When interpreting a contract, Courts look at the substance rather than the working of the contract. So, a Carrier's liability would be significantly wider; it would be liable for the performance of the carriage and would be exposed to claims by anyone having a right to claim for damage, loss or delay of the goods in contract, tort of bailment, subject to the right and duties to which the contract is under applicable mandatory regulation. The liability of a carrier is regulated in article 17 and 18 of the CMR, limited to 8.33 SDR per kilo, but breakable in case of willful
misconduct. The Carrier is liable for partial loss that occurred but with limitation of liability (assuming no willful misconduct). In case of qualifying as a fright forwarder, liability is narrower, and the article 11 of FENEX-condition shall apply.
Freight Forwarder In case of qualification as a freight forwarder, international conventions would not apply since there is no uniform international law on this subject. Therefore, FENEX-conditions are applicable. All operations and activities are made at principal's expense and risk and forwarder is not liable for any damage unless the principal proves the damage was caused by fault or negligence. Furthermore, the forwarder's liability is limited to 10,000 SDR per occurrence or 4 SDR per kilogram damaged cargo, and never exceeds the invoice value of the goods.
Where deemed to be Carrier, in that case, the tribunal will apply the liability regime from CMR convention. CMR convention applies even though the vehicle containing goods is carried over part of the journey by sea, which was also affirmed by the Bristish Court of Appeal that held that CMR applies to a road leg where the carriage of a goods in contract includes more types of transport. The liability regime of art. 17 of CMR will apply.
コメント