Dutch Supreme Court 10 August 2012 in Traxys Europe S.A. et al/Transportbedrijf A. Maat B.V.
The Dutch Supreme Court has just handed down a judgment dealing with the limitation of carriers' liability under art. 23 CMR and a breakthrough of limitation as per art. 29 CMR (and the equivalent under Dutch law art. 8:1108 Dutch Civil Code).
Under art. 29 CMR a carrier is not entitled to avail itself of the provisions of which exclude or limit its liability or which shift the burden proof if the damage was caused by its wilful misconduct or by such default on its part as, in accordance with the law of the court or tribunal seised of the case, is considered as equivalent to misconduct.
In a number of earlier decisions1 the Supreme Court has held that in accordance with domestic law of the Netherlands the equivalent of "wilful misconduct" comes down to subjective conscious recklessness, which is nearly equivalent to intent. In practise this means that a carrier can almost always benefit from the CMR rules regarding the limitation of liability for damages, unless the cargo interests can successfully demonstrate a situation which comes closely to intent of the carrier, as was the case in Overbeek/Cigna & Phillip Morris/Van der Graaf.2
Art. 29 of the CMR is a somewhat notorious provision as divergences occur in the interpretation of this provision by national judges. Some countries equate an intentional gross negligence to wilful misconduct, provided there is a degree of incompetence involved, whereas other countries favour a literal and restrictive interpretation of art. 29 whereby the carrier is debarred from availing itself of compensation limits only if it has knowingly and consciously committed gross negligence. It is therefore better for a carrier to be judged by the courts in the latter category3 . And this will inevitably lead to creative forum shopping.4
In Traxys Europe S.A. et al/Transportbedrijf A. Maat B.V. the Supreme Court of the Netherlands (again) was called upon to come to the rescue of the carrier that in vain had tried to rely on its limited liability under art. 23 CMR in the lower courts.
On 26 May 2005 Euro-Rijn International B.V. agreed with Transportbedrijf A. Maat B.V. that the same day the latter would load 20 bigbags of roasted molybdenum concentrates at the premises of AMS in Moerdijk (the Netherlands) to be shipped to an addressee in Marchienne-au-Pont in Belgium. The agreed date of discharge was 27 May 2005 before 10 a.m. The CIF value of the cargo was USD 974,385.- and the price for the carriage was EUR 250.- only. Euro-Rijn had stated on the order: "In connection with the high value of the goods we instruct herewith you not to leave the truck(s) unguarded. We beg you to provide us with the license number before loading". The CMR consignment note mentioned Euro-Rijn as shipper and Transportbedrijf A. Maat B.V. as carrier.
Transportbedrijf subcontracted the actual carrier to Houwelingen Transport B.V. The 2 companies Transportbedrijf A. Maat B.V. and Houwelingen Transport B.V. did have the same managing director.
A truck and trailer registered in the name of Houwelingen picked up the cargo on 26 May 2005 at approx. 14:30 p.m. and this truck was subsequently parked at a parking lot in Alblasserdam (the Netherlands) operated by Van Vliet Taxi. Houwelingen rented a number of parking spaces in this parking lot, which was part of an industrial estate. The parking lot was adjacent to the premises of Transportbedrijf A. Maat B.V. The parking lot was fenced off of the public road and the gate was locked and the gate could only be opened with a key. However, 31 keys of this gate were in circulation. The parking lot was not permanently guarded and was only lit by the lights in the public road. The adjacent parking lot of Transportbedrijf was permanently guarded by Alert Security.
On 27 May 2005 at 05:00 a.m. the chauffeur of the truck discovered that the truck and trailer with the valuable cargo had disappeared from the parking lot. The lock at the entrance gate had been damaged. Other trailers in the parking lot were still there and there was no sign of damage to these trailers. The trailer that had disappeared was found in the Rotterdam Port area some days later, empty. The locks had been forced. There was no alarm on the truck.
The Court of first instance had found the carrier liable and had denied the carrier its right to invoke limitation of liability. The Supreme Court had to review the reasoning of the Court of Appeal, which had led to the confirmation of the earlier judgment of the District Court denying limitation of liability. The Supreme Court held that the Court of Appeal insufficiently made clear on basis of the facts presented to it for what reason it had held that the probability of theft of the cargo had been significantly greater than chances that theft would not take place.
Summarizing this decision it can be said that for cargo interests to be successful in denying the carrier's right on limitation of liability, it is not sufficient that the carrier was aware of the chance that the goods would be stolen, that the carrier acted imprudently with the instructions given by the shipper and that safer alternatives for temporarily parking the goods had not been used. Even under those circumstances there is no recklessness with knowledge that damage would probably result and hence Transportbedrijf could rely in principle on the limitation of liability.