Charlotte Van Steenderen, Van Steenderen Mainport Lawyers, Rotterdam

Ref: Judgment of the Zeeland – West-Brabant District Court dated 14 December 2022 in the proceedings between Achmea Schadeverzekeringen N.V., plaintiff and  Bleckmann Nederland B.V., defendant sub 1 and Nord Cargo B.V., defendant sub 2.

The facts

O’Neill ordered Bleckmann to (arrange to) transport a shipment of clothing from Oldenzaal (The Netherlands) to Spain, for which Bleckmann in turn engages Nord Cargo. Nord Cargo carries out the first part of the route itself and engages a sub-carrier for the second part of the transport, from France to Spain.

After delivery, Nord Cargo reports first to Bleckmann and then also to O’Neill that part of the shipment has gone missing. Nord Cargo compensates damage up to the CMR limit to Achmea, O’Neill’s insurer. Achmea claims full compensation from Bleckmann and Nord Cargo.

The proceedings between Achmea and Bleckmann

A contractor wishing to act as a freight forwarder in the context of a transport contract must clearly present itself as such when entering into the contract, failing which it must in principle be assumed that a contract of carriage has been concluded, and that the contractor can be qualified as a carrier. Bleckmann acted in accordance with these provisions and acts as a freight forwarder vis-à-vis O’Neill. This follows, inter alia, from the applicable framework agreement.

Article 8:1740 Dutch Civil Code (“DCC”) stipulates that a legal claim based on a forwarding contract is time-barred by the expiry of nine months and that this period starts to run with the commencement of the day, following the day on which the principal knew that the forwarding agent did not comply with his obligations to provide notices and information (within the meaning of Article 8:63 DCC).

Achmea informed Bleckmann in writing before the end of this period that it believed Bleckmann was not fulfilling its obligations to provide notices and information. This started the limitation period. The writ of summons was served on Bleckmann before the expiration of the applicable limitation period.

The fact that Achmea only argued on the occasion of the oral hearing that its claim can (also) be awarded on the grounds of violation of Article 8:63 DCC, does not mean that Achmea introduced a new claim, which was already time-barred at the time of the hearing. After all, there is no new claim if the claim lodged by way of an increase of the claim rests on the same legal and factual basis as with which the proceedings were instituted (Dutch Supreme Court 23 May 1997, NJ 1997/ 531 and Dutch Supreme Court 8 October 2004, NJ 2004/659).

In the present case, the legal basis remained the same: Achmea accuses Bleckmann of imputably failing to perform the contract entered into between O’Neill and Bleckmann. Also, the facts outlined by Achmea to substantiate its reliance on violation of Article 8:63 DCC are the same as the facts it outlined in its writ of summons. Moreover, Bleckmann’s interests were not harmed, in the sense that it had ceased to consider this discussion and had not secured any evidence. Achmea’s claim against Bleckmann is therefore not time-barred.

However, the Court finds that Bleckmann did not violate its obligations under Article 8:63 DCC, because it shared an investigation report and a police report with O’Neill, which showed, among other things, that Nord Cargo had been engaged by Bleckmann for the transport. This made it clear to O’Neill that it had to turn to Nord Cargo.

The cargo interests never requested a freight forwarder’s declaration. Article 8:63 paragraph 2 DCC should be seen as a provision that accommodates the forwarder’s principal, but it is up to the principal to activate this tool. Dutch law provides for the possibility of the forwarder’s declaration so that an assignment is no longer necessary. Bleckmann can therefore also not be blamed for not assigning its claim rights to the cargo interests.

Moreover, Achmea has filed a (partially) successful recovery action against Nord Cargo without a forwarder’s declaration or assignment of rights. Indeed, Nord Cargo has paid the damages up to the CMR limit and Nord Cargo does not dispute O’Neill/Achmea’s claim entitlement. In this sense, Achmea’s interests have not been harmed.

Bleckmann also fulfilled its legal obligation to provide sufficient information to enable cargo interests to recover damages from Nord Cargo. Bleckmann was required to provide only that information which it possessed, or could reasonably provide, and only insofar as it could serve to recover damages. Bleckmann fulfilled this duty. In that context, it is relevant that much, if not all, of the information was in Nord Cargo’s domain. They are cargo interested parties who wish to bring a claim against the carrier and in that sense they (also) have their own responsibility in the context of building their file.

Achmea’s claims against Bleckmann must therefore be rejected.

The proceedings beween Achmea and Nord Cargo

Nord Cargo already paid the damages up to the CMR limit, but Achmea claims full damages from Nord Cargo based on violation of an aggravated duty to state reasons. An aggravated duty to state reasons can be assumed based on the circumstances of the case, but always depends on the party’s debate. Thereby, the party who bears the burden of proof is first in line and it is then up to the other party to dispute the asserted claim. What demands can be made on the quality and substantiation of that contestation depends on the quality of the assertion and the substantiation provided. As far as data are needed to substantiate a proposition which are in the domain of the other party and as far as the party who bears the burden of proof does not have access to them, it is rather up to this other party, within the framework of its contestation, to provide such factual data that it provides the party who bears the burden of proof with leads for a possible further substantiation of its proposition.

Achmea assumes that the drivers who transported the shipment from France to Spain are responsible for the loss. Because the burden of proof is on Achmea, Achmea was first to substantiate this scenario. It failed to do so. On the other hand, in the context of its dispute that the drivers were involved in the disappearance, Nord Cargo has provided sufficient leads to enable Achmea to further substantiate its claims. Achmea subsequently failed to use these leads to further concretize and substantiate the scenario it outlined. Therefore there is no violation of a duty to state reasons.

To the extent that it should nevertheless be assumed that Nord Cargo was under an increased obligation to state reasons, it has not violated such an obligation either. What is decisive here is what information Nord Cargo has provided, rather than what questions cannot (yet) be answered after receiving this information. After all, it is a matter of a sufficiently substantiated dispute and not of a duty of proposition or burden of proof on Nord Cargo.

Nord Cargo has sufficiently substantiated its contestation and the scenario of the loss it has pleaded. In this regard, it is taken into account that cargo interests only appointed its expert relatively late and that this expert did not conduct an on-site investigation. This is at Achmea’s risk in view of the burden of proof. Insofar as Achmea had wanted more information about the concrete course of events, it could have taken the initiative itself. For example, it could have alternatively taken the position that there was intent or conscious recklessness on the part of Nord Cargo and/or its sub-carrier. In that context, it could have requested a court order for a (preliminary) examination of witnesses or expert opinion, or it could have made use of the options offered by Article 843a Dutch Code of Civil Procedure (“DCCP”).