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Carrier’s Liabilities Under Cmr Contracts According To Turkish Law
Contract for the International Carriage of Goods by Road (CMR Convention) is an international agreement that is mandatory and applicable to all international road transport of goods for consideration, creating a single legal area for the countries where it is valid. The CMR Convention was adopted by Turkey on 04 January 1995 and as it contains more specific provisions compared to the Turkish Commercial Code No.6102, it takes precedence in application. In Turkey, the CMR Convention governs the relevant contracts, establishing the liability of carriers. This comprehensive article aims to provide a detailed guide to carrier's liability in CMR contracts within the Turkish legal context
In order for the CMR Convention to be applicable to them, the contract to be made must possess certain characteristics:
1. Nature of the Contract: In the contract established through mutual consent and declaration of wills of the parties, a consideration in the form of carrier's fee for the performance of the transportation obligation is necessary. Carriages based on gratuitous acts are not subject to the CMR Convention. (CMR Art. 1/1)
2. International Carriage: The goods subject to the carriage contract must be received and delivered in two different countries. It is also required that at least one of these countries is a party to the CMR Convention. The nationality or location of the parties involved are not relevant for the application of the Convention.
3. Road Transport: CMR contracts specifically pertain to goods transported by road.As an exception, the provisions remain applicable even in case of the goods being transported by waterway, railway, or airway if the goods have not been unloaded from the vehicle. (CMR Art. 2)
4. Commercial Activity: The contract must be entered into as part of the sender's or the carrier's commercial activities. CMR contracts are primarily intended to regulate commercial transportation rather than private or personal transportation.
5. The Subject of Transportation: It regulates the subject of transportation to be goods and not passengers, as well as the exclusion of postal services, furniture, personal belongings, and funeral transportation from the scope of the Convention.
6. Nature of the Vehicle: In transports subject to the Convention, the vehicles to be used are stated by reference to the 1949 Convention on Road Traffic , to which Turkey is also a party.According to the 1949 Convention, the term "vehicle" includes motor vehicles, trailers, and semi-trailers, which must also be intended for the transportation of either people or goods.
It's important to note that the CMR is an international convention ratified by numerous countries. Each participating country may have specific laws and regulations regarding implementing the CMR within its jurisdiction. Therefore, it is advisable to consult the relevant national legislation to determine CMR contracts' precise applicability and requirements in a particular jurisdiction.
Understanding the carrier's liability in CMR contracts is crucial for both carriers and shippers, as it establishes the framework for accountability and protection of interests. This article provides an overview of the steps involved in the carrier's liability in CMR contracts in Turkey, shedding light on the key aspects stakeholders should be aware of to navigate the legal landscape effectively.
The Principle of Strict Liability
In Turkey, carriers are generally subject to strict liability for loss, damage, or delay to the goods during transportation under CMR contracts. Strict liability means that carriers are held accountable for any harm suffered by the goods unless they can demonstrate that the loss or damage resulted from circumstances beyond their control, which could not have been avoided even with reasonable care. This principle significantly burdens carriers to implement robust risk management strategies and exercise due diligence throughout transportation.
Burden of Proof
In CMR contracts, carriers bear the burden of proof when claiming an exemption from liability. To successfully assert an exemption, carriers must demonstrate that the loss, damage, or delay arose from factors beyond their control, such as natural disasters, accidents, or the actions of third parties. Collecting and preserving relevant evidence, such as delivery receipts, inspection reports, and communication records, is crucial for carriers to substantiate their claims effectively.
Maximum Liability Limit
CMR contracts in Turkey impose a maximum limit on the carrier's liability for loss or damage to the goods. As of the time of writing, this limit is set at 8.33 Special Drawing Rights (SDRs) per kilogram of the gross weight of the goods affected. The SDR is an international reserve asset established by the International Monetary Fund (IMF) and is commonly used as a unit of account in international trade. Carriers should be aware of this liability limit and evaluate whether additional insurance coverage is necessary to protect against potential losses exceeding the prescribed threshold.
Mandatory Insurance Requirements
According to the Turkish law, carriers engaging in road transportation must maintain adequate insurance coverage to address potential liability claims. This insurance must cover any loss, damage, or delay arising from the carrier's activities. Carriers must ensure that their insurance policies comply with the legal requirements and are sufficient to cover potential liabilities under CMR contracts. Failure to maintain adequate insurance may lead to legal and financial consequences, including penalties and possible suspension of operating licenses.
Exceptions to Liability
While carriers are generally held strictly liable for loss, damage, or delay, specific exceptions recognized under the CMR may limit their liability. These exceptions include circumstances where the loss, damage, or delay results from:
a. Inherent nature of the goods: Carriers may be exempt from liability if they are prone to natural deterioration or inherent characteristics contributing to their loss or damage.
b. Insufficient or insufficient packaging: If the shipper's packaging fails to meet industry standards or is defective, carriers may not be held liable for resulting damage or loss.
c. Acts or omissions of the shipper: If the shipper's actions or instructions contribute to the loss, damage, or delay, carriers may have grounds for exemption from liability.
d. Acts of war or natural disasters: If the loss, damage, or delay is a direct result of acts of war, civil unrest, or natural disasters beyond the carrier's control, carriers may be exempt from liability.
Carriers need to familiarize themselves with these exceptions and understand their limitations. Carriers should take appropriate measures to inform shippers about any specific requirements or limitations related to transporting certain goods.
Notice of Claims
When loss, damage, or delay to the goods occurs, the Convention grants certain rights and obligations to the parties. Especially the party related to the goods, as the party incurring losses, should pay attention to comply with the conditions required by the Convention in order to assert their rights:
1. Notification: The carrier must be notified promptly in writing about any loss, damage, or delay to the goods.
2. Inspection: The carrier has the right to inspect the goods to assess the extent of the loss or damage.
3. Written claim: The claimant (usually the sender or consignee) must submit a written claim to the carrier, providing all necessary information and supporting documentation related to the loss, damage, or delay.
4. Timeframe: The CMR establishes specific time limits for submitting claims. In Turkey, the claim must be made within seven days from the date of delivery for visible loss or damage or within 21 days from the delivery date for hidden loss or damage. For delays, the claim must be made within 60 days from the date the goods should have been delivered.
5. Carrier's response: The carrier must respond to the claim within a reasonable timeframe, usually within a specified number of days.
6. Settlement or legal action: If the carrier accepts liability, the parties can negotiate a settlement, which may involve compensation for the loss, damage, or delay. If the carrier denies liability or a satisfactory settlement cannot be reached, the claimant may choose to take legal action to seek compensation through the appropriate legal channels.
Limitation Period for Legal Actions
Under Turkish law, there is a limitation period within which legal actions related to CMR contracts must be initiated. Generally, the limitation period is one year starting from the date of delivery or the scheduled delivery date of the goods. Initiating legal proceedings after the expiration of the limitation period may result in the loss of the shipper's right to seek compensation. Carriers should be mindful of this limitation period and ensure timely resolution of potential disputes.
Jurisdiction and Dispute Resolution
CMR contracts in Turkey allow parties to select the jurisdiction for resolving disputes. Carriers should include a clear jurisdiction clause in their CMR contracts, designating the appropriate court to handle potential legal actions. Additionally, parties may consider alternative dispute resolution mechanisms, such as arbitration or mediation, to resolve disputes that minimize costs and time efficiently.
Conclusion
In summary, understanding carrier liability is crucial when dealing with CMR contracts in Turkey. The principle of strict liability places a significant burden on carriers to ensure the safe transportation of goods. Carriers must meet the burden of proof when claiming exemptions from liability, maintain adequate insurance coverage, be aware of the maximum liability limit, and familiarize themselves with exceptions to liability. Additionally, carriers must comply with notice requirements, limitation periods, and careful consideration of jurisdiction and dispute resolution mechanisms. By adhering to these legal considerations, carriers can mitigate risks, protect their interests, and ensure the successful execution of the CMR contracts in Turkey.
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Demet OZKAYA COLGECEN
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Sinan KÜLEKÇİ
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Deniz KAFKASLIOGLU
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