The Supreme Court has handed down its first ever decision on the issue of when cargo is deemed to be 'delivered' under a contract of carriage in respect of goods transported by road within the Netherlands.


At the heart of the dispute, which was decided by the Supreme Court on February 17 2012, was a contract dated November 9 2001 between specialist steel products supplier Stainalloy and haulier Tele Tegelen for the carriage of a shipment of pipes from Geleen to Stainalloy's premises in Sliedrecht. Tele Tegelen subcontracted the transportation to another Dutch transportation company, which then carried out the shipment in two trucks under two separate way-bills.

The first shipment was accepted by Stainalloy on November 13 2001 and the consignment note was duly signed. The second shipment also arrived on November 13 but the trailer was not unloaded and the consignment note was not signed on behalf of Stainalloy in acceptance of the cargo. That same day, the second trailer with its cargo of pipes was parked in an unguarded parking space on a public road in the vicinity of Stainalloy's premises and was subsequently stolen.

Stainalloy filed a claim for €165,456, arguing that the carrier had not performed its obligations under the contract because it had failed to deliver the cargo in the same condition as it had received it. Tele Tegelen countered by arguing that, in accordance with Stainalloy's instructions, it had parked the trailer on a public road near Stainalloy's premises. It also maintained that the contract for carriage had ended on November 13 rather than on November 29, the date on which some of the pipes (which had subsequently been recovered on November 23) were eventually delivered to Stainalloy.

Under Dutch inland road transportation law, the carrier is obliged to deliver the goods in the same condition as received for carriage(1) and without delay.(2)


The Supreme Court held that delivery(3) was not a unilateral act by the carrier. Rather, delivery had to be based on a consensus between the parties that the carrier waived control of custody on the goods carried with the explicit or tacit consent of the consignee and that the carrier enabled the consignee to exercise control over the goods.

The court noted that the provisions of the transport contract and the actual circumstances of the specific case would determine whether delivery had taken place. It was held that liability only ends at the time of delivery and that the carrier remains liable for loss of or damage to the goods for as long as they have not been delivered.

However, Tele Tegelen maintained that the transport contract had ended on November 13 because it had entered into a separate agreement with Stainalloy – for Stainalloy to lease the second trailer as of November 13 – which replaced the original agreement. While accepting that transported goods can remain in the carrier's custody after arrival at destination under an agreement which is separate from the transport contract and which effectively ends the latter when it comes into effect, the Supreme Court said that Tele Tegelen had not proved the existence of such a separate agreement. It therefore rejected this argument.

The Supreme Court took into account the fact that Stainalloy had not given instructions to Tele Tegelen to park the trailer outside its premises on a public road and that the driver had left the trailer without making sure that Stainalloy had signed the consignment note in acceptance. The court also held that the fact that Tele Tegelen had charged Stainalloy a per-day fee starting on November 13 did not mean that the transport contract had ended and been replaced by a rental agreement covering the trailer.


This decision is the first by the Supreme Court in respect of delivery by Dutch road carriers within the Netherlands. It provides a clear definition of 'delivery' in this context, and is in line with the same court's landmark ruling of March 1995 in connection with delivery under the Convention on the Contract for the International Carriage of Goods by Road.

For further information on this topic please contact Jos van der Meché at AKD by telephone (+31 88 253 50 00), fax (+31 88 253 54 00) or email ([email protected]).


(1) Article 1095, Book 8, Civil Code.

(2) Article 8:1096, Civil Code.

(3) As envisaged under Article 8:1095 of the Civil Code.