Rotterdam District Court 29 June 2016'

On 4 May 2013 the first five wagons containing acrylonitrile of a freight train derailed in Wetteren, Belgium, due to the driver missing a sign alerting him for switches where the train had to reduce speed. The damage following the derailment was significant. The first 5 wagons were carrying acrylonitrile, a toxic and flammable substance. The simultaneous perforation of the 3 tanks on 3 wagons released suddenly large quantities of the toxic and flammable product and it immediately burst into flames. Since there was risk of an explosion some 2,000 people living near the tracks were evacuated. On the day of the accident the train path was allocated to the railway undertaking SNCB/NMBS Logistics, the convoy was composed of 2 locomotives belonging to the undertaking DB Schenker Rail Nederland. The train driver was under a DB Schenker Rail Nederland contract. The two railway undertakings were in possession of a Belgian Part B safety certificate confirming that the two undertakings satisfy the necessary requirements for safe operation on the Belgian railway network. DSM claims compensation from the contractual carrier DB Schenker BTT and the actual/substitute carrier DB Schenker NL for damages suffered as a consequence of the casualty. This includes a claim for indemnification of the damages suffered by third parties which were compensated by DSM. The defendants put forward the defence that no other damages than those foreseen in Cotif-CIM and in the alternative under Title 8:18 of the Dutch Civil Code ("DCC") may be claimed because pursuant to articles 30 and 41 CotifCIM respectively articles 8:1578 and 8:1587 DCC further actions in respect of liability, on whatever grounds, are excluded. The Rotterdam court disagrees and applies the rules handed down by the Dutch Supreme Court with respect to road transport cases under CMR

The contractual framework

Between DSM Sourcing and DB Schenker BTT a Strategic Partnership Framework Agreement
for Rail Transport/Logistical Services (the "Framework Agreement") was concluded on 1 January 2011. Under this Framework Agreement DB Schenker BTT was appointed as the regular carrier by rail for all group companies of DSM. In an Appendix to the Framework Agreement DB Schenker NL is mentioned in the List of Sub-carriers. The Framework Agreement was governed exclusively by the laws of the Netherlands with the exception of its conflict of laws principles and the chosen place of jurisdiction was Rotterdam. Part of the Framework Agreement was that carriage of goods by rail was governed by the provisions of the CIM, the European Agreement Concerning the International Carriage of Dangerous Goods by Rail ("RID") and the Guidelines of European Chemical Industry Council ("CEFIC") — if conflicting in this order of precedence — unless and to the extent obligatory provisions of applicable country law prevail. Article 8 of the Purchase Conditions which were part of the Framework Agreement provided:

"a) Applicable transport conditions. Notwithstanding anything contained herein the carriage of Goods under a Purchase Order shall subject to the transport mode be governed by:

if by rail the provisions of the Convention Internationale concernant le transport des Marchandises par chemins de fey (CIM), the European Agreement Concerning the International Carriage of Dangerous Goods by Rail (RID) and the Guidelines of European Chemical Industry Council (Cefic) -if conflicting in this order of precedence- unless and to the extent obligatory provisions of applicable country law prevail.

b) General liability and indemnification. Unless and to the extent Carrier's liability is limited or restricted by the applicable treaties or regulations as mentioned above under 8.a., Carrier shall be liable and hold Customer and its affiliates (...) (herein referred to as "Indemnified Parties'), harmless from and indemnify them against any and all actual or contingent damage, loss, (personal) injury (including death), expense, cost, fine, penalty, claim, including reasonable attorney fees and litigation costs, suffered or incurred by or brought against indemnified Parties, resulting from or connected with the Purchase Order, its performance and the use and/or sale of Carrier's Services by Indemnified Parties or any third party, except to the extent that such damage, loss (personal) injury, expense, cost, fine, penalty or claim is caused by Customer's willful misconduct or gross negligence."

The court's decision

On rail carriage from Geleen (the Netherlands), through Belgium, to Hoek-Terneuzen (the Netherlands) Cotif-CIM does not compulsorily apply. CIM does apply as the regime chosen in the contract. The Framework Agreement also contains a choice of law clause providing for the application of Dutch law. For extra-contractual claims — claims not based on the contract of carriage — application of the Rome II Regulation leads to the applicability of Dutch law.

For the damage resulting from the loss of the rail wagons — that were part of the cargo offered for transport as recorded in the consignment note — DB Schenker BTT as carrier and DB Schenker NL as substitute carrier are liable. DB Schenker NL will be ordered to pay these damages because DSM — that was by law allowed to bring a claim either against the carrier or the substitute carrier - primarily claims them from DB Schenker NL.

The court holds that the mandatory liability regime for rail transport does not preclude such further damages being awarded. The court sees no reason to deviate in rail transport cases from the reasoning of the Dutch Supreme Court with respect to the CMR in road transport cases (Supreme Court rulings of 15 April 1994, ECLI:NL:HR:1994:2C1333 (Cargofoor/RTT) and 18 December 2015, ECLI:NL:HR:2015:3624 (Transfennica)). The regime laid down in Title III CIM and section 3 of Title 8.18 DCC, for interpretation purposes taking into account also their headings ("Liability"), construction and contents, only regard the liability for loss or damage resulting from the total or partial loss of, or damage to, the goods between the time of taking over of the goods and the time of delivery and for the loss or damage resulting from the transit period being exceeded. It is with a view to that liability that the final articles of those sets of rules stipulate that actions in respect of liability, on whatever grounds, may only be brought subject to the conditions and limitations laid down in CIM and Title 8.18 DCC respectively.

For the clean-up costs made and other damage suffered by DSM as a result of the accident DB Schenker NL is liable because the accident was caused by faults of the engine driver who was fulfilling his duties in its service, and DB Schenker BTT is liable because DB Schenker NL was performing its activities in the conduct of DB Schenker BTT's business and under its direction, with the proviso however that where certain damage must be qualified as damage resulting from loss of or damage to the goods or from exceeded transit time, DB Schenker will not be liable for such damage beyond the limits imposed by CIM and Title 8.18 DCC.

The clean-up costs have a sufficient causal connection with the rail accident. By offering its specialist help DSM did not unnecessarily incur costs but took its corporate responsibility. It would from a legal point of view be unacceptable to leave the costs thereof for DSM's own account because it would thus have contributed to the damage.

Comment

We believe the court's decision to follow the reasoning and decision of the Dutch Supreme Court in the CMR cases is correct. Since the CMR Convention to a large extent is built on the CIM Rules from 1952, especially the liability regulation and the provisions on successive carriage, it is not surprising that the Rotterdam court took the decisions of the Supreme Court as a guideline in this CIM case.