Background
Facts
Decision
Comment


A recent decision by the District Court of Middelburg(1) sheds light on the pitfalls a cargo owner may encounter in the case of loss of goods. When filing a claim against the parties contracted for the international carriage of goods by road, a cargo owner or its subrogated insurer should carefully consider the contracts concluded and the evidence available. In the following case, the subrogated cargo insurer was left empty-handed.

Background

Under Dutch law, a freight forwarding agent or freight forwarder is a party that enters into contracts of carriage for or on behalf of its principal. The freight forwarder is (in principle) not liable towards its principal in case of loss, damage or delay in transit. The forwarder is required to immediately provide the principal with all documents and information available that can be of assistance in recovering the damages. It must also inform the principal about the contract of carriage the freight forwarder engaged in with a road carrier.(2)

The principal/cargo owner must attempt to collect any damages directly from the carrier engaged by the freight forwarder. The principal obtains a claim right against the carrier from the moment the principal informs the freight forwarder that it wishes to exercise the rights the principal would have had at its disposal, had it contracted directly with the carrier. The freight forwarder shall issue a declaration for the benefit of its principal, stating that there is a freight forwarding contract in place between the principal and freight forwarder.

Facts

Bleckmann instructed Nord Cargo to transport a shipment of textiles on behalf of O'Neill Europe BV from the Netherlands to Madrid, Spain. Nord Cargo loaded several other shipments with a destination of Spain. The first stage of the transport was from the Netherlands to Roye, France. From there to Daganzo, Spain, Nord Cargo subcontracted another carrier. In Daganzo, Nord Cargo ascertained that part of the O'Neill shipment was missing.

Bleckmann's security department received a notification of possible theft from Nord Cargo. In turn, Bleckmann notified O'Neill. Several investigations were carried out and O'Neill's cargo insurer Achmea indemnified O'Neill for the loss of goods.

Achmea filed a recovery claim against both Bleckmann and Nord Cargo. It argued that both were to be regarded as carriers under the Convention on the Contract for the International Carriage of Goods by Road (CMR) and liable under articles 17 and 3 of the CMR. It argued that the goods must have been stolen during transit, and that the carriers had failed to clarify how this could have happened.

According to Achmea, all the facts and circumstances were in the domain of Bleckmann and Nord Cargo. However, Achmea was struggling to obtain this information. Achmea argued that both carriers had failed to comply with their "strengthened obligation to furnish facts". As a result, Achmea argued, they could not rely on the limitation under article 23(3) of the CMR, up to which Nord Cargo had already paid. It had to be presumed that the carriers had acted with intent or deliberate recklessness (article 29 of the CMR).

In as far as Bleckmann had acted as a freight forwarder, it had failed to comply with the obligations under article 8:63 of the Dutch Civil Code, according to Achmea. As a result, Bleckmann was liable as if it had acted as a carrier.

Decision

The Court rejected the claims against both defendants, leaving Achmea empty-handed. The claimant was ordered to pay (legal) costs.

Bleckmann
First, the Court addressed the claim against Bleckmann. In ascertaining the type of contract concluded between O'Neill and Bleckmann (freight forwarding or carriage by road), the Court applied the test that is common under Dutch law. The Dutch Supreme Court established this test in its landmark case Haviltex. What matters is not only the linguistic meaning of the provisions in a contract, but also the sense that the parties could, in the given circumstances, reasonably reciprocally give to these provisions and what they could, in that respect, reasonably expect from each other.(3)

The Court established that Bleckmann had been clear about its capacity. Relevant in this respect was the following clause in the contract: "When transporting goods the Contractor does not commit itself as carrier but only as transport manager (freight forwarder)." The fact that O'Neill had stated in its claim letter to Bleckmann that the transit was Bleckmann's responsibility and for its risk was in contrast to the contract concluded before the transport started.

The Court also established that Bleckmann had complied with its obligations to disclose information and data. Bleckmann had shared its internal investigation report with O'Neill and passed on its notification of theft to the Spanish police authorities. The internal report contained, among other information:

  • detailed information on the route;
  • a declaration by Nord Cargo; and
  • screenshots of closed-capture television images.

Bleckmann also shared a survey report by its surveyors, as well as a report by Nord Cargo's surveyors. The claim against Bleckmann was rejected.

Nord Cargo
The Court then addressed the claim against Nord Cargo. It did not follow Achmea's argument that the so-called "strengthened obligation" to furnish facts applied. The main rule in Dutch law on civil proceedings is that a claimant has an obligation to furnish facts which substantiate the allegations in the claim. It is then up to the defendant to dispute the facts and the claim with reasons.

If the claimant struggles to furnish facts because these are not available and all in the domain of the defendant, a defendant may have a strengthened obligation to dispute the claim, with an obligation to provide additional information and data to dispute the claim. This obviously assists the claimant.

However, the Court established that Nord Cargo had sufficient information and data. The Court did not apply the extra obligation for the defendant but referred to the main rule on evidence: it was up to Achmea to present sufficient facts that substantiated its allegation that the drivers who had transported the shipment from France to Spain were involved in the theft. As this was not presented, the Court also rejected the claim against Nord Cargo under article 29 of the CMR.

Comment

The Dutch courts are typically very reluctant to accept the application of article 29 of the CMR. This is in line with the standing Supreme Court position on article 29 of the CMR. A cargo owner shall present convincing evidence of involvement of agents or servants of the carrier or by any other persons of whose services it makes use for the performance of the carriage.

When the evidence is thin or is in the defendant's domain, a claimant may rely on the defendant's strengthened obligation to furnish facts.

Further, a party that wishes to act as a freight forwarder shall make this very clear before the conclusion of the contract. Bleckmann had sufficiently done so. There are many examples where this was not the case and where that party was presumed to have acted as a carrier.

For further information on this topic please contact Jos van der Meché by telephone (+31 6 29092340) or email ([email protected]) The AKD website can be accessed at www.akd.nl.

Endnotes

(1) District Court Zeeland-West-Brabant, 14 December 2022 (ECLI:NL:RBZWB:2022:7627).

(2) Article 8:63 of the Dutch Civil Code.

(3) Dutch Supreme Court, 13 March 1981 (ECLI:NL:HR:1981:AG4158).