The TransFollow system does fulfil the legal provisions of the CMR Convention (and the Protocol)
Under the auspices of the International Road Union (IRU) a transport of goods by road took place in 19-20 January 2017, that was accompanied by an electronic CMR consignment note, produced on the TransFollow-system. The IRU jointly with Spanish International Road Carrier’s Association (ASTIC²) and FTNR, its French counterpart organised this pioneering experience.
In a journey between Spain and France, both countries having ratified the 2008 Protocol, by means of a lorry loaded with a consignment of fruit in Cartaya (Huelva, Spain), carrying it to Perpignan (France) while covered by an electronic CMR consignment note without any problem, being therefore a success. The companies involved, and others which have already made announcements to this effect, will be joining this new system in the coming months, while the use of this is expected to be extended over 2017 and subsequent years to other countries, such as those in BENELUX³.
Given that the CMR consignment note, which has traditionally been paper-based, represents a set of rights and duties –a legal status- for the companies involved in each journey, it is very important for the software used for these new services to be compliant from a legal standpoint with the CMR Convention, which remains the international regulatory framework for them. Such an enquiry as this, which specifically refers to the TransFollow system adopted and recommended by the IRU, is what I propose to tackle over the next few pages. To this end, I have taken account, not only of the valuable contributions made by renowned jurists in the November 2016 English edition4 of this very magazine, “Weg & Wagen”, but also of the explanation of how the system works, which my colleague Mrs. Shula Stibbe (the author of one of those contributions) offered us at the meeting of our IRU-CAJ held in Rouen (France) on 18 May 2016.
2. Legal validity of this new form of making contracts
As is common knowledge, contracts for the international carriage of goods by road are regulated by the Convention known by its acronym, namely the “CMR Convention”, which was adopted in Geneva on 19 May 1956. This convention gave rise to a document known as “consignment note”, which essentially serves as: a) a proof that a transportation contract exists and of the terms and conditions that were agreed for it; b) as a receipt for the goods, which the carrier hands to the sender; and c) for tracking and tracing the consignment (in case of discordances, reservations may be entered on taking over and / or delivery). The Convention, according to its early date, initially envisaged such a document being issued in paper format. IRU has an approved a standard form (A4 size, split into numbered boxes, etc.), of an extended use, in two versions: 1976 and 2007.
Only in the last years it became legally possible to use an electronic consignment note under the Protocol that was adopted by the U. N. in Geneva on 20 February 2008 and in force since 5 June 2011. This has already been ratified by 11 European countries: Bulgaria, Denmark, Estonia, France, Latvia, Lithuania, the Netherlands, the Czech Republic, Slovakia, Spain and Switzerland. It has also been signed by Belgium, Finland, Norway and Sweden, which suggests that it will soon be ratified by these countries as well: ratification is a compulsory legal step prior to using the eCMR in practice.
Apart from certain technical provisions, the Protocol basically establishes:
a) that the electronic consignment note is perfectly valid from a legal point of view as a means of proof or evidence before Courts of Justice (see first paragraph).
b) that everything which the CMR Convention provides with respect to consignment notes on paper and the use of them, including their value as proof, applies in the same way when an electronic consignment note has been issued.
3. The “TransFollow” system, adopted by IRU
As I pointed out earlier, I already had the chance to learn about thesoftware developed over two or three years by the Dutch company TransFollow, and see for myself how it works, at a demonstration by its legal adviser Mrs. Shula Stibbe during the annual meeting of the IRU-CAJ in 2016. On the whole my opinion was favourable. Later on it was made official that this is the system or software which IRU has adopted and generally recommends. Finally I checked how the Spanish version of the system works during a new demonstration at the headquarters of ASTIC (Madrid), where this was done interactively and included the opportunity to ask the IT expert who was helping us with some questions, whereupon my view was confirmed in a satisfactory way.
What this entailed, therefore, was checking on whether this IRU electronic system satisfactorily performs the legal functions which the CMR Convention associates with the traditional paper-based consignment note.
I shall thus begin by offering a broad description of how it works in straightforward language and avoid IT jargon (which I am not an expert in) and from there I shall attempt to conclude how compliant it is on the legal side (which is something that I am more familiar with).
3.1 How an eCMR consignment note is created
The first thing to do by anybody concerned in a transport operation (the carrier, the sender, etc.) is to accede to the TransFollow system, in other words to register on it. Users have a portal available for them, which is a link that connects IRUTransFollow system and each company, whereby you use a password or account number to download the application from the portal each time. For the sake of security (both of the system and the electronic consignment note involved) each company must designate and identify one or more specific persons from among its employees to be the only ones who are authorised to use it.
In principle it is the sender (who knows his own goods: weight, value, etc. thus transportation requirements, deadline for delivery, etc.) who prepares the electronic consignment note: one for each journey. This consignment note is configured as a kind of file or record identified by an absolute number which the system itself sets (i. e. not a number which the particular company would like to assign), in other words there can’t be two records in the whole world that bear the same number (as you might expect, it is a number with many figures in it). After the consignment note has been filled out, the sender puts on it his electronic signature and sends it to the server, where it is stored.
From that moment onwards nobody can tamper with or change what it states without leaving a trace. The carrier instantly sees the consignment note on his terminal and, if they both agree with its content, they send it in electronically signed form to the sender.
Obviously both on a computer (a desktop or a laptop) or an equivalent mobile telephone (smartphone, etc.) connected to the Internet data are entered using an ordinary keyboard such as all of these devices (even the smallest of them) typically have. Whatever has been typed is always afterwards electronically signed and in this way sent to the central server. With the TransFollow program, the signature consists of a “QR” code, which is a grid containing the information in the shape of black and white squares. The sender views the signature, authorises it and the vehicle starts its journey, while the consignment note then shows the reference “loaded”.
3.2 Compliance with the CMR-treaty
All details concerning the journey are entered in the consignment note as clauses or stipulations agreed by the contracting parties. This includes all statements and agreements which the CMR Convention establishes should appear on the document, whether always or if any. This includes:
*) basic requirements for each journey (art. 6.1)
- place and date of issue (art. 6.1,a), including the time (which the Convention does not require);
- name, email (idem) and address of sender, carrier and consignee (art. 6.1, b, c and e);
- place of loading and place of delivery (art. 6.1,d);
- description of the goods (art. 6.1,f) and its weight (art. 6.1,h); etc.
**) all kinds of other clauses agreed between the contracting parties, some of which are expressly envisaged in the CMR Convention and others are not: for example the delay for transportation (art. 6.2,f), routes, temperature (art. 18.4), customs offices to use and instructions for dealing with them (art. 6.1,j), using open and not not covered with a sheet of tarpaulin vehicles (art. 17.4,a), subject to a particular jurisdiction or an arbitration -perhaps a form of institutional arbitration very commonly used in Spain: the so-called “Juntas Arbitrales del Transporte” (Transport Arbitration Boards) (art. 33); who must carry out loading, stowage and battening down of goods (and the reverse processes for these at the place of destination), who has to pay for carriage and transport costs (art. 6.2,b), compensation for volume (art. 6.1,h in fine), whether the railway or ferries can be used (art. 2); whether the freight can be switched to some other vehicle or not (art. 6.2,a); cash on delivery (arts. 6.2,c and 21) and payment methods that are accepted in such a case, statements of value (arts. 6.2,d and 24) and remarks of particular concern on delivery (arts. 6.2,d and art. 26), steps to be taken in case of perishable goods (art. 18.4) or livestock (art. 18.5), etc.
All kinds of (scanned) documentation can be attached (art. 6.2,g). Including photographs.
Reservations can also be added, either at the place of taking over
- by the driver- (arts. 7.2 and 8.2 CMR) and at the place of delivery
- by the consignee- (art. 30.1), both in text and photographic form, for example if the cargo is incomplete or defective, etc. In the case of a photograph of goods taken by the driver and attached to the “shipment record”, it would be validated by the sender and it would go through to the server with such validation (which serves as the acceptance envisaged in art. 8.2, in fine of the CMR).
Finally the electronic consignment note can also show the participation of sub-contracted carriers (art. 3 CMR) via the straightforward means of registering them on the system too. Then, their names will appear in the record as well.
When the goods arrive at the place of destination, the consignee also enters his signature. He can do this for example on the screen of the driver’s mobile device (just as everyone is used to do whenever a courier delivers a parcel to us). He may also enter his possible reservations, as already explained. At that moment of delivery, a message appears on the shipment record giving the time and date, and the journey’s cycle reaches its end. Actually the consignee can consult everything about the journey directly from his registration on the system, including the departure of the lorry from the point of origin with the goods that he is expecting.
Also in my view the possibility of multiple copies as envisaged in art. 5 CMR is properly complied with (in this case any number of contracting parties can access the same consignment note).
I therefore consider that the IRU’s electronic consignment note system (eCMR) satisfies the legal provisions which the CMR Convention associates with consignment note traditionally issued in paper-based format.
4. The eCMR and the “control document” which certain countries require
National authorities can sometimes require the issuing of documents –in paper- for control of transport activities (for example to check whether every operator is licensed to carry on his business or to check what vehicles he uses, or whether legislation concerning maximum weights are followed, etc.). For example in Spain, according to decision (“orden”) by Ministry of Transport (“Fomento”) number FOM/2861/2012 dated 13 December 2012.
In that sense, even though the CMR Convention and its consignment note refer only to commercial relations under private law within the context of contracts for the transport of goods by road, the use of electronic consignment note like a “control document” does not appear to be a problem either.
Not only Public Services are more and more used to electronic communications with citizens (procedural laws expressly provide for or impose it), and any police officer or transport inspector can electronically connect with a register to check data (e. g. if a vehicle has or hasnot a compulsory insurance), but also it is always possible to carry a “pocket printer” on board every vehicle which could easily issue a copy on paper to be shown and even handed to anybody entitled to request it. Moreover, the TransFollow system has the option of creating a PDF document that features the contents of the electronic shipment record and looks very similar to the classic CMR paper consignment note which is more familiar to most users.
5. A prior agreement between the carrier and their customer
Although actually the mere act of registering on the TransFollow system in itself implies consenting to the use thereof by whoever registers on it, art. 5.1 of the aforementioned 2008 Protocol provides that parties to transport contracts must beforehand agree on the procedures and means of performance thereof, especially as regards the method of preparing and sending the electronic consignment note and its guarantee of integrity, etc.
To comply with this provision, and even more so bearing in mind any subsequent intervention of Courts of justice, arbitrators, etc. to settle disputes, it is a good idea for a prior written agreement to be signed between the sender and the carrier wherein they agree on using electronic consignment notes and specify the terms and conditions thereof: the use of certain software such as the TransFollow system, etc.
This might consist of a text to be sent by email or be part of an ongoing contract that applies for a certain period, for example one or two years, and which is tacitly extendable save where notice is given, etc. It is advisable for this to be consulted with specialist professionals.
Our IRU-CAJ (Commission on Legal Affairs) is at the final stages of drafting the text of a standard agreement of this kind which IRU will recommend to be signed.
1 Author of the books El Contrato de Transporte Internacional–CMR or “The CMR Contract for International Transport” (Tecnos, Madrid, 1996), which is unique in Spain regarding all aspects of the Convention, and El Convenio CMR, or “The CMR Convention” (Marge Books, Barcelona, 2012), and others concerning road transport, as well as many magazine articles. He chaired the international ad hoc group charged with drafting the new IRU standard CMR consignment note (2007), which was approved at the General Assembly of this worldwide organisation.
2 Asociación del Transporte Internacional por Carretera. Madrid (Spain)
3 According to what we were told by Mr. Jeftic Zeljko, Secretary of the IRU Commission on Services to Hauliers (CSE), at the most recent session of our IRU Committee on Legal Affairs (CAJ), held in Geneva on 24 February 2017.