Mrs. Tilche’s opinion Tilche
Lawyer and expert in transport law
Mrs. Marie Tilche is the former Editor-in-Chief of the Transport and Logistics Bulletin and a member of the “standard contract” working group. She kindly shares her opinion on the subject of stowage.
I Legal context:
Since November 14, 1986, the date of promulgation of the general standard contract, the three operations – loading, wedging and stowage – have always been combined and charged to the principal for shipments equal to or greater than 3T.
At the time of its last revision materialized by the decree of March 31, 2017, the strapping was added with the great displeasure of the “customers” as their task was limited to the loading stricto sensu, meaning the placing of the shipment on the tray, the professional dealing with the rest.
The freight forwarders objected that, if this were the case, they would handle shipments of 3T or more, with the shippers doing the work for lower volume shipments. Of course, they refused, so under the revised standard contract, the principal performs the loading/wedging/stowing.
It must be said, and the argument was not irrelevant, that in many cases the freight forwarder’s drop-off driver took care of these operations for granted.
This situation posed the problem of ancillary services which, if not agreed upon, engage the responsibility of the person benefiting from them, i.e. the principal (unless he objects). It is in this context that article 7.2 was drafted.
II sidebar: the benefits of the revision
If it seems favourable to the freight forwarder, article 7.2 of the standard contract also obliges him/her to proceed to the external inspection of the load before departure in order to preserve the goods and, in case of an apparent defect, to make precise and reasoned reserves.
When they are not accepted, they CAN refuse to take charge, but when it comes to traffic, they MUST.
The jurisprudence is strict on this commercially delicate obligation.
For shipments of three tons or less, the standard contract specified that the principal’s personnel assisting in the loading operations (or the consignee’s personnel assisting in the unloading) were deemed to be acting on behalf of and under the responsibility of the carrier.
Concerning the parallelism, the revised model contract states that the carrier or his agent who participates in the loading/wedging/stowing (or unloading) is supposed to act on behalf of and under the responsibility of the shipper (or the receiver).
This is a simple presumption which may be overturned by evidence to the contrary (by any means). This addition should, however, reduce disputes concerning the performance of an additional service not agreed upon.
*The most important innovation concerns the case where the carrier cannot be present during the loading of the goods. Indeed, the carrier is exonerated from loss or damage if he/she proves that the damage is due to operations carried out by the sender and that he/she was prevented from carrying out verifications “because of constraints imposed on the site by the sender”. At the time, this was essentially the case where the principal voluntarily keeps the carrier away (to avoid any temptations).
*At the time, there was no question of a pandemic; what is happening today to the obligation to verify the load? Taking into account the sanitary measures surrounding the delivery of shipments of less than three tons, one can reciprocally admit that the duty of verification would remain as long as the distance barrier conditions are respected (the sender or the recipient having to take all useful precautions first), which attenuates the carrier’s obligation or removes it when he/she is unable to comply with it due to Covid.
In the current context, where the term “endangerment” is often used, even though it is a highly regulated offence, the burden of proof that the appropriate measures have been taken would fall on the shipper or the recipient.
*Article 17-4 c) of the CMR classifies in the particular risks, likely to exonerate the carrier, the handling, loading, stowage by the shipper or the recipient (or the people acting on their behalf.
There is no question about the carrier. However, if there is a presumption that the damage resulted from it, the person entitled to the damage may prove the contrary (art. 18-2).
*The CMR is imperative and of strict law but, if a question arises which is not resolved by it (who must carry out the operation), it would be necessary to turn to the Rome I Regulation.
Its article 5, devoted to contracts concerning the transport of goods, takes up the classic connecting criteria: the country where the carrier has his habitual residence if the place of loading or unloading or the habitual residence of the shipper is also there.
Otherwise, the law of the country where the agreed place of delivery is located shall apply.