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

The Dutch Supreme Court rendered a judgment on 16 September 2022 (ECLI:NL:HR:2022:1222) in a case answering the question if CMR contains a rule of burden of proof regarding the question whether goods found by customs during transport are the same as goods given by sender to carrier?

The facts of the case

This case concerns the road transport of a cargo consisting of four pallets (4 pallets, 112 boxes, 1,450 kg) with boxes containing – according to the CMR waybill – kitchenware from the Netherlands to England. The contents of the boxes were not visible. The boxes had no printing. The CMR is applicable.

During an inspection in France, the cargo was found not to contain kitchenware but cigarettes, for which no excise duties had been paid. Carrier [plaintiff] held sender [defendant] liable for its damages. Sender relied on the fact that it had not been shown that the cargo found by the French customs found was also the cargo it had given to carrier in the Netherlands.

In proceedings before the Dutch court, the carrier seeks an order that the sender pay compensation for the damage that carrier suffered, estimated at EUR 24,583.43, as well as outstanding invoices totaling EUR 1,718.20. In addition, carrier sought a declaratory judgment that it is not liable to sender for the damages that sender claims to have suffered as a result of the loss of the consignment of kitchen items.

The District Court Limburg granted the carrier’s claims (decision 3 January 2018, ECLI:NL:RBLIM:2018:4). The Court of Appeal ’s-Hertogenbosch (decisions 24 December 2019, ECLI:NL:GHSHE:2019:4668 and 12 January 2021, ECLI:NL:GHSHE:2021:26) set aside the judgment and dismissed carrier’s claims. The Court of Appeal held that the carrier failed to prove that the boxes given to carrier by sender were the same boxes as those found by French customs (final judgment, para. 6.8.1).

The legal grounds and the findings of the Dutch Supreme Court

In cassation the opinion of the court of appeal is central that on [claimant] the burden of proof rests that it is the same cargo and that [claimant] has not succeeded in this proof.

The Supreme Court considers:

3.2.1 Questions of interpretation of provisions of the CMR should be answered according to the standards of Articles 31 and 32 of the Vienna Convention on the Law of Treaties of 23 May 1969 (hereinafter: Vienna Convention). Under Article 31 paragraph 1 of the Vienna Convention, the provisions of the CMR are to be interpreted according to the ordinary meaning of the terms of these provisions taking into account the context and in the light of object and purpose of the CMR.

It follows from Article 31 paragraph 3, introductory sentence and (b), Vienna Convention that in addition to the context, account must be taken of any subsequent use in the application of the Convention which allows agreement of the parties to the Convention on the interpretation of the Convention, which implies that the prevailing view in the case law and literature of the contracting states a primary means of interpretation in the interpretation of the CMR.

Furthermore, the CMR cannot be interpreted on the basis of history of the creation of the Convention because no record or documentation of the preparatory work (“travaux préparatoires”) has been published or is otherwise available for public inspection, so that the provisions of Article 32 Vienna Convention cannot be applied.

 3.2.2 The CMR contains the following provisions in the English authentic text to the extent relevant here.

Article 6 paragraph 1:

“The consignment note shall contain the following particulars:


[…](d) The place and the date of taking over of the goods and the place designated for delivery;

(e) (…)

(f) The description in common use of the nature of the goods and the method of packing, and, in the case of dangerous goods, their generally recognized description;

(g) The number of packages and their special marks and numbers;

(h) The gross weight of the goods or their quantity otherwise expressed;

(i) (…);

(j) The requisite instructions for Customs and other formalities;

(k) (…)“

Article 7 paragraph 1:

“The sender shall be responsible for all expenses, loss and damage sustained by the carrier by reason of the inaccuracy or inadequacy of:

(a) The particulars specified in article 6, paragraph 1, (b), (d), (e), (f), (g), (h) and (j); […]


Article 8:

“1. On taking over the goods, the carrier shall check:

(a) The accuracy of the statements in the consignment note as to the number of packages and their marks and numbers, and

(b) The apparent condition of the goods and their packaging.

  1. […]
  2. The sender shall be entitled to require the carrier to check the gross weight of the goods or their quantity otherwise expressed. He may also require the contents of the packages to be checked. The carrier shall be entitled to claim the cost of such checking. The result of the checks shall be entered in the consignment note.”

Article 9:

  1. The consignment note shall be prima facie evidence of the making of the contract of carriage, the conditions of the contract and the receipt of the goods by the carrier.
  2. If the consignment note contains no specific reservations by the carrier, it shall be presumed, unless the contrary is proved, that the goods and their packaging appeared to be in good condition when the carrier took them over and that the number of packages, their marks and numbers corresponded with the statements in the consignment note.”

Article 11

  1. For the purposes of the Customs or other formalities which have to be completed before delivery of the goods, the sender shall attach the necessary documents to the consignment note or place them at the disposal of the carrier and shall furnish him with all the information which he requires.

  2. The carrier shall not be under any duty to enquire into either the accuracy or the adequacy of such documents and information. The sender shall be liable to the carrier for any damage caused by the absence, inadequacy or irregularity of such documents and information, except in the case of some wrongful act or neglect on the part of the carrier.

  3. (…)”

The Supreme Court continues:

“3.2.3 Pursuant to Article 7 CMR, the sender is liable for damages suffered by the carrier for damage resulting from the inaccuracy or incompleteness of the indications on the consignment note concerning, inter alia, the nature of the goods and the manner of packing, the number of packages, their special marks and numbers, the gross weight of the goods and the particulars required for the fulfillment of customs and other formalities necessary.

Article 8 CMR implies that the carrier must only examine the accuracy of the number of packages specified in the consignment note and their marks and numbers, unless the sender demands that the carrier also examines the weight or the quantity or the contents of the packages. Pursuant to Article 11 CMR, the sender is, among other things inter alia, responsible for providing the information and documents necessary to comply with customs and other formalities. When the sender fails to fulfill that obligation, he is liable for damages suffered by the carrier as a result.

3.2.4 With regard to the question whether in a case such as the present the carrier must prove that the goods found by the customs authorities in transit are the same as those handed over by the sender to the carrier, or whether the sender must prove that the goods found by the customs authorities are not the goods he has handed over to the carrier the CMR contains no express rules. Nor are such rules contained in the Articles 6, 7, 8, 9 and 11 CMR cited above in 3.2.2.

Given the wording of Article 9 CMR, considered in their context and in light of object and purpose of the CMR, the consignment note provides only a presumption of the correctness of what is mentioned in that provision, including that the number of packages and their marks and numbers at the time of acceptance by the carrier were in accordance with the statements in the consignment note (Article 6 paragraph 1 sub g in conjunction with Article  8 paragraph 1 CMR). That presumption of proof does not extend to the question whether the goods found in transit are the same as the goods given to the carrier by the sender.

It follows from Article 8 paragraphs 1 and 3 CMR, read in conjunction, that the carrier is not obliged to examine the contents of the cargo without an order to that effect from the sender. These provisions do not imply that, if the sender did not instruct the carrier to examine the contents of the cargo and the number of packages of the cargo found corresponds with the consignment note, the burden of proving that the goods found during carriage are not the same as those goods he has given to the carrier rests on the sender.

The case law and literature of the various CMR Contracting States do not reveal a prevailing view of the aforementioned provisions of the CMR. All this means that not the CMR, but national law is decisive for the distribution of the burden of proof as to whether the goods found by the customs authorities during transport are the same as the goods handed over to the carrier by the sender.

The Supreme Court confirms the judgment of the Court of Appeal and denies carrier’s claims.