Sender packaging duty under Article 10 CMR: liability for damage and expenses, reservations, evidence and the distinction from load securing.
Mag. Bernhard Brandauer, Austrian attorney-at-law
BRANDAUER Rechtsanwälte
Mag. Bernhard Brandauer assists with the legal assessment of transport contracts, cargo damage and freight claims.
Inadequate packaging can raise several liability questions in CMR carriage. Under Article 10 CMR, the sender is liable to the carrier for damage to persons, equipment or other goods and for expenses caused by defective packing. Damage to the goods being carried is assessed under the liability rules in Articles 17 and 18 CMR as well. These different claims must be kept separate.
Packaging must suit the nature, condition and sensitivity of the goods. A note in the consignment note does not replace suitable packaging. Conversely, damaged packaging alone does not prove that it caused the transport loss. The relevant facts include the condition at takeover, the actual packing method, the damage pattern and the complete transport file.
This article deals exclusively with the sender’s packaging duty and the consequences of defective packing under the CMR. Load securing by the carrier, pure delivery delay and the carrier’s lien are separate issues. The overview of CMR and the transport contract helps organise the wider framework.
Identify whether the packaging appeared sound, was visibly defective or became questionable only after carriage.
For the first assessment, it matters whether the packaging was checked, objected to and clearly linked to the shipment.
Preserve the consignment note, packing list, photographs and packaging instructions. Place the takeover, first finding of damage and every later change to the shipment in chronological order.
Describe damaged cartons, missing padding, open closures or other concrete findings in the consignment note. Preserve the carrier’s response and photograph the condition before further carriage.
Keep the packaging and contents in the condition in which they were found. Record when the shipment was opened, what was first observed and when the carrier was informed in writing.
Article 10 CMR imposes liability on the sender towards the carrier. It covers damage to persons, equipment and other goods, as well as expenses caused by defective packing. The provision protects the carrier and other transport participants from the consequences of packaging that is inadequate for the particular goods.
The provision does not prescribe one packaging method for every shipment. Whether a defect exists depends on the goods, their weight, sensitivity, shape, planned handling and the transport conditions that could be recognised. Fragile or moisture-sensitive goods may require different precautions from robust and insensitive products.
The sender must therefore compare the actual goods with the selected packaging. Technical packaging specifications, packing instructions, earlier damage reports and agreements with the carrier may matter. General industry practice does not replace an assessment of the individual shipment.
Article 6(1)(f) CMR lists the usual description of the goods and the method of packing among the particulars in the consignment note. This information gives the carrier an initial picture of the shipment. It describes the packaging method, but does not automatically establish that the packaging was technically suitable.
Under Article 8 CMR, the carrier must check the apparent condition of the goods and their packaging. An external check is not a complete examination of material quality, internal padding or hidden closures. If a check is impossible, the reason for the reservation should be recorded clearly. Article 9 CMR attaches important presumptions about the condition at takeover to such reservations.
For the sender, this means that the packaging should be photographed before handover and linked to the packing list, shipping order and consignment note. Visible tears, openings, missing protective parts or unusual packing should be accompanied by a record of the carrier’s response. The page on consignment notes and documentation explains the role of these records in the transport file.
A packaging defect must be relevant to the specific consequence. A torn carton may leave the contents unprotected. Missing internal padding may contribute to breakage. A leaking covering may allow moisture to enter. The mere existence of a defect does not establish that it caused all or part of the loss.
The assessment must connect the damage pattern with the transport process. Consider takeover, transhipments, vibration, moisture, temperature, visible changes and the condition at delivery. Opening, reloading or repair may also affect the evidence. Each stage should be recorded with its time and the responsible person.
Packaging must also be distinguished from load securing. Packaging protects the goods within the package or unit. Load securing keeps the shipment stable on the vehicle. Both may interact, but they have different functions and potentially different responsible parties. The article on preserving evidence after transport damage explains which traces should be retained after delivery.
Article 10 CMR contains an important qualification: if the defect was apparent or known to the carrier when the goods were taken over and the carrier made no reservation, the sender’s liability for the covered damage and expenses under that provision does not apply. Whether this condition is met depends on the concrete finding and the communication at takeover.
A defect is not apparent merely because the packaging failed later. It must have been recognisable at takeover. An externally torn carton may be assessed differently from missing padding inside the package. The carrier’s experience and the possibility of a reasonable inspection may also matter.
A general entry such as “packaging defective” is less useful than a precise description. Identify the package, visible opening, missing protective layer or apparent moisture entry. The article on signatures and reservations in the CMR consignment note explains how such findings can be recorded in a traceable way.
The assessment needs a clear link between packaging, goods and carriage. Photograph the overall view, identification marks, closures, padding, edges and interior where this is possible before handover. The shipment number or another clear identifier should be visible in the images.
Packing instructions, material data, quality specifications, packing records, inspection reports and employee statements may add important evidence. These records should show which packaging was intended and how the actual shipment was prepared. A general description produced later cannot replace timely documentation.
After damage, cartons, pallets, film, padding and closures should be kept where possible. If operational or safety reasons require repacking, document the condition, reason, time and extent of the change before and after. The CMR liability check can structure the first collection of damage and documentation data.
Article 10 CMR concerns the sender’s liability to the carrier for the specified damage and expenses. This includes damage to persons, equipment or other goods. Examples may include damage to the vehicle or another shipment where inadequately packed goods opened or lost parts.
Where the goods being carried are damaged, the carrier’s liability under Article 17(1) CMR must first be considered. Article 17(4)(b) CMR identifies the lack of or defective condition of packing as a special risk for goods that, by their nature, are liable to waste or damage when not packed or defectively packed. Under the conditions in Article 18(2) CMR, this may support a presumption about the cause, while the claimant remains entitled to rebut it.
The transport file should therefore answer at least three separate questions: What packaging was required or customary? What specific defect existed? Which damage and expenses were caused by that defect? A single undifferentiated loss figure makes legal and financial assessment more difficult.
Confusing packaging with load securing: Protection of the package and fastening it to the vehicle are different issues.
Reading Article 10 CMR as a general damages rule: The provision concerns the sender’s liability to the carrier for the specified consequences of defective packing.
Photographing only the final damage: Without the condition at takeover, packing structure and identification, the cause often remains unclear.
Confusing apparent defect with later failure: The defect must have been apparent or known to the carrier at takeover for the Article 10 qualification to be examined.
Failing to allocate damage and expenses: Vehicle damage, damage to other goods, expenses and damage to the carried goods each need a traceable connection.
First preserve the consignment note, transport order, packing list, packaging instructions and handover photographs. Record who packed the goods, which materials were used, when the goods were taken over and when the damage first became visible. Keep original files and messages with their timestamps.
Then separate the possible consequences: damage to the carried goods, damage to other goods, equipment damage, personal injury and additional expenses. For each item, record which packaging feature may have caused it and which alternative causes still require examination.
If the carrier alleges defective packaging, the cause is disputed or a claim has been rejected, the complete transport file should be assessed. The shipping documents checklist helps prepare the relevant records.
The sender is liable to the carrier for damage to persons, equipment or other goods and for expenses caused by defective packing. The specific consequence and its causal link to the packaging must be assessed.
If the defect was apparent or known to the carrier at takeover and the carrier made no reservation, the qualification in Article 10 CMR must be examined. The decisive points are the concrete condition, recognisability and the records made at takeover.
No. Packaging protects the goods within the package. Load securing concerns fastening and stability on the vehicle. Both may contribute to a loss, but they must be established and allocated separately.
Important records include the consignment note, transport order, packing list, packaging instructions, handover photographs, packing and damage records, messages and documents showing the amount and cause of the individual damage and expenses. They should clearly relate to the same shipment.
The roles and framework of international carriage by road.
Particulars and reservations that organise the transport file.
First orientation on damage, cause and evidence.
Keep packaging, condition and the damage sequence traceable.
Briefly describe the route, the parties and the event. We will discuss which documents and next review step may be useful.
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