Logistics: Bite-Size Insights - February 2024

In this edition of Logistics: Bitesize Insights, we consider the latest changes in regulations for moving goods from Northern Ireland, the rise of force majeure defences and a review of wilful misconduct under the CMR.

The Windsor Framework – new rules in effect from 31 January 2024. Have your business practices changed?

From 31 January 2024, changes have been made to the requirements for the movement of certain goods from Ireland and Northern Ireland to Great Britain. The changes relate to ‘qualifying Northern Ireland goods’ which are defined as goods that are processed in Northern Ireland and are in free circulation in the UK. Goods are ‘in free circulation’ when customs duties have been paid, the goods are not in a customs procedure (such as processing relief) and the goods are not in an authorised temporary storage facility.

If the qualifying goods are being moved from Northern Ireland directly to the rest of the UK, these goods will not be required to submit an export declaration or exit summary declarations.  Therefore, the goods shall be free of customs duties and VAT at the point of arrival within the UK. 

Exporters will no longer be required to fill out an import declaration if the qualifying goods move from Northern Ireland to Great Britain via the Republic of Ireland or pass through the Republic of Ireland.

There are some limited exceptions to these rules, such as: goods which are in an authorised temporary storage facility; goods which are under a customs special procedure; and goods which require a special license such as firearms, hazardous chemicals or endangered species. These goods will still require an export declaration.

Navigating the ever changing import / export rules and exemptions can be daunting.  However, hauliers will need to make sure that they are on top of the paperwork requirements before they even think about moving goods around the United Kingdom and the Republic of Ireland.  Getting it wrong can be a costly mistake…a mistake which insurers will no doubt exclude from cover under the insurance terms provided to haulier insureds.

Contacts: Brittany Ling, Shaan Burton

‘Force majeure’ – the golden ticket to contractual disputes?

The recent volatile market conditions have seen an increase in the use of the defence ‘force majeure’, sometimes with little thought as to what this actually means.  Recent strikes, driver shortages, extreme weather conditions, supply chain issues, and the lingering impacts from Brexit and COVID-19 have resulted in the use of force majeure becoming a common occurrence. 

We have seen an increase in forwarders’ claiming that their inability to perform their contractual obligations arose from an alleged force majeure event.  As such, they are seeking to avoid liability for failure to deliver goods or perform other services. 

Force majeure clauses are a useful, but restricted, defence and should be used with caution. Read our full article here.

Contact: Shaan Burton

Related item: ‘Force majeure’ – the golden ticket to contractual disputes?

Article 29 of the CMR - wilful misconduct; a handy reminder

If wilful misconduct is established in accordance with Article 29 of the CMR, the carrier cannot rely on the limits of liability in Article 23 of the CMR. 

Some states have a concept of ‘gross negligence’ which seems to be a much lighter test than wilful misconduct.  France and Germany are traditionally seen as jurisdictions in which it is easier to break limits under Article 29.  English law has no such concept and, along with the Netherlands, is seen as a “carrier friendly” jurisdiction.

So what is wilful misconduct?  Read here our review of the age old question of whether ignoring express instructions amounts to wilful misconduct.

Contact: Shaan Burton

Related item: Article 29 of the CMR - wilful misconduct; a handy reminder

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