ABSTRACT
Although Article 13.1 entitles the consignee to sue the carrier, Article 13 contains a particular rule aimed at a particular problem;1 and it is widely assumed2 that the CMR contains no general or definitive rule governing the identity of the person or persons entitled to sue the carrier. Subject to Article 13, courts tend to apply the lex fori,3 and the identity of other persons entitled to sue the carrier, notably the sender, is considered below.4 The first sentence of Article 13.1 deals with the consignee’s right to delivery of the goods,5 and continues:
Prima facie, the consignee entitled to sue under Article 13.1 is the person mentioned as consignee in the consignment note,6 whether the original consignee or the person to whom that consignee has ordered the goods to be delivered,7 and whether the consignee has suffered loss or not.8 In practice, it is less simple, as in some CMR states national law may entertain the argument that behind the nominal consignee is the ‘‘real’’ consignee, the person really entitled to sue.9 Whoever that is, under Article 13.1 the consignee is entitled to sue, whether or not the consignee has taken delivery of the goods or of the second consignment note.10 The only condition is that the charges must have been paid: Article 13.2.11
1. BGH 21.12.73 (1975) 10 ETL 91, 94-95: below, 40a. 2. OLG Karlsruhe 24.5.67, 1967 ULC 289, 295, quoted below, 41; Rodie`re, para. 573. 3. E.g., in France, Art 101 c.com. In Germany, see BGH 21.12.73 (1975) ETL 91, 95. Moreover, if
the consignee has assigned the right of action (in this instance to the sender), the validity of this assignment is governed by the appropriate national law (in this instance the law of the carrier’s place of business): BGH 28.4.1988 (1989) 24 ETL 89.
