Who is responsible for emission of the eCMR in road freight transport?

With the incipient digitalization of transport documents, the responsibility for issuing the eCMR raises doubts in international road freight transport. In particular, the question arises as to who is legally obliged to issue and provide the consignment note.

This point is of particular importance, since the CMR, whether in electronic or paper format, functions as proof of the contract of carriage and determines essential responsibilities between shipper, carrier and consignee.

Although not specifically stated, the Convention on the Contract for the International Carriage of Goods by Road (CMR Convention, 1956) and its Additional Protocol of 2008, which enables the use of eCMR, implies that the responsibility lies with the sender, as it is the sender who must provide the information and, in practice, who prepares the consignment note for signature.

We analyze what exactly is included in both regulations.

Legal significance of the CMR and its digital version (eCMR)

Both the paper CMR and the eCMR have the same function and legal validity: to document the contract of international carriage. According to Article 4 of the CMR Convention, the existence of the contract does not depend on the consignment note, but the consignment note acts as proof of the agreement between the parties.

The particularity of the eCMR is regulated in the Additional Protocol of February 20, 2008, which explicitly recognizes the electronic validity of the document and requires that the digital format guarantees authenticity, integrity, availability and traceability.

However, digitization does not change the key question: who should issue the CMR or eCMR.

Who has the legal obligation to issue the eCMR?

The CMR Convention establishes in detail the responsibility of each party in the generation of the consignment note, but does not make it mandatory for any of the agents.

The shipper: main responsible for the issuance of the eCMR

Article 6.1 of the CMR Convention stipulates that the consignment note must contain a number of particulars of the transport operation. According to Article 7.1, the shipper is responsible for the accuracy of this information and for damages resulting from incorrect or incomplete data.

From this point it is extrapolated that the sender (shipper) would be the primary obligor to issue the eCMR.

Thus, the shipper must provide the waybill to the carrier at the time of loading or prior to the start of transport. However, if the data provided in the CMR or eCMR is incorrect, the shipper:

• Responsible for damages caused to the carrier.
• Assumes additional costs arising from documentary errors
• May face claims if inaccurate information affects customs controls or transit

The carrier: signatory and verifier, but not issuer

Although the shipper issues the document, the carrier also has specific obligations.

According to Article 8.1, the carrier must check the number of packages, the marks and numbers on the packages and the apparent condition of the goods and packaging. If he is unable to verify any data or detects irregularities, he is allowed to make reservations/annotations on the CMR or eCMR itself.

The carrier is not obliged to issue the CMR or eCMR, but must accept it, sign it and, where appropriate, include annotations to protect against discrepancies.

The addressee: no paper in the issuance of the document

The consignee only intervenes in the final phase of the transport. Article 13.1 gives him the right to demand delivery of the goods and to receive the consignment note.

However, the recipient does not participate in the issuance of the CMR or eCMR; its role is limited to receipt and final signature.

With all that has been analyzed, we can affirm that the obligation to document the shipment is shared as far as the signature is concerned, but the duty to initiate and provide the information for the consignment note falls on the sender, unless otherwise agreed.

But what about eCMR?

Issuance of electronic waybill

In the aforementioned Additional Protocol to the CMR Convention, regarding the electronic consignment note or eCMR, it is stated that “The parties involved in the performance of the contract of carriage shall agree on the procedures and modes of performance thereof to conform to the provisions of this Protocol and the Convention”.

In other words, it leaves it up to the agreements between shipper and carrier who should issue the eCMR. However, it stresses the need for the procedures (method, guarantee, delivery confirmation…) to be mentioned in the eCMR and to be easily verified.

Mandatory content of the CMR and eCMR

In any case, the consignment note, whether in paper or digital format, must include, as a minimum, the information provided for in Article 6.1 of the CMR Convention, among which the following stand out:

• Place and date of writing
• Name and address of sender
• Name and address of carrier
• Place and date of taking over the goods
• Name and address of recipient and place of delivery
• Description of the nature of the goods and the method of packaging, as well as the normal description of the goods if they are dangerous.
• Number of packages, their particular markings and their numbers
• Quantity of goods, expressed in gross weight or otherwise
• Transportation costs
• Instructions required for customs and other formalities
• Indication that the transport is subject to the regime established by the CMR Convention.

The eCMR format must contain exactly the same information, with the addition of the technological requirements of the 2008 Additional Protocol: the ability to verify signatures, record modifications and guarantee the availability of the document at all times.

It is also established that the parties may add any additional information they wish.

Emission eCMR: technical and legal requirements

For the issuance of the eCMR to be legally valid, the system used by the parties must comply with the principles of Article 3 of the Additional Protocol, which states that the eCMR will only be valid if all parties use electronic signatures.

Thus, the eCMR must meet the following requirements:

Authenticity

The system must be able to reliably identify the parties signing the document.

Integrity of content

Any subsequent modification must be recorded, avoiding unauthorized alterations to the contract of carriage.

Accessibility

The eCMR must be available to shipper, carrier, consignee and competent authorities throughout the entire operation.

Security

The platforms used for eCMR issuance must protect the data from improper access or manipulation.

The electronic signatures used must comply with Regulation (EU) 910/2014 or eIDAS, ensuring their legal validity.

eCMR with full legal and regulatory assurance

As we have seen throughout the post, the regulations are not entirely clear with respect to eCMR issuance liability.

In fact, in the “Study on the Degree of Implementation of eCMR in Spain: challenges and benefits of document digitalization in freight transport”, companies in the sector highlight the need for regulation to include this aspect and clarify it in order to promote the adoption of eCMR.companies in the sector highlight the need for the regulation to include this aspect and clarify it in order to promote the adoption of eCMR.

Once again, this obligation is delegated to the agreements between the shipper and the carrier, although if we consider the obligation to provide the information that must be reflected in the consignment note, this falls on the sender, which would be the shipper.

In any case, it is the content of the letter and the correct application of electronic signatures that will give full validity to the eCMR. It is therefore essential to have a solution that is fully compliant with all regulations.

The FIELDEAS Track and Trace document digitalization module, SeamLess eCMRguarantees each and every one of the requirements that have been analyzed in this post, grouping all documents in the same platform.