In two recent cases in which Legalis Advocaten was involved, the importance of the difference between ‘delivering’ and ‘unloading’ became clear once again.
In accordance with the general principle of responsibility as laid down in Art. 17.1 CMR Convention, the carriage is terminated by the DELIVERY (LIVRAISON) of the goods.
Delivery, within the meaning of transport law and the CMR Convention, is the act whereby the carrier, with the express or implied consent of the consignee, releases the custody of the goods and allows the latter to exercise effective custody and control over those goods.
This does not necessarily require the UNLOADING (DECHARGEMENT) of the goods. Delivery is a legal concept which cannot be equated with the physical unloading of goods. Delivery occurs when the recipient of the goods becomes the disposer of the goods.
In the case of tanker transport, for example, it is often assumed that delivery takes place when the goods are accepted by the consignee after an initial weighing, approved sampling, questioning of the carrier and visual inspection by the consignee’s foreman. After all, at that moment the consignee acquires control over the cargo and takes charge of the unloading activities.
This means that the duties of the carrier with regard to unloading should be agreed upon precisely. Only when the carrier has undertaken to also take care of unloading, will there be a delivery which follows the unloading.
In this connection, reference may be made to the General Terms and Conditions of FEBETRA and TRANSPORT AND LOGISTICS FLANDERS, which stipulate that unloading is not provided for in the commitments taken on by the carrier, but that, unless otherwise notified, unloading shall be carried out by the consignee.
The main exceptions to the above are the specific situations of Art. 14.1 and Art.15.1 of the CMR Convention. These are situations where the performance of the contract of carriage becomes impossible for the carrier during the carriage or when circumstances prevent delivery at the place of destination. In such a case, the responsibility of the carrier, who continues to hold the goods pending further instructions, does not cease until unloading.
To summarise, delivery is a legal concept and unloading a factual one. Delivery may precede unloading or follow it, depending on the terms of the contract.
