This blog briefly discusses a few examples in which the CMR carrier cannot be held liable under the CMR Convention, but only under additionally applicable national law because it concerns damage or loss of or due to ‘other than the transported goods‘. In doing so, we briefly discuss some relevant Dutch case law.
Firstly it should be noted that the CMR Convention does not regulate everything exhaustively. For example, the CMR Convention does not regulate which party must load, stow or unload, it does not regulate the applicability of general terms and conditions and nothing about the right of retention, settlement or suspension of payments. If and insofar the CMR Convention does not regulate something, national law is additionally applicable. The applicable (additional) national law is determined on the basis of rules of private international law (e.g. Rome I Regulation). In this blog we will not discuss the possibility of declaring the Dutch (inland road carriage) AVC conditions applicable in addition to CMR transport.
The basis for liability of the CMR carrier under the CMR Convention is laid down in Article 17 paragraph 1 CMR: “The carrier shall be liable for the total or partial loss of the goods and for damage thereto occurring between the time when he takes over the goods and the time of delivery, as well as for any delay in delivery”. Liability of the carrier for ‘other than the transported goods’ is not governed by CMR, but is governed by applicable national law.
The Dutch renowned case law of the Supreme Court regarding the liability of the CMR carrier for “other than the transported goods” is the “Cargofoor” judgment from 1994 (ECLI:NL:HR:1994:ZC1333). In short, this judgment concerned a cargo of acetic acid that became contaminated in the tank wagon during transport and was subsequently unloaded by the CMR carrier into a land tank, as a result of which the (previously healthy) acetic acid already present in the land tank also became contaminated, resulting in damage. The Supreme Court held that the liability of the carrier for ‘other than the transported goods’ (i.e. the contaminated goods in the land tank) is not governed by the CMR, but by the additional applicable national law. In this case, Dutch law was additionally applicable; in particular on account of a tortious act (section 6:162 of the Dutch Civil Code) whereby the carrier had unlimited liability for the damage in the land tank.
Another well-known judgment of the Dutch Supreme Court concerns “Schenker/Transfennica” (ECLI:NL:HR:2015:3624) in which, in short, the loading/shipment data supplied by the subcarrier Transfennica to main carrier Schenker were not entirely correct, as a result of which the goods could not be cleared through the Russian border, as a result of which Schenker incurred considerable storage fees (from Russian customs). The cargo itself was still in good condition. The Supreme Court held that Transfennica’s liability for storage fees as a result of incorrectly supplied loading data did not extend to loss of or damage to the transported goods or to delay in delivery as referred to in the CMR. Therefore, the liability for incorrect loading data had to be assessed under national law, as a result of which Transfennica had, in principle, unlimited liability.
A final example of the subject matter at hand concerns a fairly recent judgment of the District Court of the Northern Netherlands (ECLI:NL:RBNNE:2022:2963) in which the question arose whether the CMR carrier was liable for transporting and delivering the wrong cargo. That is, under the commercial purchase agreement the seller (Cosmati) had supplied the buyer (PhD) with wrong quantities and types of medical gloves, whereas these wrongs goods had arrived in sound condition. The Court concluded that PhD’s claim towards carrier DAW-Trans pertains to ‘other than the transported goods’, namely the goods that were sold to PhD but were not delivered. The (possible) liability of DAW-Trans therefore had to be based on national law (in this case Polish law) and PhD had not argued anything in that context. As a result, there was no basis for liability of DAW-Trans and thus PhD’s claim was rejected by the Court.
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