5 Tips for Consginees to remember

"Ignorance of the law shall exempt no one from liability"

The principal is built in civil law of every democratic country. Logistics industry is no exception and is also governed by laws - international conventions which prevail over national laws. Many consignees are confident that just because they receive only a couple of shipments per year, they are relieved from knowing the laws and their duties. Even if being aware of main principles or scope of liability would help to avoid conflicts and would ease off settlement of losses.

What must be remembered by anyone accepting cargo?

Consignee - the person who is financially responsible for the receipt of shipment. International conventions such as Geneva CMR or Hague-Visby terms or Montreal agreement define not only carrier’s but also consignee’s responsibilities. Every convention is applied to handle different means of transportation and it’s easy to get lost among them, especially if you are dealing with multi-modal voyage. Nevertheless, the main principal applicable for consignee remains the same, therefore, we will review consignee`s duties mainly set out in CMR convention.

World Wide Web is full of advises how to properly prepare goods for delivery. Unfortunately, there is little information how they should be received. Therefore, mistakes in this particular stage of transportation usually end up in conflict situations. Thus, the consignee should remember:

Do not hurry

There is no law that names how long receipt of the cargo procedure should take. On the other hand, article 30.1 of convention reminds that it’s consignee’s duty to inspect condition of the goods together with carrier. If the driver is late to another pick-up, it can't be a reason to skip inspection. Be aware that if the driver is entitled to skip cargo inspection on loading by using arguments like "I haven't been allowed to oversee loading process", the consignee has only the right to accept or reject shipment. Otherwise, the claim might be accepted "only if the defects are not visible during unloading" as stated by Supreme Court of Lithuania.

Although, it should be noted, that a practice exists in European law, when shipment inspection can be delayed by mutual agreement of both parties - consignee and driver, representing carrier. Belgium court has noted in one case that consignee`s record in waybill "inspection is not possible, the results will be submitted later" and later message with a results of inspection including the circumstance that the driver hadn't objected to are not sufficient evidence that the driver has been properly informed about the defects.

Do not sign

Do not sign waybill, until you've inspected all goods. The moment of receipt of goods is associated with consignee’s signature in the CMR waybill. This practice is established in article 13.1 of convention: "the consignee shall be entitled to require the carrier to deliver to him, against a receipt, the second copy of the consignment note and the goods". The Germany court (09/12/1990) expressed that "waybill with consignee’s signature is a proof that delivery has been completed" and goods are considered to be accepted in perfect condition. In that case, consignee loses his right to ground any claims by presumption of carrier`s fault and any loss discovered in the future as well as its circumstances and relationship with carriage will have to be proven by consignee. That makes the situation extremely challenging for consignee in case of evident damage.

Inspect the goods

Article 30.1 of CMR convention sets a strict procedure that "reservations giving a general indication of the loss or damage" should be sent "not later than the time of delivery in the case of apparent loss or damage". Then it is not compulsory to detail every single defect. "It’s not obligatory to note the extent of loss or basis of liability and etc. It’s sufficient to state that conditions of consignment are not appropriate" said Supreme Court of Lithuania. Nevertheless, United Nations have emphasized in CMR commentary that "even if it’s not necessary to detail every single defect, the description of loss can't be limited to a simple phrase that cargo is damaged".

The consignee is not obliged to detail every single damaged corner of the received package or pallet. Then if the commodities have been received in damaged condition, it should be expected that their inspection will take time. The person who is receiving cargo must identify the exact number of damaged units. This is important if you want to avoid a dispute over whether units which haven't been identified upon inspection were damaged during transportation or later during storage in warehouse. The same provision was applied by Dutch Court of Appeal (1978/472). The consignee noted in waybill that 55 packages were damaged upon receipt of goods. Later the claim was submitted for additional 135 damaged packages. The court dismissed the additional claim because it opposes to the results of initial inspection.

Furthermore, it should be noted, that reservations can be submitted in various forms: by adding a note to both copies of waybill or filling damage report or ever in verbal form. "There are no specific requirements for a form of consignee’s reservation due to damaged shipment. Such reclamation can be submitted in writing and verbal or any other form like making a note in both copies of waybill", - told Supreme court of Lithuania. You should be aware that reservation made in verbal form or by concerted actions might not be sufficient evidence for third parties like court or insurer.

Take pictures

Pictures might be your only friend when an ordinary accident turns into a conflict over the scale of the loss. A single photo can help you avoid legal proceedings with a sub-contractor and answer many doubtful questions. If you have suspicions that the cargo you are receiving might be damaged, take a picture of the package itself and how the packages are stored in the mean of transportation and also capture damaged units themselves. "The initial presumption that consignment has been delivered in perfect condition can be denied and the fact that it has been damaged during transportation proven by <...> photos" - has been confirmed by Supreme Court of Lithuania (2A-1372-661/2012).

Not apparent damage

It’s true that convention regulates notifications about not apparent damage or loss. It is also important to remember that not apparent damage is such a defect which is visible only after unpacking the package. If the exterior of the package is damaged or crushed, the driver must be informed about potential loss upon the time of delivery. Although, if the goods are broken without any trace of damage on the exterior of the package, the sub-contractor must be informed about such fact within seven days, excluding Sundays and national holidays in the consignees country. It’s worth to remember that in case of not apparent damage, it’s the duty of the consignee to prove the relationship between the damaged goods and transportation. Despite that, the requirements and criteria are lower for such relationship to be proven and it is enough to showcase that it is likely that such defect might have occurred during transportation. Nevertheless, the carrier still holds the right to dismiss such accusations by providing contrary arguments.