On 21 June 2016, the Arnhem-Leeuwarden Court of Appeal has rendered an interesting decision on the period of liability of the carrier. The main rule is that the carrier has done his duties, when he delivers the received goods without damage or delay. Therefore, the moment of delivery is an important moment for the transport contract. Parties may disagree on whether or not there has been a delivery and, therefore, whether or not it is the end of the liability period of the carrier.
CMR convention
The international transport of goods by road is governed by the Geneva Convention of 1956, the CMR convention. The CMR has also served as a model for the national rules on transport by road in section 8 of the Netherlands Civil Code. The CMR does not provide a concrete description of what is to be understood by the delivery of goods and when this is applicable. That is by no means strange. A package is delivered in a different manner than, for instance, a yacht. The delivery to a liquor store at the corner is done by roll container. At a distribution centre, parking is needed only at the dock. Whether there are explicit agreements on delivery or not differs from case to case, and sometimes, no one knows exactly what has been agreed.
For that reason, several variations on the delivery have been considered by the court. For each situation, the question as to whether it actually is a ‘delivery of goods’ has to be answered and, with that, whether the liability period of the carrier has ended.
Delivery of goods
In the Netherlands, it is assumed that the delivery of goods is equal to the moment on which the carrier gives up the power of the goods after consensus with the consignee. When the consignee sees to the unloading, the carrier must enable the consignee to execute his actual power over the transported goods. When the consignee sees to the unloading of the goods, the moment of delivery lies before the actual unloading, because the actual power of the goods has already been transferred to the consignee before the unloading is started. The moment of delivery can also take place at a later time, for instance, when the carrier has also committed to seeing to the unloading, in addition to the transport.
Decision Arnhem/Leeuwarden Court of Appeal 21 June 2016
This case involved damage to a prototype of an automated packing and cutting table. The damage occurred during unloading the cargo. As indicated, parties have to agree themselves on who sees to the unloading of the cargo. In this instance, the sender had explicitly instructed the carrier, and had mentioned this on the consignment bill, that a representative of the sender had to be present at the unloading, due to the value and fragility of the shipment.
Without this person, unloading was not to take place. Because the person was not present and, according to the driver, could not be reached, the consignee started to unload the cargo, during which the goods were damaged. The sender held the carrier liable for this. This was awarded by the district court. The carrier filed an appeal to this decision at the Court of Appeal.
Position of carrier
The carrier stated he was not liable. Because the carrier was not designated to unload the cargo, the goods had been delivered at the arrival at the destination. According to the carrier, the liability period had, therefore, ended. Furthermore, the damage was caused by an employee of the consignee and not by the carrier himself. Consequently, the carrier stated there was no liability on his part.
Decision Court of Appeal
The Court of Appeal did not agree. The Court of Appeal found that, in general, a carrier is not obligated to unload the cargo under the CMR. Also, parties have not made agreements on this. At the handing over of the cargo by the carrier to the consignee, the transport contract ended. Because the damage occurred after this, the carrier is not to be held liable for this on the grounds of the CMR. To that extent, the Court of Appeal goes along with the carrier’s defence.
According to the Court of Appeal, this does not affect the fact that the carrier may be liable for this damage in reference to the applicable national law, if he has fallen short in another commitment than that of the transport of the goods. In the Court of Appeal’s opinion, this is the case here. By not respecting the explicit instruction not to unload the cargo in the absence of a representative, the carrier has fallen short and is, therefore, liable for the damage. The fact that the damage was not actually caused by the carrier, but by an employee of the consignee, is deemed not to be important by the Court of Appeal.
Conclusion
The transport company is not held liable as a carrier (under the CMR), but because it did not fulfil its (additional) accepted commitment. Because this liability has not been regulated by the CMR, the carrier cannot claim any exclusions and limitations as governed by this convention.
Systematically, the agreement does not seem to be quite correct. Parties have not reached any other agreement than the transport contract. Moreover, a note on the consignment bill is a part of the agreements between the carrier and the carrier’s client. It seems artificial to see this agreement as an agreement that is separate from the transport contract. It seems fairer to judge that the liability period had not yet fully ended or that delivery was carried out in conflict with the instruction of the sender. The case was about a damage of approximately € 2,000.00, so it is not likely that an appeal in cassation will be filed.
Information
If you have any questions on this subject, please contact Hein Kernkamp.
