Dr. Marco Remiorz, Dabelstein & Passehl, Germany
The Koblenz Regional Court recently decided that according to the Convention on the Contract for the International Carriage of Goods by Road (CMR), a carrier’s direct claims against the consignee are barred, even where the sender (as the ordering party) faces insolvency. This is because the regulations in Article 13(2) of the CMR set out a final provision with regard to the carrier’s direct remuneration claims against the consignee.
Facts
A German entrepreneur (the defendant and consignee) bought wine from a French wine-trading company. The cross-border wine shipment from France to Germany was performed by the plaintiff, who had been instructed by the wine seller. On receiving the single deliveries the German customer always paid the wine’s purchase price on time and in full.
Subsequently, insolvency proceedings were initiated against the French wine company. Thereon the plaintiff demanded payment with regard to unpaid freight invoices directly from the German entrepreneur. The plaintiff argued that his direct claim against the receiver of the delivery resulted from applicable stipulations of French commercial law. Since the CMR does not address the matter of a carrier’s direct claim against the consignee in the event of the ordering party’s insolvency, this regulatory gap must be filled according to applicable national law. As the carrier and the place of taking over the goods were located in France, French commercial law should have been applicable. However, the defendant argued that there was no regulatory gap to fill by falling back on French commercial law, because the CMR stipulates a final provision in Article 13(2) with regard to the carrier’s direct claims against the consignee.
Decision
The court agreed with the defendant’s argument and dismissed the claim on the basis that there was no regulatory gap to be filled by way of falling back on French law. The court stressed that Article 13(2) sets out a final provision with regard to the carrier’s direct remuneration claims against the consignee. According to Article 13(2), the carrier is entitled to claim remuneration directly against the consignee only if the consignee has exercised its rights under Article 13(1) by requiring that the carrier, against a receipt, deliver the second copy of the consignment note and the goods. According to the court, this stipulation clearly states that a CMR transport contract is designed to benefit third parties; it is not a contract at the expense of third parties. Only if the consignee has exercised its rights under Article 13(1), will it be obliged to pay the outstanding freight costs, as set out in the respective waybill. Article 13(2) sets out a final provision with regard to the carrier’s payment claims against the consignee who has not placed an order with the carrier. According to the court, there is no regulatory gap in the CMR, as the claim for payment of the freight is expressly referred to in Article 13(2) and linked to specific terms. The CMR qualified the freight contract as a contract to the benefit of a third party, in accordance with the prevailing European view. Unlike in France, where freight contracts are designed as multi-party agreements and may therefore constitute a contract at the expense of a third party (eg, the consignee), most European jurisdictions assume that only a party that has actually entered into an agreement (eg, a freight contract) must face contractual obligations under this agreement.
The court pointed out that if the CMR had been designed in accordance with the French system, the stipulations of Article 13(2) would have been unnecessary. In this case, the carrier’s direct claim against the consignee resulted from the consignee’s capacity as a contracting party, regardless of its delivery request as set out in Article 13(1). The court concluded that under the CMR, direct claims regarding payment for the carrier’s freight against the consignee could be assumed only in the event of specific terms that cannot be extended. Therefore, the stipulations in Article 13(2) set out a final provision. According to the court, this would also apply in the event of the insolvency of the ordering party as the direct contracting party of the carrier. Thus, the carrier had no direct claims against the consignee as the receiver of the delivery.
Comment
The decision is not yet legally binding. The court followed the prevailing view of German legislation. The decision clarifies that the design of a CMR freight contract should be for the benefit of third parties (the consignee as the receiver of the goods). Only under the specific conditions of Article 13 (1) can the carrier have a direct claim with regard to payment for freight against the consignee.