The carriage has taken place, the consignment has been unloaded and the carrier sends its invoice. The customer pays only part of it or nothing at all and notes that it has set off damage: the goods were damaged, part was missing or it arrived late. In transport this is not an unusual situation. Such a set-off will, however, stand up only if the customer genuinely has a provable claim against the carrier. In international road carriage that claim is assessed under the CMR Convention, which regulates the carrier’s liability in detail and in many respects in the carrier’s favour.
What the claim set off must satisfy
Where the contract of carriage is governed by Slovak law, the Commercial Code defines what may be set off:
Claims that can be pursued in court are capable of being set off. Set-off is not, however, precluded where a claim is time-barred, provided that limitation occurred only after the time when the claims became capable of being set off.
— Section 358 of the Commercial Code (unofficial English translation)
Moreover, a claim that is not yet due generally cannot be set off against a claim that is due (Section 359). Only mutual claims of the same parties may be set off, and the notice of set-off must identify with certainty what is being set off against what. We discuss the general rules in the question the debtor set off its own claim. In carriage, the rules of the Convention are added to them, and they decide whether a claim for damage arose at all and in what amount.
1. Is the carrier liable for the damage?
The carrier is liable for total or partial loss of the goods and for damage to them occurring between the taking over for carriage and delivery, and for delay in delivery (Article 17(1) CMR). It is relieved of liability where the damage was caused by the claimant or by the claimant’s instructions, where it arose from an inherent defect of the goods or from circumstances that the carrier could not avoid (Article 17(2)). It is also relieved in the case of special risks, for instance defective or missing packing, or loading, stowage or unloading carried out by the sender, the consignee or persons acting for them (Article 17(4)(b) and (c)). The burden of proving an exemption under Article 17(2) lies on the carrier; in the case of special risks it is enough for the carrier to show that the damage could have arisen from them, and the claimant must then prove the contrary (Article 18(1) and (2)).
The consignment note is therefore important for the carrier. If it made no reasoned reservations in it on taking over the goods, there is a presumption that the goods and the packing were in apparently good condition (Article 9(2)). If it did make reservations, for instance as to the packing or the manner of loading, these are among its strongest arguments.
2. Did the consignee make reservations in time?
If the consignee took over the consignment without ascertaining its condition together with the carrier or notifying the carrier of reservations, it is presumed to have received it in the condition described in the consignment note. For apparent losses and damage, reservations must be made at the latest on taking over; for losses and damage not apparent, in writing within seven days of delivery, not counting Sundays and public holidays (Article 30(1)). A claim for damage arising from delay in delivery may be pursued only if a written reservation was sent to the carrier within 21 days from the time the goods were placed at the consignee’s disposal (Article 30(3)). If the customer cannot produce the reservations, it must rebut the presumption by other evidence.
3. How large the damage may at most be
On loss, compensation is calculated by reference to the value of the goods at the place and time of taking over for carriage, according to the commodity exchange price or the current market price (Article 23(1) and (2)). It may not exceed 8.33 units of account, being the special drawing right of the International Monetary Fund, per kilogram of gross weight short (Article 23(3) and (7)). In addition, the carriage charges, customs duties and other charges incurred in respect of the carriage are refunded; no further damages are payable (Article 23(4)). On damage to the goods, the diminution in value is payable, subject to the same ceilings (Article 25). Where the damage arose from delay in delivery, the carrier pays at most the amount of the carriage charges (Article 23(5)). Higher compensation may be claimed only where the sender declared the value of the goods or a special interest in delivery in the consignment note (Article 23(6)). The limits do not apply where the carrier caused the damage wilfully or by such default as is considered equivalent to wilful misconduct under the law of the court (Article 29(1)).
A customer that deducts the entire value of the goods, a contractual penalty imposed on it by its own customer or lost profit may therefore be setting off more than the Convention allows. The difference between the sum set off and what the Convention permits remains unpaid freight charges.
4. Is the claim already time-barred?
Claims arising from carriage under the Convention generally become time-barred after one year; in the case of partial loss, damage or delay in delivery, time runs from the date of delivery of the goods (Article 32(1)). Under Article 32(4), time-barred claims may not be pursued by counterclaim or by way of defence either. The wording of the Convention is stricter here than the Commercial Code, which under the Section 358 quoted above does not preclude set-off with a claim that became time-barred later. What also matters, therefore, is when the customer gave notice of the set-off. If it did so only after the limitation period had expired, it faces the express wording of Article 32(4); how a court will reconcile the two rules must be assessed in the particular dispute. We explain how limitation of the freight charges themselves is calculated in the question limitation of freight charges under CMR.
How to proceed
- Reject the set-off in writing and ask for the supporting material: the reservations on delivery, the damage report, the calculation and documents evidencing the value of the goods.
- Compare them with the consignment note. Reservations as to packing or loading and the absence of reservations by the consignee may decide the dispute.
- Recalculate the ceiling by reference to weight and check whether the customer has set off damage that the Convention does not allow.
- Watch your own time limit. Your freight charges too become time-barred under the Convention, so do not delay the demand and the claim.
We recover unjustifiably reduced freight charges, including default interest, through our freight charge recovery service. Send us the order, the CMR consignment note, the invoice and the notice of set-off; we will assess to what extent the set-off stands up.
This article provides general legal information as at 12 September 2026. It does not constitute legal services or advice on your specific matter. Laws change and the details of your situation may differ. Check the appropriate course of action or contact us before making a decision.
