Nowadays, the importance of international transportation and logistics activities has increased since the commercial relations surpassed the national borders. The most common type of carriage of goods is undoubtedly the road transportation. As a matter of fact, 76.1% of goods are transported by road in Turkey, 69.5% in the USA and 45% in Europe. Taking this into account, to determine common standards between the states regarding the documents used in carriage of goods by road and the responsibility of the carrier, “Convention on The Contract For The International Carriage Of Goods By Road” (Convention Relative Au Contrat De Transport İnternational Per Marchandises Par Route) [“CMR”] was adopted by the United Nations Economic Commission for Europe (UNECE) in 1956, and was entered into force in 1961. The CMR, to which Turkey became a party with a reservation on Article 47 on October 31, 1995, has the force of law in the Turkish legal system.
In terms of the responsibility of the carrier in the carriage of goods by road, the provisions of the Turkish Commercial Code No. 6102 will apply if the transport is carried out within the borders of Turkey. The CMR, on the other hand, regulates the international carriage of goods by road, and it becomes applicable if the dispute regarding the transport has a foreign element within the meaning of the International Private and Procedural Law No. 5718. In a number of decisions of the 11th Chamber of the Court of Cassation on the subject, the Court stated that the provisions of the CMR apply with priority in the cases of international transportation.
This article summarizes the criteria for application of the CMR Convention:
- There must be a contract for the carriage of goods between the parties.
The first condition for the application of the CMR is conclusion of a contract for the carriage of goods between the parties. The goods do not have to be delivered to the carrier for the contract to be deemed established, but the carrier must have received the goods for the carrier's liability under the CMR to arise. In a related decision of the 11th Chamber of the Court of Cassation, the Court pointed out that the liability of the carrier should be determined within the framework of the general provisions if the goods were not received by the carrier, and the transport was never carried out.
- The subject of the contract of carriage must be goods; transport must be carried out for a fee and by a road vehicle.
The contract of carriage of goods is defined in the CMR as “every contract for the carriage of goods by land in vehicles for reward”. Based on this definition, the subject of the contract of carriage must be goods; transport must be carried out for a fee and by a road vehicle. The carriage of goods to which the CMR will not be applicable is stipulated as carriage performed under the terms of any international postal convention, funeral consignments, and furniture removal. On the other hand, the CMR will apply to the whole of the carriage, even if the vehicle loaded with goods is carried partly by other means of transport without unloading the vehicle.
- Transport should be carried out with the vehicles specified in the Convention.
For the purposes of the CMR, the concept of “vehicle” to carry goods by road covers motor vehicles, articulated vehicles, trailers, and semi-trailers, and excludes tractors.
- The place of taking over the goods and the place designated for delivery must be in different countries, and at least one of them must be subject to the CMR Convention.
Pursuant the provisions of the CMR, the place of taking over of the goods and the place designated for delivery must locate in two different countries. Moreover, at least one of these two countries must be a signatory party to the CMR. Only in such case the carriage of goods will be subject to the provisions of the CMR. The place of residence or nationality of the parties is not important in this respect.
In terms of the parties to the contract of carriage, the CMR will also be applicable where the transport is carried out by States or by governmental institutions or organizations alongside private law legal persons.
Lastly, the CMR obliges, with exceptions, the State parties not to change the provisions of the CMR by special agreements between them.
By Nihat Ozbek, Partner, and Baris Ulker, Senior Associate, Guleryuz & Partners
