In a recent judgment the Svea Court of Appeal(1) reaffirmed the exclusivity of the Uniform Rules Concerning the Contract of International Carriage of Goods by Rail (CIM).
Akzo Nobel had engaged Green Cargo to carry a consignment of chlorine from Sweden to the Netherlands by rail. Accordingly, the provisions of the CIM were applicable.(2)
During carriage the train derailed due to the wilful misconduct of the driver. In order to avoid a potential disaster, the consignor took various measures to empty the wagons of the poisonous chlorine.
The question that was later put to the appeal court was whether Green Cargo had to reimburse the consignor for the costs of the measures undertaken, given that the chlorine had been neither lost nor damaged (due to the successful measures) undertaken by the consignor).
The appeal court concluded that the costs were not recoverable: Article 36 of the CIM provides that the railway is liable only for loss or damage resulting from the total or partial loss of, or damage to, goods. Thus, costs that do not result from a loss of, or damage to, the goods are not recoverable.
With respect to Article 44 (regarding loss of the right to invoke the limits of liability), the court held that it specifies only when the liability limits provided for in the CIM will not apply. Thus, Article 44 does not govern the types of damage that are covered. Therefore, the fact that a cost has been incurred due to reckless behaviour does not necessarily mean that a recovery action will succeed. This will depend on whether the cost results from a loss of, or damage to, the goods.
While the decision may be legally sound, it is perhaps more questionable from an environmental perspective. It is an undisputed fact that if, and to the extent that, hazardous goods carried by rail pollute the environment when they are lost or damaged, the railway is liable for any consequences of such pollution – especially if the pollution resulted from reckless behaviour on part of the railway.(3) One may therefore assume that should a similar incident arise in the future, a consignor of hazardous goods may be reluctant to undertake any measures to assist the railway, at least until any loss of, or damage to, the goods (ie, pollution) has been ascertained. However, it may then be too late to prevent environmental damage.
The judgment has been appealed to the Supreme Court. However, it is doubtful whether the appeal will succeed.
For further information on this topic please contact Mats Hesselrud at JCA Skarp by telephone (+46 8 676 9780), fax (+46 8 676 9789) or email ([email protected]).
(3) Or on part of those employees and other persons for whom the railway is liable under Article 50 of the CIM.