4/24
Case CIM
Can a formal report be used for damage to wagons or loss of use?
For the cross-border carriage of goods between two COTIF signatory states, a contract of carriage in accordance with Article 1 § 1 CIM is concluded. On that basis, under Article 43 CIM a claim may be made against the carrier concerned (Article 45 § 1 CIM) in the event of partial loss of the goods (Article 42 § 1 CIM), for any damage to the goods which is discovered, presumed or alleged by the party entitled (Article 32 CIM), or for exceeding the transit period (Article 33 CIM). The legal basis for this is the contract of carriage for the period between acceptance and delivery of the goods (Article 23 § 1 CIM) and the CIT Agreement on the relationships between carriers in international rail freight traffic (AIM) for the settlement of damages between the carriers involved.
Concerning the exceeding of the transit period as set out under Article 16 CIM, in accordance with § 4 this is extended by the duration of the goods’ stay in the custody of the carrier caused without any fault of the carrier. For instance, this would be the case for circumstances preventing carriage in accordance with Article 20 CIM. Should the carrier be liable for the exceeding of the transit period under Article 23 CIM (e.g. due to a technical issue at the border station), under Article 33 § 1 CIM compensation of up to four times the carriage charge is due.
A different legal scenario applies to the use of wagons under the contract of use (Article 1 CUV) and the General Contract of Use for wagons (GCU). For damage to wagons caused by the user RU where the wagon, including its components, is lost or damaged, then GCU article 22.1 and GCU article 23.1 + Appendix 5 apply. For loss of use of wagons due to repair, on the other hand, GCU article 13.3 and Appendix 6 apply, wherein compensation for loss of use of empty or loaded wagons where the transit period is exceeded is limited to a flat rate (GCU Appendix 6 and GCU article 2).
The second scenario only applies to the contract of use and indirect damage to the user RU due to loss of use of the wagon during repair – here GCU article 13.3 and Appendix 6 apply. However, this does not concern the customer’s wagon leasing costs under the leasing contract concluded under national law. It is therefore not legally possible to make a claim under the contract of carriage for loss of use of the wagon during repair.