The severe weather conditions experienced in the Netherlands on January 18 2018 will have provided a salutary reminder to road carriers of how difficult it is to claim force majeure exemptions under the Convention on the Contract for the International Carriage of Goods by Road (CMR).
The Netherlands categorises the severity of the weather using a colour code system, which ranges from green to red. A 'code red' entails the most extreme weather conditions – for example, 75 millimetres of rain and wind speeds of more than 100 kilometres an hour. Such winds can uproot trees and litter the roads with debris, causing extensive delays for haulage companies. However, these delays, which can result in higher costs, are not the only type of damage likely to result from such extreme weather conditions. High winds can also blow trucks over, resulting in damage not only to vehicles, but also their cargo. Depending on the type of cargo that a truck is carrying, these claims can be significant, and carriers will want to limit their liability.
Despite there being a code red in place in the Netherlands on January 18 2018, numerous haulage companies allowed their trucks to take to the roads. As a result, many trucks were blown over, leading to extensive amounts of damage. This raised the issue of whether carriers are responsible for such damage or whether they can exclude their liability on the grounds that events leading to such damage are out of their control.
The main obligation for road carriers under the CMR is to deliver cargo in good condition and on time. Failure to do so will, in principle, render them liable for damages under Article 17(1) of the CMR. Meanwhile, pursuant to Article 23(3) of the CMR, carriers must pay compensation for damage, up to a maximum of 8.33 special drawing rights per kilogram. However, carriers will be absolved of liability entirely in the event of a force majeure situation because the situation could not be avoided and the consequences could not be prevented. This exemption is stipulated under Article 17(2) of the CMR.
There is limited recent Dutch case law involving road carriers seeking exemption under the CMR's force majeure provisions. An exception is the 's-Hertogenbosch Court of Appeal case of May 31 2016 which involved the road transportation of cargo from Venlo in the Netherlands to Balassagyarmat in Hungary.(1)
Dutch multinational company DSM contracted with logistics specialist DSV to carry out the transportation. DSV in turn subcontracted to another transportation specialist, Tirolia, which subcontracted to yet another logistics provider, Seszáll.
Shortly after Seszáll had picked up the cargo, the truck in which it was being carried was toppled by winds on the motorway between Venlo and Eindhoven. DSV paid the limited liability to DSM and tried to reclaim its indemnity from Tirolia. Seszáll was already insolvent by that time. When the case came before the Dutch courts, it was held that the cargo had been loaded in good condition and that the damage sustained had been caused by the truck being blown over. Tirolia thereafter tried to exempt itself from liability by arguing that the damages were the result of a force majeure situation.
Existing Dutch force majeure case law includes strict requirements on exemptions from liability. Carriers can successfully invoke the force majeure defence only if they can prove that they have "taken all the measures that could reasonably be expected from a careful carrier under the circumstances at hand, for preventing damage", which, in practice, is difficult to prove.(2) Since a carrier must act with the greatest possible level of diligence, an invocation of force majeure will fail if the carrier could have taken precautions which:
- a reasonably acting carrier could have been expected to take; and
- could have prevented the damage.
In practice, a carrier has the burden of proof to establish whether a force majeure situation exists. Each situation will depend on the factual circumstances of the case. Foreseeability is an important factor in cases involving bad weather. If a carrier did not and could not foresee bad weather at the time of departure, a force majeure situation might exist. This could be the case if a sudden gale toppled a truck in the absence of any warnings or indications of strong winds. Foreseeability of damage is part of the concept of overall foreseeability, since not all types of bad weather will result in damage. Consequently, the number and nature of warnings can be construed as relevant to the application of foreseeability of damage.
If carriers know about possible bad weather, they must try to limit its consequences (eg, by choosing a route which circumvents such weather). In this regard, it is necessary to consider whether a carrier:
- could have taken different actions to prevent damage; and
- had the relevant resources or knowledge to take precautions.
However, the burden remains with carriers to prove that such precautions and alternative actions could not reasonably be expected of them.
In the 's-Hertogenbosch Appeal Court case, Tirolia based its argument on the fact that the toppling of Seszáll's truck was the result of:
- sudden gales;
- a whirlwind;
- a mesoscale convective;
- a vortex; and
- a rear inflow.
Tirolia was unsuccessful in its force majeure defence and would have been so even if such conditions had been established. Both Dutch and German meteorologists had issued numerous warnings of bad weather. Tirolia's claim that the driver could not understand the warnings was also rejected, as it was held that modern navigation systems can be equipped with weather forecasts in the desired translations, including Hungarian. Consequently, a professional carrier could have been expected to act reasonably and heed such warnings and take the necessary precautions.
Tirolia was unable to provide evidence of having taken such precautions and could not justify the driver's presumption that, despite warnings about the nature of the adverse weather, no damage could result from the high wind levels. It was also concluded that the carrier had taken additional risks, as:
- the delivery of the cargo had not been required to be carried out on that day; and
- the driver had moved towards the bad weather, rather than going in the opposite direction.
It was therefore decided that Tirolia:
- was liable for the damage under Articles 17(1) and 3 of the CMR; and
- could not rely on the exemptions under Article 17(2) of the CMR.
Given this background, any reliance by road carriers on force majeure for events arising from the storms of January 18 2018 will be hard to enforce in the Dutch courts. While it is not unthinkable that a force majeure situation might exist, the numerous weather forecasts and code red warnings will have created a heavier burden for carriers. The level of precautions that carriers must take in such situations is high and they must be able to justify their decision to allow truck drivers to continue transporting cargo despite the weather forecasts. If a carrier decides to wait until a storm is over, claims for delay in delivery might follow. In that case, a force majeure defence seems reasonable, as the carrier could say that it had no option but to postpone the carriage.
This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.