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Limitation of Liability – willful misconduct under Art. 23 CMR

2009 April 15
by Hein Kernkamp

Overbeek v. Cigna

Van der Graaf v. Philip Morris Holland et alia

Court: Netherlands Supreme Court

Date: January 5th, 2001

LJN number: AA9308 and AA9309

Case description: If an international road haulier is liable for loss or damage, he is entitled to limit his liability to 8,33 SDR (Special Drawing Rights) per kilogram of gross weight short or damaged (Art. 23, 3 and Art. 25 CMR). Under Article 29 CMR the carrier shall not be entitled to avail himself of the provisions which exclude or limit his liability or which shift the burden of proof if the damage was caused by his wilful misconduct or by such default on his part as, in accordance with the law of the court or tribunal seised of the case, is considered as equivalent to wilful misconduct. Where valuable goods are stolen or lost during carriage, there is always a dispute as to the question whether or not the carrier may limit his liability or not. At January 5th, 2001 the Netherlands Supreme Court decided two cases, and clarified for once and for all what should be considerd to be the Dutch equivalent of wilful misconduct.

Held: The Supreme Court of The Netherlands has ruled that under Dutch law, the equivalent of wilful misconduct is acting "recklessly with knowledge that damage would probably result". This is the same term as used in the Warsaw Convention and has given raise to similar debate, focusing on whether a subjective or objective test should be applied in determining whether the reckless actor had knowledge that damage would probably result.

The Supreme Court continued by ruling that a subjective test should be applied to the alleged recklessness; the acting person must not only be aware of the specific danger connected to his behaviour, but he must also be aware that the chance that the danger will materialize is considerably greater than the chance that the danger will not materialize, and proceed to act in spite of this awareness.

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