Recently, on 20 December 2013, the Dutch Supreme Court rendered a clear judgment on the role of national law with regard to interruption of time-bars and suspension under the Convention on Contracts for the International Carriage of Goods (“CMR”).
In 2005 Hazeleger Transporten B.V. (“Hazeleger”) received instructions from Brinky Bouw en Ontwikkeling B.V. for the carriage by road of 140,000 baby chickens from Denmark to St. Petersburg (Russia). Due to the cold outside temperatures the fuel of the truck started to clot. For the chicks this was disastrous, as the heating system of the trailer broke down. On arrival of the truck on 29 December 2005, it was discovered that 110,000 chicks had died. In financial terms, this meant a loss of EUR 51,655.39 for Brinky.
Brinky claimed compensation from Hazeleger for the abovementioned loss and issued a writ of summons on 5 December 2007 initiating court proceedings before the court in Utrecht, thus almost two years after the incident. Before the court proceedings were initiated Brinky had already sent a letter of demand, on 2 January 2006, holding Hazeleger liable for its loss. Hazeleger replied to this letter on 30 June 2006, rejecting liability in full. Subsequently, more claim letters from Brinky followed (one on 29 August 2006 and one on 16 April 2007).
Positions of parties before the court
Hazeleger’s main defence in the court proceedings was based on the claim being time barred because of the period of limitation of Article 32 CMR, which states:
“The period of limitation for an action arising out of carriage under this Convention shall be one year”.
Article 32 also provides that the limitation period starts to run from the date of delivery in case the claim is based on damage to the carried goods. The CMR explicitly provides for the method of suspension in Article 32, paragraph 2:
“A written claim shall suspend the period of limitation until such date as the carrier rejects the claim by notification in writing and returns the documents attached thereto.”
Hazeleger therefore argued that the time limitation in this case had started to run on the date of delivery (29 December 2005) and that, although the time limitation was suspended for a period of time (from the day of the written claim letter on 2 January 2006 until the day of full rejection of liability on 30 June 2006), the time limitation of Article 32 CMR started to run again and so Hazeleger argued, unfortunately for Brinky, it had already lapsed when Brinky initiated proceedings before the Dutch District Court of Utrecht on 5 December 2007.
Brinky argued that Hazeleger could not invoke any time bar as these time bars were interrupted by the subsequent letters (after the rejection of liability by Hazeleger) in accordance with Dutch national law on interruption of statutory time limitations. The Dutch Civil Code offers the possibility to repeatedly interrupt a prescription period by sending clear claim letters to that effect. Brinky argued that the lex fori (Dutch law) should be applied as Article 32, paragraph 3 explicitly states:
“Subject to the provisions of paragraph 2 above, the extension of the period of limitation shall be governed by the law of the court or tribunal seized of the case. That law shall also govern the fresh accrual of rights of action.”
The Court of First Instance accepted this and indeed applied Dutch national law to the extension and therefore ruled that Hazeleger could not invoke the time limitation as it had not lapsed. The Court of Appeal however overruled this decision and decided in favour of Hazeleger.
Dutch Supreme Court
The question which the Supreme Court needed to answer was therefore whether Article 32 CMR should be interpreted allowing extensions to be covered completely by national law or whether the CMR restricts the number of times a claim letter can extend a time limitation.
After considering the English and French original texts and an official translation of those original texts in Dutch, the Supreme Court established that different views exist within CMR jurisdictions regarding this matter. Different systems of suspension and extension of time limitations exist across CMR jurisdictions. The Advocate-General advising the Supreme Court in deciding the case, in this regard considered the French, Belgian, German and English systems in his opinion preceding the Supreme Court judgment to which the Supreme Court refers in its decision.
The Supreme Court concluded that, in light of these differences and to create legal certainty and prevent forum-shopping, it was desirable to derogate from national rules and to allow international treaty law to prevail. This of course begs the question what this international treaty law entails.
According to the Dutch Supreme Court Article 32, paragraph 3 simply allows national law to govern the method of suspension and extension, but nothing more.
The Supreme Court ruled that a written claim letter, after a temporary suspension was lifted by a rejection of liability, cannot extend the period of limitation again. The original period continues again in conformity with Hazeleger’s argumentation. Effectively, this means that the Dutch Civil Code on extensions is set aside by the CMR. It remains to be seen whether this Dutch decision will have the desired effect of legal certainty and uniformity of the law across the CMR jurisdictions and other jurisdictions will follow suit. For Brinky this legal certainty is unfortunate: its claim was denied because the time limitation had expired.