Dutch case law
Arnhem-Leeuwarden Court of Appeal 30 April 2024 (ECLI:NL:GHARL:2024:2971)
Introduction
An earlier judgment this year by the Dutch Arnhem-Leeuwarden Court of Appeal has once again shown that the carrier is not liable under the CMR for goods incorrectly delivered by the seller to the buyer, that the carrier’s duty to inspect the goods upon receipt is limited and that the burden of proof that the goods were received in good condition by the carrier at the shipper/sender lies with the cargo interested party.
The facts and circumstances
Under the purchase agreement, Cosmati in Poland sells to buyer Pharma-Dynamic (PhD) in the Netherlands a shipment of medical gloves of one specific brand with different sizes and quantities. PhD paid 90% of the purchase price before it had received any proof of the existence of a consignment note.
Cosmati instructs CMR carrier Daw Trans to transport the shipment from Brześć Kujawski (Poland) to PhD in the Netherlands. At some point, a Daw Trans driver receives 30 pallets in a sealed truck at the Daw Trans branch in Rogówko (Poland). He then drives to Brześć Kujawski (Poland), where a Cosmati representative unloads approximately 13 pallets. Then, 11 new pallets are loaded into the vehicle, after which the truck is resealed. On the consignment note, Cosmati changes the number of pallets from 30 to 28 at the request of the driver. After the shipment arrives at PhD in the Netherlands, PhD finds that the consignment note and the seal differ from the information previously sent. Nevertheless, PhD signs the consignment note and pays the remaining 10% of the purchase price to Cosmati. After the driver has left, PhD determines that the number of pallets is different, that the brand of gloves is not correct for all goods and that the shelf life is limited. PhD terminates the purchase agreement with Cosmati and also claims damages from carrier Daw Trans under the CMR.
Without going into all the details of this case, some important considerations of the Court are as follows.
I) Article 17.1 CMR only regulates the liability of the carrier for the loss of or damage to the transported goods. There is no question of loss if the seller (Cosmati) has given the wrong batch to the carrier (Daw Trans) and this batch is delivered by the carrier to the buyer/recipient (PhD). The burden of proof lies with PhD that the goods were received for transport in good and complete condition and were not delivered to the buyer/recipient (PhD) in the same condition.
II) Articles 8 and 9 CMR do not create a separate basis for liability of the carrier, but at most leads to prima facie evidence. The consignment note signed by PhD upon receipt of the goods does indeed state the quantities with indications, but it cannot be inferred from this consignment note that the quantities (boxes with) gloves in the specified sizes and the specified brand stated by PhD were actually received by Daw Trans. Nor can this be assumed as a prima facie evidence in favor of PhD on the basis of art. 9 CMR.
III) It follows from art. 8 paragraph 1 read in conjunction with art. 8 paragraph 3 CMR that the carrier — without an order to that effect — is not obliged to examine the contents of the cargo. On the basis of the authentic text of art. 8 paragraph 1 CMR, the carrier is only obliged to check the correctness of the entries in the consignment note with regard to ‘the apparent condition of the goods and their packaging’ and ‘the number of packages, their marks and numbers’ upon receipt. These must correspond with the statements in the consignment note. ‘Marks’ refers to ‘brand signs’ and not to ‘brand names’.
IV) Insofar as the carrier’s duty to check the number of packages in this case is not limited to the number of (foil-wrapped) pallets, that duty at most concerns the number of boxes on the pallets. The consignment note did not mention anything about that. The carrier has no duty to check the content and composition of the goods in the packages. The consignment note therefore does not provide the prima facie evidence that a certain number of boxes with a certain number of gloves in certain sizes and of a certain brand, were received for transport in good and complete condition. It has therefore not been established that the goods ‘went in properly’ at the start of the transport and were lost during transport — due to partial unloading and loading in Brześć Kujawski (Poland) — within the meaning of Article 17 CMR and for which Daw Trans can be held liable.
V) The right to dispose of the goods received by Daw Trans did not lie with PhD at the time of partial unloading and loading (the redistribution) in Brześć Kujawski (Poland) but with the Shipper/Sender, Cosmati. Daw Trans was therefore obliged to follow Cosmati’s instructions. Article 12 paragraph 5 sub c CMR makes an exception to Cosmati’s authority to issue instructions as laid down in Article 12 paragraph 1 CMR, in the sense that the sender may not unilaterally instruct the carrier to proceed with the redistribution of the cargo. However, a violation of that provision does not constitute an independent ground for Daw Trans to be liable towards PhD.
Final Verdict
Ultimately, the Arnhem-Leeuwarden Court of Appeal upheld the earlier judgment of the District Court of Northern Netherlands in which PhD’s claim for damages against Daw Trans was dismissed.