complete this.
The contract of sale would determine each parties shall of the cost of transport the risk of damage or loss,
the liability. Whereas the contract of transport determined the obligation of displacement of merchandise,
of passenger from one point to another one.
Incoterms or international commercial terms are used to define the reciprocal obligations on right of both
sellers, on buyer.
The letter of credit is bank to bank operations which constitute a mechanism of payment for the seller
once the goods have been shipped and received in good order.

Paragraph 1: the incoterms

The international commercial terms or incoterms rules are an internationally reference standers are used
worldwide in international and in domestic contract for the sale of good.
First publish in 1936, incoterms probably accept the definitions as rules : a rule of interpretation for most
common commercial terms. The rules had been developed and maintained by professionals and the ICC
(chambre de commerce internationale) and had become a standard in international business rules setting..
They help traders to avoid misunderstanding by clarify the cost about the risks and liabilities, involved by a
delivery of good from sellers to buyers.
Incoterms rules are recognize by the united nations commissions on international trade law .
Incoterms recognize as global standers for in globalization of the most common terms in foreign trade.

New incoterms have been edited by chamber de commerce international in September 2010. They became
inforce in 2 January 2011.

The question is with the contract of sale, when occurs the moment of delivery of the cargo?
The time of delivery of the cargo determines the time of the transfer of the risk. We identity 4 groups of
incoterms, which are named after the first initial of their acronyms:
- Group E, F and C concerns concluded at the departure of the goods.
- Group D concerns sells concluded at the arrival of the goods.

Transport _____x___________________________> x Delivery

Group “e””f””c” Group D

To remember: Certain incoterms do only apply to maritime and inland waterway transport.
 A. The first group “e” departure there is only one incoterms :

EXW this is exwars. All mode of transport goes with this incoterms. The sellers should make the good
available at the premises being the works/ factory.
The seller should make the goods available at his premises (works, factories, warehouse (entrepôt), the
plant (la centrale)), ready for collection on the date agreed upon and unloaded
The buyer pays all the transportations cost, and also base the risk for bringing good to the final destination.
That means that under these conditions, u have a maximum of risk incurred by the buyer. This trade term
places the greatest responsibility on the buyer and minimum obligations on the seller.

The EXW term is often used when making an initial cotation for the sell of goods without any costs
included. These terms require that the buyer must able to carry out export formalities in the country of
supply which is also impossible theses days.

Technically the … is obtenues when initial protection for the sells goods without any cost included. These
terms requires that the buyer must be able to carry out export formality in the country of supply which is
almost impossible these days. In vast majority of cases where turns EXW they actually intend that the seller
should carry out export formalities which mean that the correct term is FCA that is sellers formalities.
FCA = free carrier

B. Second group : Group F = Free of many carriage

That group should be the FCA
The place of delivery is named. It’s concerned all mode of transports. The sellers has to hand other the
groups clear for export, checked package and mark into custody or the first carrier, or other person named
by the buyer at the named place. The buyer bears always of lost damage or loss of goods from the time
they have been delivered in the named place. *this incoterms is usually used for the goods stored into the
containers and left at the terminal.

Second incoterm of group F :

FAS = free a long side ship
The port of loading is named. This incoterms is only for maritime transport or inland waterways transport.
The seller have only good for sellers, after he has checked a package and mark them. The buyer base all
risk and damage of the goods from the time of the place to the ship.

Third incoterm ; FOB = free on board

Port of losing his name, of course it is a maritime of England waterway incoterms. Frequently use but only
supplies for bulk, because containers are usually delivered at the terminal.
The seller must place the good alongside the ship at the named port. The seller must clear the goods for
export after he has checked, packaged and marked the goods. The buyer bears all risks plus damage of the
goods from the time they have been placed alongside the ship at the loading point.
The seller loses goods border ships at the port nominated by the buyer. Cost and risk are divided or ship.
The seller must clear the goods for export & chech their weight.

C. The group C : Carriage paid = CFA, cIF, CPT, CIP

The seller fool feels of obligation once he has hander on carrier.

CRF: Cost and Freight under this incoterm: the port of destination is named. This incorterm apply only
maritime transport or to inland waterline transport. This incoterm only apply to bulk for the reason that
containers are usually delivered at the terminal.. Under this incoterm the seller has to pay the cost and
freight to bring the goods to the port of destination. The seller is required to make contract to carriage and
to clear the group for export. Risks are transfer to the buyer once a good had crossed the ship rail.
Incurrence of the cargo is at the cost of the buyer. Cost incurrence of freight of this incoterm.

CIF: cost insurance and freight. The port of destination is named, as cost insurance and freight. it only
apply to maritime and inland waterways transport and only for bulk. The conditions are the same than CRF
except that the seller must procure and pay the insurance for the buyer. The conditions of cif are the same
as CFA exept that in addition the seller must procure a pay for incurrence for the buyer.

CPT: carriage paid to; the port of destination is named.

This incoterms concern almost a transport. It’s a general containers multimodal equivalent of CFA.
The seller is required to make a contract and clear good for exports. The seller pays the cost of
carriage to the named point destination. The transfer of risks occurs when the good are ended over
to the first carrier on an aggreed date or period.

CIP: carriage and insurance paid

The place of destination is named this incoterms is available for all modes of transport. It’s the
same condition that CIF except that it’s available for container transport or multimodal transport.
Under this incoterms the seller clear the goods (pries for) export, he paid for carriage, and
insurance for export to the named destination point.

D. Group D: Delivery included

Meaning that you reach obligation on seller. Max obligation for the seller.

DAT delivered at terminal

Under this incoterm a terminal is named at port or at the place of destination. The use of this
incoterm that is possible for any mode of transport. It is possible to use that for combine transport.
The seller is required to make a contract of carriage. In one way you can say that the transport has
to its legal aspect. Seller must clear the goods for export. The seller must pay the cost of carriage to
the named point of delivery . an important point is that the seller must know the goods from the
arrived means of transport.
May have advantages for the seller which would be ..
The price of the sell would be higher as he may expect a bigger margin as a consequence, as annual
reserves would be better. If the seller has possibility to using DAT incoterm he expect better
merges.
The seller brings the goods to the name place destination, on an a great day, on an a great period of
sale. He must choose carefully the transporter. All of that can be applied because multimodal
transport is possible. The seller must check the weight, the number and the quality of the goods.
He must check packages and mark them. Then the seller give notice to the buyer of the delivery.
Therefore u understand that the contract of carriage must be conductible in accordance with
instruction giving by the seller in otherwise the liability of seller would be sought by
Liability of transporter or transport, or he would seek in easier way the freight forwarders liability if
there is any freat for roader. The transfer of the risk occurs when the goods are delivered to the
named place.

DAP: Delivered at place

 Under this terms the seller would have the same obligations than under DAT terms expect that the
goods are delivered when they are at the disposal of the buyer at the named place but unloaded
from the arrival means of transport. The seller doesn’t have to unload the cargo.

DDP: delivery duty paid

Under this incoterms the place of destination is named and all mode of transport are available and
maybe used under this incoterm. Even a combine transport is possible. The sellers obligations are
the same than under delivery place (DAP) except that the seller must clear the goods for export.
The seller must paid any duty even the value of the tax (French invention) VAT= TVA.
The seller must carry out customs formalities. DDP represents the apex (= the summit, the
maximum) of obligation for the seller who assumes in this case the all export import operations.
The seller needs a freight forwarder and makes a contract of transport with one or several carriers
to do the transport the buyer. So there are 2 contracts : between the seller and the buyer AND
between the seller and the freight forwarder.
Exercise :
Wants to sell 30 tonnes of oak from the port of LE HAVRE to the port of HONG KONG.
What incoterm would be suitable for the maritime shipping ?
FCA, FAS, CRF: for bulk goods, CIF: with insurance so better that CRF, CIP better because containerize and
multi model, DAT: if the buyer pay and if he wants to unload the sheep, DAP: doesn’t have to unload the
cargo, DDP: intervention of a freight forwarder. Less suitable: FOB: nominated by the buyer, CPT: multi-
model=> doesn’t feet with oak, EXW: the buyer does everything and we are the buyer.

Correction of the exercise : FOB can be suitable because it’s a maritime transport, CFR can work too
because it’s for bulk good but imply more responsibilities, FAS is the most suitable for woods: less
obligation for the seller depends of the situation of the lend of export, DAP would perfectly suitable as
well.
DAT not suitable for wood it is for containers, neither EXW and CPT.
CIF is an option but not the best one.
 Custo
INCOTER LOAD EXPORT transpo unload loading transpo loading unload transport Insuran ms
MS TO DUTIES rt to from charges rt to charges ON TO to ce duty
LORR PAYME exporte lorry at at importe at LORRY destinati taxes
Y NT rs port exporter exporte rs port importe AT on At
’s ort rs port rs port importe distanc
rs port e
,

EXW NO NO NO NO NO NO NO NO NO NO NO
FCA YES YES YES NO NO NO NO NO NO NO NO
FAS YES YES YES YES NO NO NO NO NO NO NO
FOB YES YES YES YES YES YES NO NO NO NO NO
CFR YES YES YES YES YES YES YES NO NO NO NO

CIF YES YES YES YES YES YES NO NO NO YES NO

CPT YES YES YES YES YES YES YES YES YES NO NO
CIP YES YES YES YES YES YES YES YES YESYES YES NO
DAT YES YES YES YES YES YES YES YES YES NO NO

DAP YES YES YES YES YES YES YES NO YES NO NO

YES YES YES YES YES YES YES NO YES YES YES

You want to sell 14 tonnes of coke from the port of le havre to the port of honk-kong in china. What
incoterm would be suitable for this maritime shipping.
FAS,
FOB, CFR, CIF (in option)
DAP is suitable

(
Dat is only for containers so it’s not possible here.
 CHAPTER 2: The LEGAL FRAME OF THE CONTRACT OF TRANSPORT

You need lown marks in the maise of legal devices applying to the contract of transport. Managing the
logictics controlling the flow and the storage of materials U may face situation of raises. The charges late
delivery damage to the goods all total lost of the goods. If any of these situations occurs u must be able to
determine what your potential degree of liability is. In this situation the key points are the valuation of the
goods. What valuation to use?
Price of sale, or valuation by surveyors (expert).
If we are in case of total loss, you only need to ….

1. The first question to ask is: what is applicable law? -> What law?
2. How to solve a conflict of law? -> What law?
3. Which is the competent jurisdiction/ Tribunal? “What judge?”
4. Is there any exemption or limitation or liability? “To which expend?”
5. Who can be held liable? “Who?”
6. To what extend?
7. How to execute the judgment? 3 situations: - execution in France,
- in EU, and execution
- in worldwide (outside the EU) ( exequatur?)
8. Solvability of the contracts

I. The French legal order

Transportation French law is heterogeneous and its competence depends on:

1. The law of the contract implies that it is determined by a clause written in it. That is to say, that this
law is elected by the parties. The law of the contract is chosen by the carrier which uses its own
general condition on the document of transport. For example, if it’s a bill o loading, there is a lot of
chances that would be a choosing law. Most of the time the shipper has no other choice than
agreeing with them (general condition) but he may discuss; the general conditions depends on the
quotation, on the price of gas, fuel etc. its suggest variation. The election of law of jurisdiction is
written on the paramount clause, which may found on the GTC (General conditions and Terms) in
case of dispute. The selection of jurisdictional of law it would be written on consignment law (lettre
de voiture), it could be put on Bill of lading (B/L) if it’s a maritime shipping, it could put on seaway
bill (other type of maritime transportation). If it is an air transport, than it could be put on Air
waybill.

2. Law applicable to the country where the damage are loss are delay, occurs. The French notion of
“ordre public national” and “ordre public international” may interfere with the contract law, it may
prevent French law to be fooly applicable to the contract of transport. As the consequence, a
foreign law may be applicable in such situations. Hence, the B/L may determine that a certain law
applies, but if the damage occurs in France the transportation may fall under the French
jurisdiction. Once the french public order is met, there is no derogation ;

3. International treatees signed and ratified by the country wherefrom or whereto the transport is
due. Sometimes there is treaty signed but not ratified, so it would be ratified. When it’s ratified, the
French law would be apply. The French notion of ordre juridique is adamant. U may no. it
determine the legal regime who should apply. Therefore international treaty and convention and
amendments to the treaty (modifications to the treaty), and sometimes reservations (.. determine
 mandatory rules, also an aspect. Such as liability the amount of the calculation of indemnity are
such as the competent law.

For instance, the convention on the contract for the international carriage of goods by road: CMR
determine article 41 subject to the provision of article 40. Any stipulation which would directly or
indirectly derogate from the provisions of this convention shall be not null and void (without any
consequences). The nullity of such stipulations shall not involve a nullity of the other provisions of
the contract.
In order to respect this ordre juridique we must kept in mind hierarchy of the legal text under
French legal order: - Constitution (is subject to interpretation made by Justices-> any Justice ->
Conseil constitutionnel)
- International treaties
- / EU regulations <-> A law that is made by several nations representatives of their
respective governments as “executive power”. (historical irony)
- EU directive <-> a principle entitled by European Justices
- The French law (parliament law + orders)
- The French regulations (executive)
- The French decrees
- The French circulars
- Jurisprudence
This hierarchy consisting in French legal order. U have a French circular which have an impact and a treaty:
u must use the treaty. This hierarchy would determine which legal bases, texts are applicable to a national
or to an international transportation; Made by sea, air or road particularly when several different text
seem to be applicable, for example a French law and an international treaty.

II. Domestic transportation law

For an internal transport, French law would apply. But applicable text dutifer dependaning on the nature of
the transport that its use.

A. The code civil regulation for long carriage or inland waterway transport

Art 1782 : the carrier has the same obligation as an innkeeper (un aubergiste) toward his client personal
effect. Its considered as depositary.

Art 1915: as a depositary, the carrier has to take care of the merchandise and has to runder it or giving
back after transport.

ART 1927: the depositary must take good care of the goods to preserve them.

ART 1928: this carrying is more rigorously appreciated when it is onerous contract (in counterparty) as it is
in logistic.

ART 1952: Liability of the carrier for the clothes, luggage and all valuable objects which are brought by the
voyager ⬄Moving contract.

ART 1953: very important ! This article says unlimited liability of the carrier in case of fact or in case of
damages to the good, and beware this article is production of public order. It means that u cannot
derogate it.
ART 1954: put limit to the liability of the carrier under 2 cases: case of force majeure implies that it shoul
be not liability of the carrier, on the case of the latent effect to the goods would not trigger eager the
liability of the carrier.
To guarantee the market of transportation the

Art 1744: the carrier is liable in case of theft or damage except in case of force majeur.
Who should have the burder of the proof? The carrier would have the burden of proof. For force majeure,
the damage would be impredictible, irresistible, and exterior.

1783: the carrier is liable as soon as the goods are handed to him left under this watch even it were the
warehouse.

1785 : common rule ; The carrier must keep a registry. To this article correspond a penal article. According
to the code civil, the carrier must take good care of the cargo. The carrier must deliver a cargo and the
carrier is liable for any damages loss theft unless he proves force majeure.
B. The code de commerce regulation ;

any freat forwarding boat practice act of commerce by nature. This commercial is assorted by :

L132-1 : determines the obligations of the freight forwarder. « Agents on commission are persons
who act in their own name or under a company name on behalf of a principal. The duties and
rights of agents on commission acting on behalf of a principal shall be determined by Title XIII of
Book III of the Civil Code. »

L133-1 : Determine the obligation of the road carrier, inland waterways carriers.

L132-2 “any maritime consignment, any chart of parties, any maritime insurances, any other contracts
dealing with commerce by sea are reputed as being act of commerce.”

Completely, event for small amounts of debt for that, that would be 1500€ ; it won’t be needed a written
proof: a parti want to proof, if it is a case a contract past between non commercial parties, then it would be
necessary to have written element of proof. Whereas concerning a contract dealing with fright forwarding
or a tra,sportation firm by water or air, any maritime consignment or any contract linked wherewith not
written proof would be demanded by law for an amount of that claim, or any claim under the sed somme
of 1500€. That is the principle of liberty of the proof applicable to all marchland unless legal exception of
public order.
This principle is edited by the article L110-3 by the code de commerce.

U must learn the time L111-4 : obligation contracted between marchland or between unnamed marchland
parties, are time-bar . unless a short time limit which they could be subject to.
The time bar is defined by the article L110-4 for the obligations contracted between merchants or between
a merchant and a non-merchant party are time-bared after ten years unless they are subject to special
shorter periods of prescription.

But the article L113-6 submit all actions for damages loss or delay against carrier shall be prescribed after
one year unless the case of fraud or of disloyalty or of unfaithfulness. He’s supposed to react quickly that’s
why the prescription is that short.

When the consignee received the cargo he supposed to react promptly, that why the time is too short.
The starting point of prescription or time bar, in case of total loss is a day when the cargo should have been
remitted and in others situations it is the time when the cargo would have been limited to the consignee.
An immediate remark, its possible to negotiate with other partie the benefit of longer time-bar.
You have quick notice that the damage had happened, the time-bar starts, and you can have the other
party to benefit of a reported time bar.

The obligation of the freight forwarder is describe under the article L133-1 of the code de commerce, this
article defined the regulation of the emission of a way bill or consignment note which is the main
document of transport by road or by river.

Agents on commission for transport liability ;

ART 132-4 set the principle that the freight forwarder shall act as guarantor for the arrival of the cargo or
of the commodities within the period of time specified by the bill of lading except in cases of legally
recorded force majeure.

Article L132-5 : under this article, the freight forwarder submitted to French law, shall act as guarantor for
the average or loss unless it’s stipulated the contrary, unless under a case of « force majeure ». For any
freight forwarders, even not french, it’s one of the greatest advantages to ask the foreign concurrence that
such regime of obligations weights upon the freight forwarder submitted to French law.
In many cases, it applies that the freight forwarder under French law would be liable in case of average or
loss of commodities which reassure the sender of the goods under containment. He would easily engage
his responsibility : if there is any damage ou loss of the goods, his liability oil dab easily engaged. There are
different sorts of transport of goods.
Art L132-6 : he shall act as guarantor for the act of the intermediate freight forwarder to whom he send
the commodities

Article L132-7 : the commodities taken from the sellers or consigners warehouses shall travel unless or
otherwise agreed at the risk of the person to whom they belong except for the letters recurs against the
freight forwarder and the carrier responsible for the transport.
This article aimed at the liability of the freight forwarder or the consigner from the warehouse. This may be
compared with the regime under the incoterms except that it’s also for internal transport or for the freight
forwarder submitted by French law.

Articles dealing with the consignment note (= waybill = lettre de voiture) :

The consignment note is under the French law compulsory (=mandatory), it’s a contract.

Article L132-8 : the consignment note shall form a contract between :

- the consigner (= shipper = sender = expéditeur) and the recipient (= consignee)
- or between the consigner, the recipient, the fight forwarder and the carrier transporter.
Carriers shall therefore have a direct lane for payment of their services against the consigner or against the
recipient who shall act as guarantors for the payment of the transport costs. Any clause to the contrary,
shall be deemed to be unwritten. You cannot stipulated against.

L132-9 :
« I.- The bill of lading must be dated.
II.- It must specify:
1° The nature and weight or the capacity of the items to be transported;
2° The period within which the transport must be carried out.
III.- It shall indicate:
1° The name and address of the commission agent through whom the transport is carried out, if
there is one;
2° The name of the person to whom the commodities are being sent;
3° The name and domicile of the carrier.
IV.- It shall set out:
1° The price of the carriage;
2° The compensation payable for late delivery. (=amount of compensation which is payable in
case of late delivery).
V.- It shall be signed by the consignor or the commission agent.
VI.- It shall contain in the margin the marks and numbers of the items to be transported.
VII.- The bill of lading shall immediately be copied by the commission agent into a numbered and initialled
register without any gaps. »
Every consignment note figures into a register.

Liability of the carrier :

L133-1 : the carrier shall act as guarantor for the loss of the items to be transported except of cases of
force majeure?
The carrier seal act as guarantor fo the average other than resulting from the inherent defect (= vice caché)
of the goods or from force majeure. Any clause to the contrary inserted in any bill of lading, price list or
other document shall be invalid.

L133-2 : If, due to the effect of the force majeure, the transport is not carried out within the agreed period,
no compensation may be claimed from the carrier for late delivery.

The law established conditions to protest under article L133-3 :

The receipt of the transported items shall extinguish any claim against the carrier for average or partial loss
if, within three days of this receipt, not including public holidays, the recipient has not notified the carrier,
by extra-judicial means (= act made by a bailiff = huissier) or registered letter (=lettre recommandée avec
avis de réception), of the reasoned protest.
If, within the period specified above, an expert report request is made pursuant to Article L.133-4, this
request shall be valid as a protest without the notification specified in the first paragraph having to be
carried out.
All stipulations to the contrary shall be null and void. This latter provision shall not apply to international
transport.

Article L133-4 :
In the event of refusal of the items transported or presented in order to be transported, or of any dispute
whatsoever regarding the establishment or implementation of the shipping agreement or due to an
incident occurring during and on the occasion of the transport, the state of the items transported or
presented in order to be transported and, where necessary, their packaging, weight, nature, etc. shall be
verified and recorded by one or more experts appointed by the president of the Tribunal de commerce or,
failing this, by the president of the Tribunal de grande instance, through an Order made following a
petition.
The petitioner shall be obliged, under their responsibility, to invite to this expert assessment, by an
ordinary registered letter or by telegram, all parties liable to be involved in the case, in particular the
consignor, recipient, carrier and commission agent. The experts must take an oath, without a hearing being
required, before the judge who has appointed them or before the judge of the Tribunal de grande instance
from which they originate. However, in urgent cases, the judge receiving the petition may dispense with
fulfilling all or part of the formalities specified in this paragraph.
This dispensation shall be specified in the Order (=measure of how justice is administrated).
The deposit or attachment of the items in dispute, and their subsequent transport to a public warehouse,
may be ordered.
The sale of these items may be ordered up to the amount of the transport expenses or other expenses
already
incurred. The judge shall allot the product of the sale to those of the parties which advanced these
expenses.
Article L133-5 :
The provisions contained in this chapter shall be common to both road and river carriers.

Article L133-6 :
Claims for average, loss or delay, to which the shipping agreement may give rise against the carrier, shall
be prescribed after one year, without prejudice to cases of fraud or inaccuracy.
All other claims to which this agreement may give rise, against both the carrier or commission agent and
the consignor or recipient, and those which result from the provisions of Article 1269 of the New Code of
Civil Procedure, shall be prescribed after one year.
The period of these prescriptions shall be calculated, in the event of total loss, from the day when the
commodities should have been handed over and, in all other cases, from the day when the goods were
handed over or offered to the recipient.
The period for bringing any action for a remedy shall be one month. This prescription shall run only from
the day when the claim against the guarantor is made.

In the event of transport carried out on behalf of the State, the prescription shall start to run only from the
day of notification of the ministerial decision specifying payment or final authorisation of payment.

Article L133-7 :
Carriers shall have a preferential right over the value of the commodities covered by their obligation and
over the documents relating thereto with regard to all transport claims, even thoseresulting from prior
operations for which their principals, the consignors or the recipients remain I debt to them, insofar as the
owner of the commodities over which the preferential right is exercised is involved in these operations.
The transport claims covered by the preferential right shall involve the transport expenses properly
speaking, the supplementary remuneration payable for the additional services and tyingup of the vehicle
during loading or unloading, the expenses incurred in the interest of the commodities, the customs duties,
taxes, expenses and fines linked to a transport operation and the interest.

Article L133-8 :
Only inexcusable reckless conduct on the part of the carrier or agents on commission is equivalent to
criminal intent.
Inexcusable is defined as deliberate intent implying an awareness of the probability of damage and its bold
acceptance without valid reason.
Any clause to the contrary shall be deemed unwritten.
So :
- deliberate
- Conscience
- Accepted

C. The other domestic regulations

1) The law of Orientation of internal transport

This law was originally edited in December 30th, 1992. That law determines the regulation that applies to
professionnel roads carriers on matters such as authorization, pricing, safety of transport, driving duration
(temps de conduite), lapse of pause, any stipulation jeopardizing the safety of transport. Example : a clause
that reduces the duration of the legal pause of the lorry driver is null.
 2) Standard contracts

They are published by decrees. They are only applicable by default in case the parties have not written any
contract of transport. They concern road haulage and inland waterway voyages. Such contracts (standard
contract) do not exist in :
- maritime transport
- rail transport
- air transport.

The consequences are that, we have to prove the nature and the consistency of the self contract.
If it’s a contract that is concluded between two merchants then you will prove the existence of the
consistency, of the contract of transport, by air, by sea, by rail, by any means because the proof of the
existence of an obligation between two merchants is free under French law. So it may be unwritten proof
even if the value of the transported goods at stake is equal or superior to 1 500 euros.
You would have to prove by testimonies, by photographies, by films, by recorded conversations…

3) The « code de l’aviation civile » regulations

The « code de l’aviation civile » determines that the action against the air carrier would be territorially
defined. That means that the code, that set for rules, would apply to the flight directed in between our
borders.
CMR;
But, in certain cases, the provisions of the Convention of Montreal dated the 28th of May 1999, should
apply. The convention of Montreal succeeded to, in order convention, which was the convention of
Warsaw. It’s an international source of law. As a consequence, the domestic air law refers directly to the
international convention.
The Montreal convention determines a presumption of liability of the air carrier who has to prove the
existence of a case of immunity in order to escape his liability. Many exoneration cases, have been
determined under that convention.

III. International transportation law

Domestic law may applied for example if the freight forwarder is working under French law. French law
could ba part of international transportation.

A. International road transport : the convention on the contract for the international carriage of
goods by road (CMR)

The CMR convention May 19, 1966 (amended by the protocol of Geneva of July 5, 1978) was an
intercontinental success (more than 40 states ratified the convention as many States have ratified the
convention : States from Europe, RU, Turkey, Russia etc.).

1) The scope of application

The scope of application is wide. The CMR is widely enforced, even with non-contracting States.

The French bank has to pay a lot to the US treasury. From the legal point of view, that is a violation of the
sovereignty of France. To the reverse, the scope of application of the CMR is so wide that it may be
considered by international lawyers as a breach of sovereignty of a state because non-contracting parties
would be subject to the provisions of the CMR.

Its wide application directly derives from its article 1.1 stating that this « convention shall apply for the
carriage of good by road by vehicles for reward when the place of taking over of the goods as specified in
the contract are situated in two different countries of which at least one is a contracting country,
irrespective of the place of residence and the nationality of the parties ».

Articulated vehicules,

If the transport is between a contracting state or a non contracting state to the CMR and if the non
contracting state is also a non contracting state to the road traffic convention to 1949, there is no reason to
apply the convention of the road traffic convention in a country which has not ratified it, then the
application of the CMR would be efficiently contested. It would depend on the ruling of the justice cause
it’s a question of liberty, sovereignty.
The CMR should not apply to :
- carriage perform on any conventional post ….
- Funeral consignments
- furniture removal (non commercial matter)

Article 1 :
« 1. This Convention shall apply to every contract for the carriage of goods by road in vehicles for reward,
when the place of taking over of the goods and the place designated for delivery, as specified in the
contract, are situated in two different countries, of which at least one is a Contracting country, irrespective
of the place of residence and the nationality of the parties.
2. For the purposes of this Convention, ”vehicles” means motor vehicles, articulated vehicles, trailers and
semi- trailers as defined in article 4 of the Conventions on Road Traffic dated 19th September 1949.
3. This Convention shall apply also where carriage coming within its scope is carried out by States
or by governmental institutions or organizations.
4. This Convention shall not apply:
a) to carriage performed under the terms of any international postal convention;
b) to funeral consignments;
c) to furniture removal.
5. The Contracting Parties agree not to vary any of the provisions of this Convention by special
agreements between two or more of them, except to make it inapplicable to their frontier traffic or to
authorise the use in transport operations entirely confined to their territory of consignment notes
representing a title to the goods.(= domestic transport) »

The CMR convention applies to a road transport from Paris to Montecarlo even those the principality of
Monaco hasn’t ratified the CMR because the place where the cargo had been charged is located in a
contracting state : France.

The article 2 of the CMR determines :

The 1967 protocole has introduced the SDR.
« 1. Where the vehicle containing the goods is carried over part of the journey by sea, rail, inland
waterways or air, and, this Convention shall nevertheless apply to the whole of the carriage. »

2) Special Drawing Rights

The 1967 protocole has introduced the SDR (special drawing right) which is a important characteristic for
western state currency as a tool to measure compensation in case of any loss or damage that may occur on
the occasion of international road carriage.
The CMR conv. has brought on the international consignment note, which confirms the existence of the
contract of road transport.
The absence, irregularity or loss of the consignment note shall affect the existence or validity of the
contract of carriage. Consignment note shall be made out in three original copies signed by the sender and
by the carrier. The consignment note must show these signatures or the stomps of the sender or the
carrier if it’s permitted by the law of the country where the consignment note was made out.
The first copy goes to the sender, the second goes the consignee at delivery (to the company of transport
of goods), and the third copy is retained by the carrier.

When the goods are loading in different vehicles, the sender or the carrier has the right to ask for a
separate consignment note for each vehicle used or for each kind of goods.

3) Liability and immunity of the carrier

The liability of the carrier in case of total or partial loss of the goods is determined by the article 17 : « The
carrier shall be liable for the total or partial loss of the goods and for damage thereto occurring between
the time when he takes over the goods and the time of delivery, as well as for any delay in delivery. »
His liability commences at the time when it takes over the goods. His liability ends at the time he delivers
the goods.

4 cases of immunities of the carrier of determined by the CMR :

- The wrongful act of the claimant (=faute)
- The neglect of the claimant (=négligence)
- Inherent effect of the cargo (=vice cache)
- Inevitable circumstances and consequences (= force majeure). The is a disparity of appreciation.
The existence or non existence of a case of immunity derives from inevitable consequences and
circumstances.

Force under French law must correspond to as define by French jurisprudence to the criteria of inevibility
that you find under CMR as inevitable circumstances. The jurisprudence of the force majeure may be
different. Because it’s not the same notion, they do have similarity. The French notion of Force majeure is
the criteria of exteriority.
The inevitable circumstances since to be weightier (plus large). Its most interesting.

Under French law force majeure is define by: inevitability, exteriority, unpredictability.
It’s the demonstration of the reality of the character of inevitability. These remarks make you aware that
the CMR is only text, and what is only matter would be the decision.

The CMR convention is compulsory of the adherent state, no derogation are possible determined the
article 41 of the CMR. Here we meet an aspect of the notion of French international Public Order (since
we are ratified, this convention is part of French law and of the French international public order). If we
considered the only derogation possible, then we see that they are determined by the CMR itself under
article 40 which defined that only the provision applicable to carriers under article 37 and 38 are
modifiable.
Article 37 treats of recursory action (= action récursoire / different de la demande reconventionnelle).

Article 37 treats of recusory action from one carrier to another carrier in place
This article permits the sharming of liabalility of the different transporter of the different carrier in the
proportion of the road that played in the occurrence of the damage. This article gives right to the carrier
who has take compensation to act against another carrier who may be have partially or totally responsible
of the damage to the cargo.
Recursory action: 2 actions before justices before two different courts
Appel en garantie= one trial

The article 38 determined a common liability of all carriers in chain of international road carriage in the
case if one of the carriers is insolvent (who cannot pay).
Article 37 148 are the only derogative case if we accept the all contract. One of advantages of CMR
convention is to determine a full liability of any carriers intervening on transport chain as to the
performance of the contract.

B. international maritime transport

Bills of lading (B/L) = connaissement

This international convention is known as Hague rules.

1) “Hague rules” (règles de la haye) Doyen Rodière

This international convention is known as « Hague Rules » (règles de la Haye) as amended by the « Hague
Visby Rules » of 1968, and by the Brussels protocol of 1979.

« Protocol (SDR Protocol) amending the International Convention for the Unification of Certain Rules of
Law relating to Bills of Lading of 25 August 1924 (The Hague Rules), as amended by the Protocol of 23
February 1968 (Visby Rules) »

The convention is the he most ancient of all maritime carrier currently forced in the world. The convention
has been ratified by France and also by the UK, Greece, Spain, the Netherlands, Russia, New-Zealand, US,
Italy…
The principle of the liability of the sea carrier and the « Hague Rules » is an objective liability. Means that
the burden of the proof of an existing immunity case lays on the sea carrier. The sea carrier must
demonstrate in order to escape to his liability, the existence of an immunity case as listed under article 4 §1,
§2 and §4.

In 1979, the Brussels protocol introduced the special drawing rights (SDR) of the international monetary
found as currency for the estimation of compensation during … under article 4.4 d). The special drawing
right is a bucket of money such as the Yen, the Euro, the Starling, the Dollar… the special drawing right
varies on fluctuation … there is a correspondence between SDR and 65,5 milligrams of gold, of minions

A bill of lading is the name of the type of contract of maritime transport.

You need to have a contract which is a bill of lading in order to be able to invoke Hague Visby Rules. Is the
transport is subject to another kind of contract then, Hague Visby Rules are not applicable.

The specificity of a bill of lading is that it constitutes a contract of maritime transport but it’s also the title of
ownership of the goods. Plus, most of the time, this ownership over the cargo as listed on the BL, may be
remitted by transmission of the BL.

The scope of application of Hague Visby Rules is defined under the article 10, Hague Rules should apply
each time :
- a bill of lading is issued in a contracted state
- or each time the port of loading is situated in a contracting state
- or each time a paramount clause provides that Hague Visby Rules should be the law of the contract or if it
 determines a contracting state national law as the law of the contract of transport.

The sea carrier incurs an objective liability in case of loss or damage to cargo.

Article 3.8 of Hague Rules stipulate that any derogations are null.

Articles 4.1 and 4,2 and 4.4 list the cases of immunities which are to sum up, the neglect of master, pilot or
the neglect of crew members.

Another case of immunity may be find in :

- the « perils of the sea »,
- or in the insufficiency of packing or rough marking,
- collision
- Or an act of war
- act of God
- Act of piracy

https://www.jus.uio.no/lm/sea.carriage.hague.visby.rules.1968/doc.html

2) The united nation convention of the carriage of goods by sea of the 30 th march 1978, The
Hamburg Rules

It is known of hamburg rules 1978;

The Hamburg Rules met a big success being ratified by African countries such as Egypt, Senegal, Siena
Leon…
Hamburg Rules are applicable to a maritime transport of goods concluded by a bill of lading or by any
transport documents such as a seaway bill or by a data freight receipt.
The seaway bill is a non-negotiable title of ownership over the cargo which implies that the seaway bill is a
sort of rigid reflexible contract than the bill of lading is because the bill of lading is precisely negotiable.

The conditions of application of Hamburg Rules are determined by the article 2 : If the port of loading or the
port of discharged is situated in a contracting state that has ratified the convention or of any other documents
evidencing the contract of carrier of goods by sea is issued in a contracting state. Under this regime the
carrier is liable for loss of the goods and also for late delivery.

Limit of the liability: article 6 :

« The liability of the carrier for loss resulting from loss of or damage to goods according to the provisions
of article 5 is limited to an amount equivalent to 835 units of account per package or other shipping unit or
2.5 units of account per kilogram of gross weight of the goods lost or damaged, whichever is the higher. »

Article 6 b in case fo late delivery : « The liability of the carrier for delay in delivery according to the
provisions of article 5 is limited to an amount equivalent to two and a half times the freight payable for the
goods delayed, but not exceeding the total freight payable under the contract of carriage of goods by sea. »

Under this regime, the carrier is liable for lost of the goods, for damage to the goods and also for late
delivery. Hamburg rules adopted the SDR protocol, therefore a limitation of liability of the carrier as been
stipulated up to 845 SDR (special during right) for package or 2,5 SDR per Kg of gross weight in case of lost
or damage is the article 6 a) of the convention.
Limitation of liability of the carrier, of twice the price of freight of the delete goods is determined under
the article 6 b) in case of late delivery.
 3) The united nations convention of contract for the international carrying of goods wholly or partly
by sea

Dated 11 December 2008, “Rotterdam Rules” wanted to extend a modernize the existing of international
rules relating to contract of maritime carriage of goods.
Rotterdam Rules wanted to extend and modals existing international rules related to contract of maritime
carriage of goods.
The Rotterdam Rules are seeking to replace Hague Rules, Visby Rules and Hamburg Rules in order to
achieve the uniformity of law in the field of international Maritime carriage. Many countries have signed the
convention: France, the Netherlands, Norway, the USA…

It determines the liability of the carrier in case of loss, damage and late delivery.

The burden of the proof lays on the claimant: this is the main difference of the Rotterdam Rules with the
objective liability as defined by former international maritime conventions.

The claimant has to demonstrate that the event happened during the carriage by sea is not attributable to its
fault.

Or he has to prove that the event exists, even if the event happened during the sea carriage that exist in the
absence of fault, in certain situations listed in the article 17 §3 :
- act of war
- Strike
- Lockout
- stoppages,
- or restraints of labour;
- Fire on the ship;

Article 17:
« 1. The carrier is liable for loss of or damage to the goods, as well as for delay in delivery, if the claimant
proves that the loss, damage, or delay, or the event or circumstance that caused or contributed to it took
place during the period of the carrier’s responsibility as defined in chapter 4.
2. The carrier is relieved of all or part of its liability pursuant to paragraph 1 of this article if it proves that
the cause or one of the causes of the loss, damage, or delay is not attributable to its fault or to the fault of
any person referred to in article 18.
3. The carrier is also relieved of all or part of its liability pursuant to paragraph 1 of this article if,
alternatively to proving the absence of fault as provided in paragraph 2 of this article, it proves that one or
more of the following events or circumstances caused or contributed to the loss, damage, or delay: »

The article 17 of the convention determined the liability of the carrier in case of lost, damage or late
delivery. The burden of the proof lays on the claimant, this is the main difference of Rotterdam rules in
comparison with the objective liability as defined by former international law.
The claimant has demonstrated that the event happened during the carriage by sea cases of immunity of
the carrier exist even if the event happened during the sea carriage. They exist in the absent of fault of the
carrier, they exist in certain situations listed under article 17 §3, situation such ac act of war, strike, lock
out, perils of the see, act of good, late in defect (if not recoverable by divulgence).

The convention is obviously favorable to the sea carrier, in comparison with other convention. We must
question if a balanced is reached between different interests of reason.
 C. International air transport

The Montreal convention for the unification of certain rules, for international carrier by air dated 28 may
1999. The Montreal convention succeeded the Warsaw Convention and met a success. It has been ratified by
France, the UE, Canada, the USA, Japan…

It took several years between the signature and the ratification fo the convention so it came into force into
the UE in 2004.

The scope of application of the Montreal convention is an Air transport who’s place of departure and of
destination are situated in two different contracting states.

It got an objective liability of the carrier for damage to cargo occurring during air carriage. It also covers the
passengers and the luggages in case of transport of rewards.

The article 18 determines the conditions and exemptions of the liability of their carrier as destruction, loss of
damage of cargo.

The air carrier may not be held liable if the cause of the damage of of the loss is : article 18 2.

The article 18 determine the condition and exemption of liability of air carrier as to destruction lost or
damaged to cargo. The air carrier will not be held liable is the cause of damage or lost inherent defect of
cargo, or if defecting packing whose perform by those party or it happened an act of … or act of public
authority that happened often.

An act of public authority carried out with connection to the entry or exit or transit to cargo.

Article 18 — Damage to Cargo

« 1. The carrier is liable for damage sustained in the event of the destruction or loss of, or damage to, cargo
upon condition only that the event which caused the damage so sustained took place during the carriage by
air.

2. However, the carrier is not liable if and to the extent it proves that the destruction, or loss of, or damage
to, the cargo resulted from one or more of the following:

a) inherent defect, quality or vice of that cargo;

b) defective packing of that cargo performed by a person other than the carrier or its servants or agents;
c) an act of war or an armed conflict;
d) an act of public authority carried out in connection with the entry, exit or transit of the cargo »

D. International rail transport

On the 9th may 1980, was concluded a convention concerning international carriage by rail. That
convention was modified by protocol the 3rd of june 1999 and it came into force in france since 1st June
2006. The uniform rules concerning the contract of international carriage of goods by rail CIM under the
appendings B to the convention

Under the art 23 determine an objective liability of the carrier by rail, in case of loss or damage to cargo.
The article 29 determines that cargo can be help at lost 30 days after the day on which the delivery was
due to take place.

The article 30 determines that in case of loss of the goods, the indemnity maximum of 17 special
drawingrights per kg of weight of cargo shall be due to the owner of the cargo.

CHAPTER 3: THE DIFFERENT LEGAL DOCUMENTS FOR AN INTERNATIONAL TRANSPORT

I. Documents for an international road carriage : The consignment note or “way bill”

When you issue a waybill, what happens? What is the consequence? Issuing the waybill makes binding the
contract of land carriage. That means that as soon as the waybill is issued the contract is binding.

The article L.132-8 of the French code de commerce says that the consignment note shall form a
contract between the consigner, the carrier and the recipient, or between the consigner (the shipper), the
recipient, the freight forwarder and the carrier.

Carriers shall therefore have a direct claim for payment of the services against the consigner and
the recipient who shall act as guarantors for the payment of the transport costs. Any clause to the contrary
shall be deemed to be unwritten.

Consigner Consignee (or recipient)

Action for freight Action for freight
Road carrier

Book actions are not exclusive

What is the ratio legis (understanding the law)? (1) Honesty and (2) encouraging the business of transport
and the transport itself, therefore commerce.

Several mentions are compulsory for a domestic transport. The article L.132-9 lists them. The
consignment note must be dated, must specified the description of the cargo that is its nature, its weight
or the capacity of the goods transported, the capacity being their volume.

The waybill must specify the period within which the transport must be carried out. It shall indicate
the name of the consigner or sender or expeditor, the address of the freight forwarder through whom a
transport is to be carried out if there is any.
 The waybill must also mention the name of the consignee, the address and name of the carrier, its
SIREN number. It shall set out the price of the carriage and the compensation payable for late delivery.
That means that the amount of this negotiation is entirely negotiable, it should be consensual.

The consignment note must be signed by the consigner or sender or by the freight forwarder if
there is any. Then, in that case would sign in place the name of the consigner, acting in his name.

The waybill is compulsory for road carriage in or through France. Its absence is sanctioned by a fine.
The company is a moral person so what will be the real amount of the fine? Each time a moral person is
condemned in justice, the fine is 5 times the amount of the fine for a physical person.

The waybill is made in 5 copies for a national transport. If it is an international transport subject to
the CMR ratified by France, then the waybill or consignment note shall be made out in 3 original copies
signed by the sender and by the carrier. The signature may be replaced by the stamps of the sender and
the carrier.

The 1st copy shall be handed out to the consigner or sender. The 2 nd copy shall accompany the
goods. The 3rd copy shall be retained by the carrier.

The carrier has to keep the consignment note for a minimum of 2 years according to a French
regulation of the 9th of November 1999. But we must take into consideration the fiscal enquiries that could
happen. For fiscal reasons, it would be better that you keep it for 5 years in order to avoid any fine or
“redressement”.

For the international road carriage, one question can be asked: Is the consignment note the
equivalent of the contract of carriage by road? The answer is no = there are not equivalent. If we read the
article 4 of the CMR, the issuance of a waybill is only the confirmation of the contract of carriage. The
absence, irregularity or loss of the consignment note shall not affect the existence or the validity of the
contract of carriage which shall remain subject to the provisions of the CMR. So, the consignment note is
not identified to the contract of transport.

The CMR consignment note is subject to the same particulars (les mentions). The consignment note
shall mention the date of the consignment note and the place at which it is made out, the name and
address of the sender, of the carrier, of the consignee. It must mention the place and the date of taking
over of the goods and the place designated for delivery. It must mention the description of the nature of
the goods and the method of packing. If you carry dangerous goods, you must describe them precisely. The
international consignment note must also mention the number of packages, their special marks and
numbers, the gross weight of the goods or their quantity, the charges relating to the carriage such as the
costumed duties, such as other charges which may be incurred.

The international waybill under the CMR shall also show the requisite instructions for customs and
other formalities, plus a statement that the carriage is subject, notwithstanding any clause to the contrary,
to the provisions of the CMR. A statement that the transhipment is not allowed must be precised.
 The charges which the sender undertakes to pay must be mentioned. The amount of cash or
delivery charges is precise. A declaration of the value of the goods under the amount representing special
interests and the amount representing special interests in delivery may be mention if there is a shipment
of very expensive paintings.

Regarding the insurance of the goods, the sender’s instructions would be carefully put on the
consignment note. The agreed time limit within which the carriage is to be carried out shall also be put on
the consignment note. Is written also a list of documents given to the carrier = proof of their remittance
and the parties may enter in the consignment note any other particulars which they may deem useful.

The consignment note is also a way of proving certain details dealing with the contract of carriage
itself. That would help surveillance in the case of the occurrence of a risk.

II. Document for a sea carriage: the bill of lading or B/L

What is a bill of lading? What could be its definition? The bill of lading is a title of transport for any cargo
and determines the ownership of the goods listed on it. The bill of lading is therefore either a title of
ownership and a title of transport.

The bill of lading may be dedicated to port to port shipment, but the bill of lading may be used also
for multimodal transport (ex: a sea carriage and road haulage before the first port and a second one from
the port of arrival).

In this example, the bill of lading editor acts as a freight forwarder and he assumes, he undertakes
the same obligations. Should the French law be applicable, then, the freight forwarder would be subject to
a presumption of liability in case of damage or loss of cargo.

The bill of lading is a very precious document uneasy to forge. The bill of lading is a proof of
existence of the contract of transport, it is a proof of the obligations contracted by the parties. The bill of
lading is also a proof of the loading of the cargo inducing the liability of the road or the sea carrier.

Bill of ladings are issued by ship owners, ship operators. Ship operators are people who rent ships
per the conclusion of charter parties.

The person issuing the bill of lading are also non-vessal operators and common carriers (NVOCC).
There is also the shipment consolidators. Or also … who doest not own any vessal but function’s as carriers,
issuing bills of lading or air way bills and undertaking liability for the shipment they made.

SHIPPER NVOCC/shipment consolidators SEA CARRIER CONSIGNEE

To sum up = Ship owners do issue bills. Ship operators owing no ship but renting them through charter
parties will be able to issue bills of lading because they have the control of one or several ships. And
NVOCC would also issue bills of lading because they hire sea transporters to conduct maritime shippers.

We may have 2 main kinds of bill of ladings = the B/L may nominate the consignee. In this case, the
B/L is said not negotiable. The classical case is the negotiable B/L without the name of the consignee. It
means that the cargo may be redirected after or at the beginning of the sea transport. It may be redirected
into other hands onto another part of the globe. This is very practical for commodities such as cotton,
wool, coal… That could be very interesting for the holder of the B/L who negotiates it.

The B/L, when it doesn’t bear any name of consignee (when it is left in white) is said to order. In
that case, the ownership of the goods belongs to the order who transmits that property of the cargo by
handing over the B/L in signing on the reverse.

Several mentions are compulsory depending on the law applicable to the contract. If the B/L is
contracted under Hague Visby Rules, the document should comply with the article 3-3 of the said
convention which says that “after receiving goods into his charge, the carrier or the master or the agient of
the carrier shall, on demand of the shipper, issue to the shipper a bill of lading showing among other things
(a) the leading marks necessary for identification of the goods, (b) either the number of packages or pieces
or the quantity or weight as the case may be as furnished in writing by the shipper, (c) the apparent order
and condition of the goods.

What happens if the master detects that the marks, the number or the quantity doesn’t seem to be
accurate to the goods he receives? Then, you won’t show them in the bill of lading. You would only show in
the bill of lading what seems to be accurate, what seems to correspond to the reality of the cargos
remitted.

The bill of lading usually mentions the name of the shipper or consigner, the name of the consignee
only if it is a non-negotiable B/L, the port of loading and the port of discharge if it is a port to port
shipment, the place of receipt and the place of delivery of the goods in case of a multimodal transport, the
particulars of the goods given by the shipper under his liability.

Article 3§5 of Hague Visby Rules = the shipper shall be deemed to have guaranteed to the carrier
the accuracy at the time of shipment of the marks, number, quantity and weight as furnished by him and
the shipper indemnify the carrier against all loss, damages and expanses arising or resulting from
inaccuracies in such particulars. The right of the carrier to such indemnity shall in no way limit his
responsibility and liability under the contract of carriage to any person other than the shipper.

What does this really means?

Action in guarrentee Action

SHIPPER SEA CARRIER CONSIGNEE
List of items to be B/L
transported

CONTRACT OF SALE

The bill of lading mentions also the amount of freight either prepaid or to collect, possibly a
declaration of value in order to escape the limitations of liability of the sea carrier determined by the
article 4-5(a) and (d) of Hague and Visby Rules.
4-5 “(a) Unless the nature and value of such goods have been declared by the shipper before shipment and
inserted in the bill of lading, neither the carrier nor the ship shall in any event be or become liable for any
loss or damage to or in connection with the goods in an amount exceeding the equivalent of 666.67 units
of account per package or unit or units of account per kilo of gross weight of the goods lost or damaged,
whichever is the higher”
Savoir la method de calcul !!! article important ! et donc definition of unit of account.

The operation is as followed = for any loss or damage to or in connection with the goods, the
limitation would be either 666,67 units of account per package or unit, or the limit would be of 2 units of
account per kilogram or gross weight of the goods lost or damaged. This unit of account is the special
drawing rights as defined by the international monetary fund.

The bill of lading mentions usually a paramount clause which determines the applicable law ruling
the sea carriage. For example, it may nominate an international convention.

Bill of ladings often mention a jurisdiction clause that determines the competent tribunal to hear
the case if a dispute related to the sea carriage occurs.

The bill of lading bears the signature of the shipper, then, once the cargo is abroad, the stamps of
the ships and the signature of the consignee.

The reverse of the B/L details, through many clauses, the legal economy of the contract of sea
carriage.

The size of the characters makes then often unreadable. If it is unreadable, it would not be
considered as avoid (vois?) they would be opposable... That implies that you must do efforts to try and
read it even if they are tiny characters.

III. Document relating to an air carriage: the airway bill

Air way bill is made in 3 copies for an international flight. The air way bill is made in 5 copies for a French
domestic flight. The same as a consignment note. The electronic airway bills are possible to be issued since
the Montreal convention. The airway bill is like the bill of lading, a means of proof:
 1. The existence of a contract of air carriage concluded
2. It’s a proof of taking of the good by the air carrier
3. It a proof of the terms and condition of transport which is primordial

The immediately apparent losses and damages constitute a presumption of liability against the air carrier.
Ex: an immediate apparent loss would be seen simply by checking the number of packages at the landing.

For the unapparent losses or damages concerning the weight or concerning the dimensions or concerning
the state of the goods = these unapparent losses or damages must be ascertained contradictory at the
airport of loading in order to trigger the air carrier’s liability.

IV. Documents relating to a river carriage: the Barge B/L or the inland waterways B/L

Barge B/L are slighty different from maritime B/L. The main point is that they are not negotiable. Plus,
there are subject to domestic law = the Code civil and the Code de commerce regulations.