Charlotte J. van Steenderen, Van Steenderen Mainport Lawyers, Rotterdam
On 24 March 2020 the Court of Appeal in Den Bosch (Bois-le-duc) handed down a judgment in a CMR road transport case where several parcels appeared to have been gone missing, most probably during transport from the Netherlands to Portugal. The Court of Appeal held that the CMR carrier had an enhanced obligation to disclose facts in order to enable the claimant to meet its burden of proof regarding (the Dutch fault equivalent of) willful misconduct.
R.S.J. Transportes LDA v DHL Freight (Netherlands) B.V., Court of Appeal Den Bosch Judgment of 24 March 2020
The facts of the case
RSJ was instructed by DHL to carry 10 pallets of ASUS computers from the Netherlands to Portugal. En route to Portugal, the truck and trailer were damaged in a single-vehicle accident in France. After arrival of the truck and trailer in Portugal, it was discovered that from the initial 10 pallets of ASUS computers, only three pallets remained present and that in the trailer’s remaining loading space another consignment was stored. RSJ did not provide an explanation or clarification regarding the seven missing pallets. DHL paid the full damage amount to cargo owner ASUS and subsequently commenced recovery proceedings in court against RSJ in the Netherlands.
The decision of the Court of Appeal
In its assessment the Court of Appeal put first and foremost that under the CMR limited liability is the rule and unlimited liability is the exception (for which a high threshold has to be taken). It is up to the party invoking such an exception to prove this. According to the CMR rules, this obligation and the burden of proof rest in principle on DHL (the counterparty of carrier RSJ).
RSJ did not dispute that it was subject to limited liability under article 23 section 3 CMR, now that it had loaded 10 pallets with ASUS computers, of which seven pallets never arrived in Portugal.
The Court of Appeal continues that the burden of proof of the claim for gross negligence or intent on the part of the carrier (within the meaning of article 29 section 1 CMR) rest on the person who invokes this (i.e. DHL). According to established (lower) case law, in case of loss or damage en route, the carrier is under a strengthened obligation to furnish facts for his defence. A carrier such as RSJ, who should have the factual data relating to the transport, may be required to provide those factual data in order to substantiate its contestation of DHL’s claims in order to provide DHL with points of reference for its claims. Indeed, DHL, unlike RSJ, has not had or could not have had any influence on what happened to the consignment in the time following the departure of the truck/trailer combination from the Netherlands.
In this case it was not at all clear what had happened to the seven pallets. The other consignment discovered in the trailer after the road accident in France could not have fitted into the trailer together with all 10 pallets of ASUS computers. Therefore, it appeared that the seven missing pallets must have been unloaded or transhipped sometime during transport.
The Court of Appeal held that RSJ was under an enhanced obligation to furnish facts regarding the sequence of events during the transport, and also in regard of its efforts to locate the missing parcels. The entire transport had taken place within RSJ’s control. However, RSJ provided only partial and inconsistent theories about what could have happened to the seven missing pallets. Hence, DHL could not produce real evidence of (the fault equivalent of) wilful misconduct, but was in this case able to rely on the carrier’s strengthened obligation to furnish facts.
The Court of Appeal held that RSJ did not meet this obligation. The Court of Appeal therefore assumed that the damage was caused by RSJ’s wilful misconduct or the fault equivalent thereof and ordered RSJ to pay the full damage amount to DHL.
The Dutch Supreme Court has set the bar high for breaking the CMR limits, resulting in the Netherlands being a carrier friendly jurisdiction. In order to succeed in breaking through the limits of article 23 CMR, claimants must prove that damages were caused by the carrier’s wilful misconduct or that the carrier acted “recklessly and with the knowledge that loss would probably result from it” (the Dutch fault equivalent of wilful misconduct). Claimants must produce evidence to show that a carrier or driver was involved in theft, which of course makes it very difficult to meet the burden of proof for the fault equivalent of wilful misconduct.
However, in Dutch case law it has been established that under certain specific circumstances, the claimant may be able to rely on the so-called “enhanced obligation to disclose facts” on the part of the carrier. These cases usually involve international pallet transports of goods, whereby it appears to be more difficult to get an adequate picture of the turn of events during transport. In earlier court decisions it has been held that under these certain specific circumstances – for example if the carrier fails to offer an explanation regarding the loss of the goods or if he fails to clarify the sequence of events during the transport – the CMR carrier cannot sit back and watch the claimant struggle to meet the burden of proof contained in article 29 CMR.
This strengthened obligation for the CMR carrier to furnish facts and consequently, the assumption of wilful misconduct could provide a solution for claimants in cases whereby it is clear that the loss occurred between the time of taking over the goods and the time of delivery, however it is not clear how and where the loss occurred and the carrier fails to provide information in respect of the sequence of events during transport and the circumstances of the loss.