The Roermond District Court has handed down an interlocutory judgment of interest to all those involved in the international carriage of goods. The judgment reaffirms that the period of carrier's liability under Article 17.1 of the Convention on the Contract for the International Carriage of Goods by Road (CMR) does not end with the handing over of the CMR note only. Rather, the carrier must also prove that it gave actual custody of the goods to the consignee.
The dispute arose out of the transportation by road, ferry and rail of a consignment of printers for Xerox from the Netherlands to Sweden. Xerox instructed Swedish road carrier DSV in respect of the road leg of the transit from the Netherlands to Travemunde, Germany, and the ferry leg from Travemunde to Malmo, Sweden. DSV then subcontracted this undertaking to a Bulgarian road haulier.
The goods were picked up on behalf of the Bulgarian road haulier by its Macedonian truck driver. DSV instructed the road haulier to park the trailer at a specified ferry terminal on arrival in Malmö and to hand over the CMR consignment note at the ferry terminal's offices. It was planned that the ferry terminal authority would place the trailer on a train a few days later for onward carriage to the final destination of Rosersberg, Sweden. However, on the day the trailer was due to leave, the ferry terminal authority could not locate it. It transpired that the truck driver had handed over the CMR note at the ferry terminal's office, but parked the trailer outside the terminal's fenced premises, from where it was stolen.
The cargo interests filed a claim against DSV. However, shortly after DSV had started declaratory proceedings before the Roermond District Court, and an amicable settlement was reached between the parties on the basis of CMR limitation. In the same proceedings, DSV also sought judgment against the Bulgarian road haulier in connection with CMR limitation, and the dispute between these two parties duly proceeded before the court.
The road haulier argued that it had duly delivered the trailer to the ferry terminal in line with Article 17.1 of the CMR. The theft allegedly took place outside the period of the road haulier's liability as carrier under Article 17.1. In this respect, the road haulier mainly relied on the fact that its driver had handed over the CMR consignment note at the ferry terminal's offices which, it argued, terminated its liability as carrier under the CMR, with the trailer having been delivered to the consignee in conformity with Article 17.1.
The court referred to Dutch case law to demonstrate that the collection of a CMR consignment note by the driver a few days before the start of the carriage does not mean that he took over the goods within the meaning of Article 17.1. However, the court also pointed out that there is no existing Dutch case law to the effect that no delivery can be said to have taken place within the meaning of Article 17.1 because of the mere fact that the CMR note has been handed over to the consignee.
In an interlocutory judgment of February 23 2011, the court confirmed that a 1995 ruling of the Supreme Court – holding that the period of carrier's responsibility ends at the moment when the carrier hands over actual custody of the goods to the consignee – meant that the period of carrier's liability under Article 17.1 of the CMR does not come to an end by the handing over of the CMR note. The court stated that the carrier must also prove that it handed over actual custody of the goods to the consignee. The court allowed the road haulier to introduce witnesses to prove that the driver had handed over actual custody of the goods.
The court has yet to deliver its final judgment in the case. However, the importance of the interlocutory judgment is such that it has already been published in several Dutch law reports.
For further information on this topic please contact Annemieke Spijker at AKD by telephone (+31 88 253 5000), fax (+31 88 253 5400) or email ([email protected]).