The Stainalloy/Tele Tegelen case
It regularly occurs that a road carrier is unable to deliver the goods. This may be due to an actual impossibility to unload the goods or due to a rejection of the goods by the addressee. In these cases, the question comes up as of which moment the goods should be regarded as being delivered in the legal sense. In other words, when does the period of responsibility of the carrier for the goods under the contract of carriage come to an end?
Recently, the Supreme Court of the Netherlands handed down a judgment (Stainalloy/Tele Tegelen) in which this subject of "delivery was revisited and clarified. Although this judgment was rendered under Dutch national law (art. 8:1095 Dutch Civil Code), the judgment is also relevant for the concept of delivery under the CMR, as the Supreme Court in its judgment refers to its previous judgment of 24 March 1995 (S&S 1995, 74), in which the delivery concept of Article 17 (1) CMR was centered on. The Dutch national concept of delivery apparently does not differ from the concept under the CMR according to the Supreme Court.
Supreme Court decision of 24 March 1995 (NJ 1996/317)
In its judgment of 24 March 1995 the Supreme Court had already dealt with the concept of delivery under the CMR. The Supreme Court held in the Mars case that delivery as in Article 17(1) CMR does not necessarily require an actual handing over or unloading of the goods. According to the Supreme Court this would be unreasonable in cases in which the addressee is responsible for the unloading of the goods. In these cases, the moment of factual control is considered decisive. As of the moment the addressee obtains the actual control of the goods the goods are delivered and the period of responsibility ends. It is furthermore possible that the goods continue to be in possession of the carrier after delivery based on another contract than the contract of carriage.
Supreme Court decision 17 February 2012 (NJ 2012/289) - the facts
The shipper, Stainalloy, instructed Tele Tegelen, the carrier, to transport stainless steel pipes from Geleen, the Netherlands to Stainalloy’s premises in Sliedrecht, the Netherlands. Two waybills were issued, as two trucks and trailers were used to transport the pipes to Sliedrecht.
The two trailers with pipes did arrive at their destination. The first trailer was unloaded, the goods were delivered and the waybill was accordingly signed by Stainalloy. The second, however, has never been unloaded by the addressee. The addressee informed the driver that the total weight of the shipment at the second trailer was higher than had been agreed and that there was no space available for the steel pipes to be stored at the Stainalloy premises and therefore the truck could not be unloaded. Consequently, the driver of the second truck agreed to park the trailer outside the premises in the public road in order to unload the shipment at a later date. Stainalloy and the carrier agreed that Stainalloy would pay a daily compensation of EUR 85.- per day for the prolonged use of the trailer until the truck was actually unloaded. It never came that far, since the goods were stolen from where the truck was parked.
No copy of the consignment note had been signed by Stainalloy for the receipt of the goods of the second trailer.
Stainalloy asserted that it had not given any instructions to the carrier to park the trailer at the side in the public road and that therefore the goods had not been delivered and the period of responsibility of the carrier under the contract of carriage had never ended. The carrier asserted that by parking the trailer with the goods outside the premises, the goods were delivered and that the goods continued to be in possession of the carrier under a rental/use contract of the trailer, as the addressee had agreed to rent the trailer and paid a daily fee for the rent.
The District Court and the Court of Appeal
The District Court of Roermond considered the shipment of the second truck to be delivered. The court regarded the moment that the trailer had been parked at the roadside decisive.
The Court of Appeal Den Bosch however required Stainalloy to prove that the trailer was parked at the roadside without any instruction from the addressee. According to the Court of Appeal Stainalloy succeeded in proving this and the goods had accordingly not been delivered by parking the goods outside the premises of the addressee. The goods had not continued to be in the possession of the carrier under a different contract than the contract of carriage, despite the daily amount paid for the use of the truck.
The Supreme Court
In its decision handed down on 17 February 2012 the Supreme Court now makes it for the first time unequivocally clear that the concept of delivery for road transportation must be based on a “consensus between the addressee and the carrier, in the sense that the carrier surrenders control over the goods with the express or tacit approval of the addressee and also provides the opportunity for the addressee to take actual control over the goods.”1 It will entirely depend on the contract of carriage and the facts of the case whether the goods have been delivered.
By and large, this judgment seems to be in line with how the concept of delivery in the CMR is viewed outside the Netherlands. 2
For the case at hand this meant that the judgment of the Court of Appeal was upheld. The steel pipes had not been delivered as the addressee succeeded in proving that no instructions had been given to the carrier to park the trailer unguarded, outside the premises in the public road. Moreover, the second waybill had not been signed by the addressee, and the receipt of the goods had also not been confirmed by any other means.
This case law places a carrier into a difficult position every time the driver (and thus the carrier) is confronted with an addressee refusing to accept the goods or whenever it is impossible or impractical to unload the goods, as consensus about acceptance of the goods by the addressee seems to be a necessary requirement for delivery.
It will be challenging for a carrier to prove in court that an addressee has consented to accept delivery. This judgment therefore once again emphasizes that it is important for a carrier to require a signature on the consignment note or to require a different form of proof of receipt in order to be able to prove later that the goods were delivered. It can also be agreed in the contract of carriage, what a carrier is allowed to do with the goods should it prove impossible to immediately unload at destination. If all of this is impossible, the carrier should always request instructions from the shipper as provided for in article 14/15 CMR and act accordingly.
It is questionable whether the outcome of this case would have been different should the carrier have parked the trailer simply at the premises of the addressee. The carrier would still have needed some form of proof that the goods were parked at the premises of the addressee in such a way that the addressee willingly took control over the goods. In most Dutch case law in which a road carrier left the goods at the premises of the addressee, because of the impossibility or difficulty to unload, the carrier has been held liable under the contract of carriage for the loss or damage of these goods.3