Legal
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Where uncertainty arises as to whether or not the documents have been correctly presented for Customs clearance, the court ruled that it is the responsibility of the carrier performing the transport to provide clarification. It was noted that where there was uncertainty as to whether or not a Customs clearance had been correctly carried out, the carrier could seek instructions from its customer. However, the responsibility for ensuring that Customs clearance has been undertaken remains with the carrier and cannot be transferred to the customer. Since Brexit, BIFA has received a steady stream of questions from concerned Members about what to do should drivers not stop at the frontier. The issues have occurred both when drivers failed to stop at UK Customs and at EU Customs Border Control Points. The BIFA’s view is that it is still important for Members to contract with hauliers who will comply with Customs procedures
The forwarder disputed this claim arguing that: • The carrier was responsible according to article 11 of the CMR Convention relative au contrat de transport international de merchandises par route (CMR), having used the delivered Customs documents incorrectly; • It was the responsibility of the carrier to present the Customs documents when exiting Switzerland;
commodities have been varied, including Sanitary/phyto-sanitary (SPS), excise and general cargoes. In the UK, HM Revenue & Customs (HMRC) is more likely to impose penalties on importers and/or Customs agents than the haulier for such breaches described above. However, the judgment does open the door to successful legal action being taken against the haulier by one of the previously mentioned parties in order to recover any financial penalties that they may have incurred. Contracting with hauliers BIFA’s view is that it is still important for Members to contract with hauliers who will comply with Customs procedures – if necessary, including relevant clauses in any contracts. However, it is equally important that Members ensure that hauliers are provided with the correct documentation and clear instructions relating to both export and import clearances. BIFA would like to thank the International Law Organisation for allowing the reproduction of the specific information relative to the legal case referred to in this article.
• It was not proven that the carrier had produced the documents to Customs.
Court judgment The court’s judgment was that the driver had only presented the documents to a person at the frontier who took care of road tax, and that the carrier was responsible for the failure to produce the documents. The judgment emphasised the important role truckers have relative to Customs responsibilities in the international roadfreight environment. The judgment focused on article 11 of the CMR Convention to ensure that delivered Customs documents are correctly presented for Customs clearance, and that the client is not obliged to give specific instruction as to how this is to be done at the frontier post.
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February 2023
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