Charlotte Van Steenderen, Van Steenderen Mainport Lawyers, Rotterdam

Ref: Judgment of the Gelderland District Court dated 28 June 2023 in the proceedings between HDM N.V., plaintiff in the main action, defendant in the counterclaim proceedings and Addink Distributie B.V., defendant in the main action, plaintiff in the counterclaim proceedings.  

The facts

For more than 20 years, Addink has provided HDM with various transports for the delivery of timber from Belgium to HDM’s Dutch customers. The pallets on which the wood is loaded remain the property of HDM and constitute packaging. As of 2013, HDM keeps track of how many pallets are loaded and how many pallets are unloaded back at HDM’ premises by Addink. To this end, a signature is placed on an overview of the pallet positions by both the Addink driver and HDM. The overviews show whether more or fewer pallets were returned than loaded in that particular month and how many.

The following text is always included at the bottom of these statements: ‘Please clear the current outstanding balance as soon as possible!!!’

In the period between January 3, 2022 and June 2, 2022, HDM sends monthly emails to Addink with overviews of the pallet balances per year with the following text:

‘It is therefore urgent that you return these europallets to us! Please let me know when you can send us these 1688 europallets of the year 2020. And what about the balance of all other years? When can we expect that? In anticipation of your URGENT ACTION thank you in advance.’

On June 17, 2022, HDM sends an invoice to Addink in the amount of EUR 196,052.50 with the description ‘recharging pallets’. HDM claims payment of this invoice in these proceedings.

The decision of the Court

HDM offered pallets for transportation of the wood and Addink delivered the wood, including the pallets, to HDM’s customers. Any pallets remaining with those customers were taken delivery of by Addink and returned to HDM. Moreover, Addink acknowledged that it was common practice, if it took delivery of pallets from HDM at a customer’s premises, to deliver those pallets back to HDM when it came to pick up a next load there.

HDM sent invoices to Addink regarding unreturned packaging. At least in 2011, 2013, 2018 and 2019, HDM sent invoices to Addink, which Addink also paid. Although according to Addink, the invoices were allegedly paid only to preserve the relationship and that Addink disagreed with HDM’s initiated set-off of these invoices, no express protest against payment or set-off was evidenced by Addink.

In view of the foregoing, it is concluded that an agreement was entered into between the parties for the return of packaging by Addink to HDM. Addink returned less packaging than it loaded at HDM. Thereby, Addink failed to fulfill its obligations under the contracts of carriage.

The statute of limitations under the CMR has a broad scope. It covers all claims that are sufficiently connected to the CMR contract of carriage. If packaging has been used in a transport to which the CMR applies, the claim relating to this packaging shows sufficient connection with the transport contract (Dutch Supreme Court 18 December 2009, S&S 2010/25 (Fortis/UniData) and Court of Appeal ‘s-Hertogenbosch 8 July 2014, S&S 2015/42 (Decor Handelsmij/Wetron Transport)). This means that the CMR’s statute of limitations also applies to a claim related to returnable packaging, such as the return of pallets.

The interruption of the limitation period in this case is governed by Dutch law pursuant to Article 32 paragraph 3 CMR. This means that, pursuant to Article 3:317 paragraph 1 of the Dutch Civil Code (“DCC”), a current statute of limitations is interrupted by a written demand or written notice that the creditor unambiguously reserves the right to performance. The mere sending of written summaries with pallet positions has no interruptive effect, as this has not yet given any indication that a claim may be filed.

In the emails that HDM sent to Addink from January 2022 through June 2022, the arrears in returnable pallets per year are named and Addink is urged to take action. It follows from these emails that HDM repeatedly and unambiguously communicated to Addink that it demanded fulfillment of the agreement in place between the parties regarding the return of packaging. It must have been clear to Addink that HDM expected fulfillment of the agreement to return the pallets. Therefore, these emails have interrupted the statute of limitations, but only on claims that were not yet time-barred on January 2, 2022. Given the monthly statements sent by HDM, it is determined that the claims for a deficit of 1,014 pallets are not yet time-barred. The Court orders Addink to pay an amount of 1,014 x EUR 17.50 = EUR 17,745.- to HDM.