On 18 December 2015 the Dutch Supreme Court ruled on the ‘Transfennica’ case (ECLI:NL:HR:2015:3624). In short, the facts of this case are as follows. A Finnish company undertook to arrange for transportation of Nokia goods from Roosendaal (the Netherlands) to Moscow (Russia). For that purpose this Finnish company via an intermediary sub-subcontracted Transfennica Logistics B.V.B.A, which in its turn subcontracted a Ducth carrier for the transportation of the goods from Roosendaal (the Netherlands) to Hamina (Finland). On request of Transfennica this Dutch carrier submitted data about containers. Apparently, the data about two of the three containers were mistakenly confused with each other. Transfennica forwarded these data to the Finnish company, which based on the info provided by Transfennica prepared the documents for a Customs clearance at the Russian border. The goods were successfully delivered to Hamina and handed over to a second actual carrier which was subcontracted by the Finnish company for the rest of the transportation from Hamina to Russia. Due to the above mentioned mistake in the submitted data about containers the goods were detained at the Russian border by the Customs and directed to a warehouse.
The costs of fines and warehousing of the goods were fulfilled by the Finish company and consequently refunded by way of recourse claim against the subcontractor. This subcontractor filed a recourse claim against Transfennica for the damages incurred as a consequence of the failure of Transfennica to fulfil its contractual obligation to submit correct data about the containers. The court of first instance ruled in favour of the subcontractor and the court of appeal ruled in favour of Transfennica. The Dutch Supreme Court in its ruling had rebutted the decision of the court of appeal and forwarded the case for further revision to the competent district court.
In its reasoning the Dutch Supreme Court stated that, even though the damage occurred upon termination of the contract of carriage, thus falls beyond the scope of contractual liabilities of the carrier covered by the CMR, and the test of a Cargofoor/RTT case (ECLI:NL:HR:1994:ZC1333 d.d. 15 April 1994) is not applicable in this particular case, the extra-contractual liability of the carrier for consequential damages still may be claimed on the basis of the terms of the applicable national law. The point of the Dutch Supreme Court was that the CMR does not provide for an exhaustive list of grounds of liability of the carrier, thus does not restrain a claimant in seeking for alternative grounds of liability of the carrier.
The ‘Transfennica’ case approach was successfully implemented in two recent judgments of the Dutch courts. The Court of Appeal of Arnhem-Leeuwarden in its judgment d.d. 21 June 2016 (ECLI:NL:GHARL:2016:5041) ruled in favour of a consignee who claimed from the carrier damages incurred as a consequence of a failure to comply with instructions regarding unloading of a fragile consignment. The transport order contained a written instruction to unload the fragile consignment only in presence of a specified person, a representative of the consignee. In violation of the issued instructions, the driver unloaded the goods upon arrival at the place of delivery before the designated representative of the consignee arrived to supervise the unloading process. The court ruled that the carrier cannot benefit from the defence that damage occurred after the contract of carriage had been already discharged, thus beyond the period of mandatory responsibility of the carrier. Based on the ‘Transfennica’ ruling, the court stated that a written instruction regarding unloading shall be construed as an additional condition which the carrier was ought to abide. According to Dutch law the non-fulfilment of the specified condition gives ground for liability of the carrier for the damage to the goods.
Even more remarkable is the judgment in the case of DSM against DB Schenker rendered in the first instance by the court of Rotterdam on 29 June 2016 (ECLI:NL:RBROT:2016:4960). In this case the court exercised an analogous application of both the ‘Cargofoor/RTT’ and the ‘Transfennica’ rulings of the Dutch Supreme Court to a rail carriage. As stated in abstract, the circumstances of the case are as follows. A train with five wagons containing extremely poisonous and highly flammable acrylonitrile derailed near Wettere (Belgium). The investigation established that the train derailed due to the mistake of the engine driver, who being too tired after his night-time service, had ‘missed’ a warning sign prescribed to lower the speed (the train moved with the speed of 84 km/h instead of 40 km/h). A large fire, risk of explosion, environmental pollution and evacuations follow. DSM, producer of the cargo and which instructed DB Schenker to carry it, assisted in the clean-up operation. DSM claimed from contractual carrier DB Schenker NL compensation for the lost wagons, the clean-up costs and of all further damages suffered as a consequence of the incident.
In turn, DB Schenker tried to avail itself under the regime of limitation of liability of the carrier stipulated in the mandatory applicable CIM. However, it is established by the court that in this particular case Cotif-CIM did not compulsory apply. Furthermore, the contractual choice-of-law clause in conjunction with the conflict of laws rules of the Rome II Regulation provided for application of Dutch Law. And in terms of the recent case law of the Dutch Supreme Court, the court of Rotterdam ruled that the mandatory liability regime for rail transport does not preclude further damages being awarded. The court sees no reason to deviate in rail transport cases from the reasoning of the Dutch Supreme Court with respect to the CMR for road transport cases (‘Cargofoor/RTT’ and ‘Transfennica’). In line with the foregoing, the specified damages were awarded to DSM, under condition though, that where certain damage must be qualified as damage resulting from loss of or damage to the goods or from exceeded transit time, DB Schenker is not liable for such damage beyond the limits imposed by CIM/Title 8.18 Dutch Civil Code.
Legal Counsel Julia Konakova is always ready to answer your questions (e-mail: j.konakova@amice-advocaten.nl).