Facts
Court of Appeal decision
Supreme Court decision
Comment
The Supreme Court has considered the position of an insured cargo claimant and its insurer in respect of a road carrier under the Convention on Contracts for the International Carriage of Goods by Road (CMR).(1) The question was whether an indemnified cargo claimant can sue the carrier if the insured is subrogated to the rights of the assured and brings suit against the carrier for recovery of its outlay. The court held that it is not excluded that an insured cargo claimant is no longer allowed to claim in such cases.
Facts
SF was a buyer under a contract of sale with the delivery term "free on board Hong Kong". The delivery port was Antwerp. K was responsible for the CMR transportation from Antwerp to Le Havre in France, which was the final place of delivery. The goods were stolen while they were being transported by road. SS (as the sender) and SF (as the addressee) claimed against the road carrier on the basis of Article 17(1) of the CMR. SF was fully indemnified by its insurers. The Court of Appeal accepted SF's claim, but not that of SS.
Pursuant to Article 17(1), a carrier is liable for loss of (or damage to) goods that occurs between "the time when [it] takes over the goods and the time of delivery". Interpreting the system of the CMR, the court found that Article 17 gives both sender and addressee the right to claim against the carrier. However, the court must establish which party the carrier must indemnify. Therefore, the court must consider which party effectively suffered damage. The Court of Appeal held that SF was the party that had suffered damage on the basis of the contractual relationship.
Furthermore, the Court of Appeal held that it was unnecessary to consider whether SF could still claim against the road carrier (if fully indemnified by the latter's insurer) or whether only the insurer could claim against the carrier, as the insurer was subrogated to the rights of SF.
Supreme Court decision
The Supreme Court overruled the Court of Appeal by stating that it did not exclude the position that an insured, having been indemnified by its insurers, is no longer allowed to claim against the carrier, and that instead it is the insurers that shall claim against the carrier. Thus, the court must consider whether a party can claim against the road carrier when the former is fully indemnified by the latter's insurer or whether only the insurer can claim against the carrier.
Comment
The use of the term 'not excluded' in the judgment must be understood in light of Belgian procedural rules. Previously, the Supreme Court has decided that the question of whether a party which is indemnified by its insurer can make a claim depends on the merits of the case, rather than being a question of admissibility. The Court of Appeal appears to have ignored this issue, not only when considering whether the case was admissible, but also when judging its merits. Therefore, the Supreme Court emphasised that the question must be answered when the merits of the case are considered.
For further information on this topic please contact Dirk Noels or Pieter Neels at Kegels & Co by telephone (+32 3 257 1771), fax (+32 3 257 1474) or email ([email protected] or [email protected]).
Endnotes