Charlotte J. van Steenderen, Van Steenderen Mainport Lawyers, Rotterdam

The District Court East-Brabant rendered an interim judgment on 30 March 2022 in a case concerning damage sustained to a consignment of pork en route from the Netherlands to Poland (ECLI:NL:RBOBR:2022:1193).

The facts of the case

Road transport in June 2019 by Mik Piosik on behalf of Pali of a consignment of pork from Geldrop, the Netherlands to Poland. Pali performs the loading and stowage in Mik Piosik’s trailer. During transport, part of the meat falls into the trailer, after which contamination with flies and maggots occurs. The consignee in Poland refuses the meat. The loss amount (EUR 34,304.65), minus the deductible, is paid to the Polish consignee by Pali’s transport insurer (Chubb) on 29 August 2019. Subsequently, by email dated 5 September 2019, Pali notifies Mik Piosik that it is waiving further action. In these court proceedings, Pali and Chubb claim damages.

The legal grounds and the decision of the Court

In order to assume estoppel it is necessary that Pali has behaved in a way that is incompatible by the standards of reasonableness and fairness with the subsequent assertion of its right. There must be special circumstances on the basis of which a legitimate expectation was created in Mik Piosik that Pali would no longer assert its claim, or as a result of which Mik Piosik’s position would be unreasonably aggravated or disadvantaged if Pali were to do so after all. In addition, by statements related to the exercise of rights, the entitled party can create the impression that it is abandoning the exercise of rights. Pali forfeited its remaining rights of action through the email.

When Pali sent the email to Mik Piosik, Pali had – at most – remaining rights of action with respect to other damages related to the claim. After all, Chubb was already subrogated to Pali’s rights with respect to the damage claim itself. Mik Piosik was not entitled to rely on Pali’s email that Chubb would also refrain from bringing a claim. Chubb therefore did not forfeited its rights.

It is for Chubb to assert and, where necessary, prove that the pork was received in good condition by Mik Piosik, after loading and stowage thereof by Pali. Based on the evidence, it must be assumed that the flies entered the trailer after receipt of the pork, and thus the damage to the pork due to the flies and maggots occurred during transport. Mik Piosik is therefore liable in any case for that part of the damage caused by the contamination with flies and maggots.

The carrier, invoking the provisions of Article 17 paragraph 4 sub c CMR, may suffice, in case of dispute, to prove that (i) the handling, loading, stowing or unloading of the goods was done by the consignor or consignee, and (ii) in view of the circumstances of the case, the loss or damage could have resulted therefrom (Dutch Supreme Court 18 May 1979, S&S 1979/73). Mik Piosik has sufficiently substantiated that the falling of the meat could have been the cause of improper stowage. Given this, it is presumed that the improper thrust caused the falling of the meat. Chubb has presented sufficient facts and circumstances to refute Mik Piosik’s defences and Chubb is therefore admitted to present rebuttal evidence.

In view of Article 17 paragraph 5 CMR, Chubb is also given the opportunity to express its opinion on the question to what extent the two factors causing damage (contamination with flies and maggots on the one hand and possibly incorrect stowage by Pali on the other hand) have contributed to the damage.