DSV Road v Sneltransport Heidenend
DSV Road B.V. and Amlin Corporate Insurance N.V. v Sneltransport “Heidenend” Tegelen B.V.
Amsterdam Court of Appeal: A.S. Arnold, W.H.F.M. Cortenraad and H.M. ten Haaft, LJN BL9955, April 2, 2010
Ms I.M.C.A. Reinders Folmer for DSV et al
Mr A. Knigge for Heidenend
CARRIAGE OF GOODS BY ROAD: CMR CONVENTION: WHETHER SHIPPER-PACKED TRAILER CAN BE CONSIDERED ‘GOODS’ WITHIN ART.17.2
Where a shipper presents for carriage under the CMR convention a trailer stuffed with third-party goods, the trailer can also be considered as ‘goods’ for the purposes of Art.17.2 of the Convention. In consequence, the carrier was not liable for the subsequent loss of the trailer and its contents by fire originating from a fault in the trailer.
Case Note contributed by Nigel Margetson, Advocaat in the Rotterdam law firm of Hampe Meyjes Advocaten and an International Contributor to this Website
Under a contract of carriage of goods over the road, the Carrier Sneltransport “Heidenend” Tegelen B.V. (“Heidenend”) agreed to transport a trailer of goods from Germany to the Netherlands for DSV Road B.V. (“DSV”). DSV did not own the trailer but had hired it from a third party. The trailer was loaded with goods that belonged to other third parties. Heidenend had not been involved with the loading of the trailer. Heidenend’s driver connected his truck to the trailer and commenced the transport. Within one hour, the trailer caught fire and the driver unhooked his truck. The fire completely destroyed the trailer and most of the goods.
The CMR convention applied to the carriage. DSV compensated the owner of the trailer and of the destroyed goods for their loss and held Heidenend liable for the damage that it had suffered due to the loss of the trailer and the goods. Heidenend invoked Article 17 par 2 CMR to relieve it from liability. That article says:
“The carrier shall, however, be relieved of liability if the loss, damage or delay was caused by the wrongful act or neglect of the claimant, by the instructions of the claimant given otherwise than as the result of a wrongful act or neglect on the part of the carrier, by inherent vice of the goods or through circumstances which the carrier could not avoid and the consequences of which he was unable to prevent.”
The court of first instance agreed with Heidenend that Article 17 par 2 CMR applied and held that, as the fire had been caused by a fault in the trailer, DSV were not liable for the loss of the trailer and the goods. For that reason, the court of first instance rejected DSV’s claim against Heidenend.
In the appeal proceedings DSV argued that the Court of first instance was wrong not to apply Article 17 par 3 of the CMR convention, which says:
“The carrier shall not be relieved of liability by reason of the defective condition of the vehicle used by him in order to perform the carriage, or by reason of the wrongful act or neglect of the person from whom he may have hired the vehicle or of the agents or servants of the latter.”
The court of appeal said the following concerning the question whether a trailer could be included in the term “goods” as meant in article 17 CMR:
“When construing the meaning of the term “goods” in article 17 CMR, the starting point is Articles 31 and 32 of the Vienna Convention on the Law of Treaties. The starting point therefore is the ordinary meaning to be given to the mentioned term whilst considering the context and the object and purpose of the CMR, whereby the prevailing view in the literature and legal precedents of the States that are a party to the CMR must be considered.
Based on this, it is relevant that Heidenend received the trailer and the goods as one single unit with the purpose of transporting them together to the same place of delivery; that Heidenend was not involved with the loading of the trailer and, before the transport commenced, only connected the loaded trailer to the truck, and that the trailer - under lease from a third party – belonged to DSV, who put the trailer at Heidenend’s disposal in a loaded condition so that Heidenend could deliver the trailer at a different destination.
It follows from these circumstances that the trailer can be considered to be goods as meant in article 17 CMR. The fact that the trailer is also a vehicle, as meant in article 1, par 2 CMR, and that, in consequence, it can also be considered to be the vehicle that Heidenend used to execute the carriage of the goods loaded on that trailer, in the manner meant in art. 17 par. 3 CMR, does not change the fact that the term “goods” in article 17 CMR can also be construed to mean the trailer. In the circumstances of this case, such a construction is appropriate. In particular, this construction is appropriate, in that the carriage of the goods which were loaded on the trailer differs in no way from the transport of the trailer itself, so that - in the context of article 17 CMR as well as in the light of the object and purpose of the CMR - the trailer can be considered to be goods in the same manner as the goods loaded onto the trailer. It cannot be said that the prevailing opinion in the case law and literature of the states that are party to the CMR oppose this construction.”
This judgment clarifies the relationship between article 17 par 2 and art. 17 par 3 in the event that a carrier transports a trailer that is not owned by itself. In particular, the judgment makes clear that a vehicle as meant in article 1, par. 2 CMR can in fact also be considered as goods in the terms of article 17 CMR.