The importance of delivery notes

We regularly have to deal with debt collection cases where delivery receipts are missing. Simply because the carrier in question no longer has the proof of delivery available. Not always a problem in itself, it only becomes a problem when a discussion arises between supplier and buyer whether the goods have actually been delivered. Carriers have a retention obligation of at least 1 year. But what about that?

Proof of delivery
The consignee is legally obliged to issue a receipt immediately after delivery of the goods. Usually the consignee does this by signing on the waybill for receipt. The recipient’s signature provides proof of receipt, also known as proof of delivery (POD). Proof of receipt is of great importance to the carrier. Without the receipt, it is difficult for the carrier to defend itself against a consignee who denies having received the goods or who claims that the goods are incomplete or damaged. Not every signature provides a valid receipt.

Signing for receipt on a packing list usually does not count as a receipt. In practice, people also draw on the screens of a portable device (PDA or smartphone). Although a signature on such a screen is a form of proof, there are quite a few snags. Also, the consignee usually does not receive a copy of the consignment note signed by him. Suppose the addressee afterwards denies having signed, then it becomes difficult to prove the contrary. The electronic signature on the screen does not have the qualities that, according to the legislator, electronic signatures must meet in order to form hard evidence.

Original or copy?
But now the question: do you have to keep the original paper consignment note, or can you keep the document digitized by means of a scanner? Just to be clear: a scanned copy has the status of copy.

Evidence in any form may be provided in civil proceedings, as long as the judge is satisfied that the material provided clearly substantiates what the parties say about it. The judge will therefore never investigate beforehand whether a scanned document or a signature on a screen is genuine, but will include the supplied documents/data in the evidence. Only if one of the parties makes a substantiated objection, will the court examine the authenticity of the evidence. Some forms of evidence provide binding evidence for parties. Discussion about this proof is therefore not possible, unless there are doubts about the establishment of that proof.

A private deed provides binding evidence between the parties involved. A private deed is any document that is signed by one or both parties. A signed consignment note is such a private deed, a copy (scan, PDF, etc.) of the consignment note is not.
Claims under the contract of carriage become time-barred after one year (with the exception of claims for damages under CMR transport, where the damage was caused intentionally by the carrier: this claim lapses after three years). We therefore recommend that you keep the original consignment note for at least the limitation period. After all, if you have evidence, it is annoying in legal proceedings if the other party can undermine the evidence because it is not original. That is why it is important to keep originals.

Statute of limitations
In principle, claims expire after 1 year, unless there is intent or gross negligence; then a limitation period of three years applies. The term is measured:

a. in the event of partial loss, damage or delay, from the day the goods are delivered;

b. in the case of total loss, from the 30th day after the expiry of the stipulated period or, failing that, from the 60th day after the carrier has taken possession of the goods;

c. in all other cases, from three months after the conclusion of the contract of carriage. Also take into account the retention period of 7 years prescribed by the tax authorities.

Retention period
Entrepreneurs are obliged to keep the books and other data carriers relating to the company for a period of seven years. The same term applies for export transactions. Also consider evidence to show that the goods have actually been exported. So, for example, copies of signed waybills, the so-called ‚confirmation of exit‘ or the transport statement. When you have scanned these documents, the scanned version is also legally valid and the paper version no longer needs to be kept. Please note that there is always a backup for the scanned documents and that in some cases the tax authorities will still have to see the paper version. For the complete file, we advise exporters to keep all documents for a period of 7 years.

Evidence of the standard waybill in the event of damage or shortages
The consignment note as proof that damage has occurred during transport. Good in, good out. That is the basic principle of transport. If damage or shortcomings occur during transport, the carrier is liable for this – barring force majeure and special risks. But how can it be determined whether the damage occurred during transport? The carrier can claim that the goods, for example a few boxes of trousers, were already damaged before they entered the truck. The sender, in turn, claims that there was nothing wrong with the pants. How can someone prove that the damage is not for his account? Using the standard waybill. The standard waybill is the pre-eminent means of proof. The proof position of sender, carrier and consignee stands or falls with the reservations and remarks made on the waybill.

Who should provide the proof?
This will be explained by means of an example. It should be borne in mind that the claimant must provide proof to the claimant („whoever claims, proves“). In other words, the claimant (the sender or the consignee) must prove the condition of the goods and the number of packages that the carrier took receipt of and subsequently delivered.

An example of the proof function of the consignment note
Suppose a shipment arrives damaged at the customer (addressee): In order to be able to recover the damage from the carrier, the sender must prove that the goods have been damaged during transport. In other words, the sender must prove that he presented the goods to the carrier in good condition. The sender can almost exclusively provide this proof with a clean bill of lading. In other words, a consignment note on which the carrier has made no comments about the external condition (damage) when taking delivery of the goods.

Evidence by the carrier
If the carrier makes a remark on the consignment note regarding the external condition upon receipt of the goods, he thereby proves that they were delivered damaged. Although the sender may try to prove that the goods were not damaged when the carrier took delivery of them, in practice this proves to be virtually impossible. Conversely, of course, the carrier, who accepted damaged goods but made no comment about this, will be virtually unable to prove that they had been delivered damaged. He is therefore liable for the damage, because he cannot refute by means of the consignment note that the damage occurred during transport.

Written reservation
It is therefore very important that the carrier (his driver) checks the shipment on the basis of the data on the waybill and notes any defects on the waybill. The sender must therefore allow the driver to enter a comment on the consignment note. Reporting afterwards that the driver had seen that the packaging was wet and had said this to the sender, does not help. It must be noted on the consignment note.

Evidence by the addressee
If the consignee receives the goods visibly damaged, he must make a reservation in writing (on the waybill) and thus formally notify the carrier of the damage. This reservation should not be a general reservation. But on delivery to the consignee, the damage can of course also be invisible, for example because the goods are packed. That is why there is a proof scheme for externally visible damage and non externally visible damage.

Visible damage
If the goods are visibly damaged (for example, the boxes are wet), the consignee must make the reservation immediately upon receipt. If he does not do this, the carrier is deemed to have delivered the goods as described in the consignment note.

Invisible damage
If the damage is not visible outwardly, the consignee must inform the carrier in writing within one week of acceptance of the goods. Again, if he does not do this within the stipulated period, the carrier is deemed to have delivered the goods as described in the consignment note (ie undamaged).

Even after the 7-day period in the event of non-visible damage, the consignee can claim that the goods arrived damaged. However, the burden of proof that the damage occurred during transport now rests with the consignee rather than the carrier. This makes it a lot more difficult for the addressee to collect his claim.

So always ensure that you provide the signed consignment note, the proof of delivery, for longer outstanding claims. In this way you avoid problems and you can always prove that goods have arrived – in good order – and you are not confronted with a missing burden of proof when it is necessary in a debt collection case. Do you want to know more? Contact us on  088-5054700 of mail us at info@modintcredit.com.

Sources:
Evofenedex
Stichting Vervoeradres (SVA)