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Sainath Enterprises et alia v. KLM

2009 March 24
by Hein Kernkamp

Court: Netherlands Supreme Court

Date: April 19th, 2002

LJN number: AD9137

Case: Air carriage from Antwerp via Amsterdam and New Delhi to Jaipur of a drum with a gross weight of 68 kg, said to contain 61 726 kg colored gemstones. KLM carried to New Delhi, where Indian Airlines took over the consignment for carriage to Jaipur. During the last leg thieves managed to steal 7 191 kg of emeralds, with a value of US$ 160.950. Sainath, as consignee, claims damages form KLM. Alternatively UCG, as consignor, and its insurers claim US$ 76.850 for damages sustained. KLM denies liability. Where KLM did not perform the transportation during which the loss took place, and where KLM has not assumed liability for the whole journey, KLM cannot be held liable. This dispute asks for a fundamental decision on the controversy whether the consignor and the consignee may bring claims simultaneously or whether the fact that the right of disposition passes from the consignor to the consignee in accordance with Articles 12 and 13 of the Warsaw Convention means that also the right to bring claims for damages passes from the consignor to the consignee.

Held: The Netherlands Supreme Court held that the right to bring claims for damages passes from the consignor to the consignee, simultaneously with the moment that the right of disposition passes from the consignor to the consignee in accordance with Articles 12 and 13 of the Warsaw Convention. Although this cannot be derived from the text of the Warsaw convention itself, the Supreme Court ruled that this interpretation of the Warsaw Convention is in conformity with the intention of the parties during the negotiations leading to the Convention (see: Compte rendu de la VIième séance du CITEJA 29/05/28, Annex C, Rapport H. de Vos, 2ième commission, p. 251.) and in conformity with the general approach in international legal literature, amongst which D. Goedhuis, National Airlegislations and the Warsaw Convention, 1937, p. 181-183; H. Drion, Limitation of Liabilities in International Airlaw, diss. 1954, p. 330; J. Basedow (red.), Münchener Kommentar zum Handelsgesetzbuch, Band 7, 1997, WA 1955, Art. 14, RdNr. 5, p. 2008 (Kronke); E. Giemulla & R. Schmid (ed.), Warsaw Convention, Art. 14, nr. 4 en art. 18, nr. 79 (Müller-Rostin).

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