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Recoverability of excise duties under the CMR Convention

2009 April 16
by Hein Kernkamp

Phillip Morris Holland et alia v. Van der Graaf Waalwijk

Court: Netherlands Supreme Court

Date: July 14th, 2006

LJN number: AW3041

Case: International carriage by road of a consignment of cigarettes in two trucks from the Netherlands to Italy. The drivers left the trucks unattended at an unguarded parking lot in Italy. The trucks were stolen and later recovered, without the consignment of cigarettes. Philip Morris, who as a result of the theft was not able to clear accompanying customs documents, was confronted with a substantial claim for duties and other charges from the Customs and Excise Authorities and claimed reimbursement from the CMR carrier. Under Article 23 section 4 CMR, the carrier is liable for compensation of Customs duties and other charges incurred in respect of the carriage. Philip Morris argued that excise duties were other charges as set out in Article 23 section 4 CMR.

Held: The Netherlands Supreme Court ruled that other charges related only to those charges incurred for the purpose of carriage. Because the excise duties had to be paid due to the inability to clear accompanying customs documents they were incurred only as a result of the loss of the goods and therefore did not have any connection with the carriage of the goods. The Supreme Court added that this decision is in line with the narrow interpretation of the scope of Article 23 section 4 CMR is in line with Dutch and German legal literature and case law and with the CIM convention, that served as an example for the CMR. A broader interpretation would lead to within reason unforseeable and unlimited liabilities of the carrier.

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