For years there has been a struggle between the carriers opting for the Dutch jurisdiction to surely limit liability in case of loss or damages, and the cargo interests aiming for other cargo-friendly jurisdictions. The background of this struggle is the fact that Germany traditionally is home to cargo interests, whereas the Netherlands is the basis of road hauliers and logistics groups. The German cargo interests invented the ‘aktive Leistungsklage’ for this purpose, on basis of which the jurisdiction of the ‘negative Feststellungsklage’ often first seized, could be ignored. At least until now.

Because, where this practice was initially endorsed by the German Supreme Court, this road has now been cut off by the European Court of Justice in its decision of 19 December 2013 (C-452/12) in Nipponkoa Insurance Co. (Europe)/Inter-Zuid Transport. And for good reasons: uniformity and free traffic of legal decisions within the European Union based on mutual confidence in each other’s national judicial systems.

This new decision is merely related to the conjunction of the Brussels I Regulation (44/2001) and the CMR Convention, and whether autonomous interpretation of CMR principles as promoted in fact in article 71 of the Regulation, allows deviation from the principal aims of the European Union. In this connection the European Court of Justice ruled that autonomous interpretation of conventions may not result in violation of the abovementioned aims for uniformity within the European Union.

Against this background the lis alibi pendens rules of article 27 of the Brussels I Regulation, prevent the application of article 31 of the CMR Convention allowing the cargo interests to seek compensation in an own action before another court on basis of the argument that their action involves another cause compared to a prior negative declaration (procedure). In its judgment the European Court of Justice reiterated the principles of its previous decisions in The Tatry (C-406/92) and TNT Express Nederland (C-533/08) cases, underlining that if both actions – the declaratory as well as the for compensation of damages – are in fact brought between the same parties and are based on the same facts and cause, these are subject to the lis alibi pendens rules of article 27 of the Brussels I Regulation.  

Like in the matter at hand, the German court in the district of Krefeld - as the second court seized - had to reject the claim for compensation of damages of cargo interests in light of the earlier decision of a Dutch court with a negative declaratory nature confirming the limited liability of the carrier, as it simply concerned the same parties and facts. Allowing a second ‘aktive Leistungsklage’ before another foreign court, would jeopardize the European Union’s aim for uniformity and free traffic of legal decisions.

The consequence of the ECJ’s recent decision is that it remains important for carriers involved in a loss or in case of damages, to act swiftly and seek for a declaratory judgment as soon as possible, preferably in a “carrier-friendly” jurisdiction, e.g. the Netherlands. Or the other way around, for cargo interests under those circumstances, to file a claim in a cargo-friendly jurisdiction immediately after the incident.

The downside of it all is that parties involved herewith - together with their underwriters - are still encouraged to make costs and are forced to litigate without any sense. Because the certainty that the international CMR Convention intends to provide – provide carriers protection by the introduction of limited liability in case of loss or damages - in fact results in a rush to the courts because of the apparent lacuna’s and differences of its interpretation. Brussels is again one step closer to uniformity, but the mere position under the CMR remains unchanged and that is a sad story for the industry.