Arnold Van Steenderen, Van Steenderen Mainport Lawyers, Rotterdam
Ref: Rotterdam District Court, judgment of 22 January 2020
1.CMR case. Jurisdiction. Arbitration clause in article 23 Dutch Forwarding Conditions (‘Fenex Conditions’) Article 1022 DCCP. Article 1021 DCCP. It is established that parties at the start of their contractual relationship expressly agreed that defendant would always act as a freight forwarder and that the Fenex conditions would apply to their contractual relationship. The arbitral clause in Article 23 of the relevant “latest version” of the Fenex Conditions in this case complies with Article 33 CMR. The incidental claim of the defendant therefore succeeds and the court has no jurisdiction. Arbitration in cross-border road transport has yet to assert itself in the field of road transport. We can only speculate as to the reasons why. An important reason could be that in many cases the claims for damages in the CMR context do not reach the amounts in dispute for which it tends to be worthwhile to conduct arbitration proceedings that tend to be more expensive than proceedings before a state court. As a result, small and medium-sized companies, often found in road transport matters, are skeptical about the arbitration proceedings because they fear that they do not have the funds to finance the enforcement (or defence) of their legal claims. See: “Schiedsgerichtsbarkeit im grenzüberschreitenden Strassentransport – Plädoyer für ein modernes Verständnis von Art. 33 CMR”, published in: Alexander R. Markus/Stephanie Hrubesch-Millauer/Rodrigo Rodriguez/(Hrsg.), Zivilprozess und Vollstreckung national und international – Schnittstellen und Vergleiche, Festschrift für Jolanta Kren Kostkiewicz, Bern 2018
- Assertions in the main proceedings
Plaintiff VCK claims that the court should declare a judgment to be enforceable: Ruling that the defendant Marlo is liable to VCK for the damage caused by the loss of a shipment of 900 solar panels;
Condemning Marlo, against proper proof of discharge, to pay VCK € 79,942.59, to be increased by the CMR interest from the date of the summons from VCK’s lawyer, at least from the day of the summons until the day of full payment; and further:
Marlo is ordered to pay the extrajudicial collection costs;
VCK makes the following assertions in support of this:
-VCK is a logistics service provider; among other things, it takes care of the logistic handling of solar panels transported by ocean-going vessel to Rotterdam for [name of company];
-Marlo is a road haulage specialist; On 16 March 2018 VCK received an order on behalf of [A] for four shipments of solar panels destined for the recipient [B] in Tübingen, Germany;
-VCK engaged Marlo to transport these shipments of solar panels to Germany; a transport agreement was then concluded between VCK and Marlo;
-The four shipments of solar panels were unloaded from VCK’s storage facility on 28 March 2018;
-Four CMR waybills have been drawn up for the transport of the four consignments;
-Some time after commencement of the transport, VCK asked Marlo to send VCK the consignment notes signed for receipt by the recipient B; on or about 13 April 2018, after VCK’s insistence, it became clear that Marlo did not have one of the four consignment notes signed for receipt of the load at the destination; the shipment of solar panels that had been transported under this consignment note had not been delivered at destination; Marlo stated that it had tried to reach the sub-contractor engaged by Marlo to find out what had happened to the consignment of solar panels; however, there was no trace of either the load or the sub-carrier; the expert investigation carried out on behalf of Marlo’s insurance broker concluded that Marlo had come into contact with fraudsters, as a result of which the load in question had been embezzled;
-VCK was subsequently held liable by [A] on the grounds of the CMR’s liability regime;
-On the basis of its transport agreement with VCK, Marlo is liable for the damage; on the same basis VCK towards [A];
-On the basis of Article 20(1) CMR, the consignment is to be considered lost;
-Embezzlement/theft of the cargo by the carrier results in intent or deliberate recklessness on the part of the carrier, with the result that the carrier may not invoke any limitation of liability (art. 29 CMR);
-The shipment of 900 undelivered and lost solar panels represented a value of € 79,942.59; reliance on the CMR liability limit can remain undisputed as in this case the maximum liability under that limit would exceed the amount of the actual damage suffered;
-No payments have yet been made under VCK’s liability insurance; if and insofar as VCK’s insurers meet a claim from cargo interests and are therefore subrogated to VCK’s rights in this respect, VCK’s claim is also brought by virtue of an order and power of attorney from those subrogated insurers.
- The dispute in the incident
Marlo claims that the District Court, in a judgment to be declared provisionally enforceable, declare that it has no jurisdiction to take cognizance of VCK’s claims in the main proceedings, or in any event declare VCK’s claims inadmissible, and order VCK to pay Marlo’s legal costs and follow-up costs, plus statutory interest on the full costs of the proceedings, if the legal costs have not been paid within fourteen days of the date of the judgment to be given in this respect.
VCK puts forward a defence and concludes to reject the incidental claim of Marlo or at least to declare Marlo’s claim inadmissible in that claim, with an order that Marlo be ordered to pay the costs of the incident in a judgment to be declared provisionally enforceable.
The arguments of the parties are discussed in more detail below, in so far as they are relevant.
- The assessment in the incident
Since Marlo is domiciled within the jurisdiction of this court, this court is in principle competent to take cognizance of VCK’s claims against Marlo on the basis of (Article 31 paragraph 1 under a CMR (Convention of 19 May 1956 on the Contract for the International Carriage of Goods by Road) in conjunction with) Article 99 of the Dutch Code of Civil Procedure.
By virtue of article 1022 of the Code of Civil Procedure, the court before which a dispute has been brought in respect of which an arbitration agreement has been concluded must decline jurisdiction if a party, such as Marlo in this case, invokes the existence of this arbitration agreement before all defenses, unless the arbitration agreement is invalid.
Marlo is of the opinion that this court has no jurisdiction to take cognizance of VCK’s claims on account of the arbitration clause laid down in article 23 paragraph 1 of the Fenex Conditions, which in its opinion applies in this case. Marlo has conducted this defence of lack of jurisdiction in good time within the meaning of Section 1022 of the Dutch Code of Civil Procedure. Article 23 of the Fenex Terms and Conditions in the version of 1 May 2018 relevant to this case reads – to the extent relevant – as follows:
All disputes which may arise between the Freight Forwarder and his opposite party shall, to the exclusion of the ordinary court of competent jurisdiction, be decided by three arbitrators in accordance with the FENEX Arbitration Rules. The FENEX Arbitration Rules and the current rates of the arbitration procedure can be read and downloaded from the FENEX website. A dispute shall exist when one of the parties declares this to be the case.
Without prejudice to the provisions of the preceding paragraph, the Freight Forwarder shall be at liberty to submit claims for sums of money due and payable, the indebtedness of which has not been disputed in writing by the other party within four weeks after the date of invoice, to the competent Dutch court in the Freight Forwarder’s place of business. The Freight Forwarder shall also be at liberty to submit claims of an urgent nature to the competent Dutch court in the Freight Forwarder’s place of business in summary proceedings.
(…) Where applicable, arbitrators shall apply the provisions of international transport conventions, including, inter alia, the Convention on the Contract for the International Carriage of Goods by Road (CMR).
As to the applicability of the arbitration clause of article 23 of the Fenex Terms and Conditions, Marlo on the one hand submits that Marlo and VCK explicitly agreed at the start of their contractual relationship that Marlo would always act as forwarder and that the Fenex Terms and Conditions would apply to their contractual relationship and on the other hand that the Fenex Terms and Conditions apply to Marlo’s contractual relationship with VCK because Marlo has always referred to the Fenex Terms and Conditions and to the arbitration clause contained therein on, among other things, its invoices to VCK, while Marlo has always kept these invoices without protest. All this has been disputed by VCK.
Pursuant to Article 1021 of the Dutch Code of Civil Procedure, an arbitration agreement shall be evidenced by a written document that provides for arbitration or that refers to general terms and conditions that provide for arbitration and that has been expressly or tacitly accepted by or on behalf of the other party.
Marlo bases its position mentioned in paragraph 4.4 above that the parties explicitly agreed at the start of their contractual relationship that Marlo would always act as a forwarding agent and that the Fenex conditions would apply to their contractual relationship on a letter from Marlo dated 16 October 2012 – VCK qualifies this letter, which it brought into dispute itself as production 10 by summons, (initially) as a “form”. It is not disputed that this letter/form was drawn up shortly before VCK’s first assignment to Marlo and sent by Marlo and then completed and signed by Mr. [name], team leader, or at least employee, of the Customer Solar Service Desk of VCK. This completed letter/form reads as follows:
(copy of letter)
In her incidental conclusion of reply and in her pleading notes presented at the hearing, VCK (through her lawyer) disputed that the team leader was authorized to sign on behalf of VCK. However, the team leader declared himself to be authorised to sign on behalf of VCK during this hearing:
“In response to your question as to whether I contacted senior management because of the reference to the Fenex conditions, I replied that at the time I had remote contact with the director as to whether we could join forces with Marlo. I got that permission. Nothing else was discussed. We were in a hurry to find enough trucks.”
The accuracy of this statement was not subsequently disputed. In so far as Mr [name] was not authorised to represent VCK at the time this letter/form was signed, it has therefore been established that this initially unauthorised representation of VCK was confirmed by VCK.
With Marlo, the District Court is of the opinion that, in view of the wording of the letter/form, it was explicitly stated in the letter/form that Marlo would take care of VCK’s orders as a forwarding agent. In so far as VCK disputes in this incident that Marlo presented itself as a forwarding agent, it has not substantiated why this letter/the form, notwithstanding its wording, cannot be construed as a document in which Marlo presented itself as a forwarding agent. It has therefore been established that VCK and Marlo expressly agreed at the start of their contractual relationship in October 2012 that Marlo would act as a forwarding agent.
Of the terms and conditions stipulated by Marlo in the letter/form to which VCK has agreed by the signature of Mr. [name] (and the confirmation referred to above in paragraph 4.6), the provision that the Fenex Terms and Conditions, including the arbitration clause of Article 23 Fenex Terms and Conditions, apply in so far as they are applicable. See the sentence starting with “The Dutch Forwarding Conditions” and ending with “all our operations“. (In the standard text at the very bottom of this letter/form this sentence is also repeated, albeit in English). VCK has therefore expressly accepted the applicability of the Fenex Conditions, including the arbitration clause in article 23 thereof. The District Court cannot follow VCK in its reasoning that it at most follows from the letter/form that if VCK gave Marlo a forwarding order, Marlo would accept this forwarding order under the applicability of the Fenex conditions. If VCK had not wanted the Fenex conditions to apply to road transport agreements, it should have informed Marlo of this when or after signing the letter/form. It was neither stated nor proved that this was the case.
Therefore, the above mentioned in article 1021 of the Code of Civil Procedure, paragraph 4.5, for the existence of an arbitration clause has been complied with.
In view of the above, it can be left open for the time being whether the contractual relationship between the parties with regard to the 900 solar panels should be regarded as a forwarding or road transport agreement, provided that the arbitration clause on which Marlo bases the lack of jurisdiction of this court meets the requirement set out in article 33 of the CMR that the arbitration clause must state that the arbitral tribunal will apply the CMR if the CMR applies according to the provisions of that convention.
By signing the letter/form of 16 October 2012, VCK has accepted the applicability of the “latest version” of the Fenex Terms and Conditions to its agreement with Marlo. At the time Marlo invoked the arbitration clause of article 23 of the Fenex Terms and Conditions, i.e. on 12 September 2018, the roll date on which Marlo took up its incidental claim of incompetence, the version of the Fenex Terms and Conditions dated 1 May 2018 was the latest version of the Fenex Terms and Conditions. As follows from the text of paragraph 5 of article 23 of the Fenex Terms and Conditions in that latest version quoted in paragraph 4.3 above, the arbitration clause in article 23 of the Fenex Terms and Conditions at that time complied with the requirement set out in article 33 of the CMR that the arbitration clause must imply that the Arbitral Tribunal will apply the CMR if the CMR is applicable according to the provisions of that Convention.
In view of the above, this court has no jurisdiction to take cognizance of VCK’s claims.
If the unsuccessful party, VCK will be ordered to pay the costs of the proceedings.
- The decision
in the incident
declares that it has no jurisdiction to take cognizance of VCK’s claims;
Costs ( etcetera)