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Anonymous v. A.I.G. Europe

2009 June 2

Court: Netherlands Supreme Court

Date: May 29th, 2009

LJN number: BH4041

Case: CMR carriage by road of household electric appliances from Groningen in the Netherlands to Moskow, Russia. In Moscow, the goods are not delivered to the consignee OOO "Stroyinvest-K", allegedly because a representative of a company named Daiker Company or Dyker Company gave instructions to the driver to deliver the goods at a warehouse in Balashika, a village near Moskov, where the goods were discharged and loaded on a truck with Russian registration. The driver handed the accopanying customs documents to an unknown indivudual and headed home. The cargo never reached the consignee and was lost. Damages amounted EUR 202,819.41 and cargo insurers initiated proceedings against the carrier. As the total of the damages exceeded the limited liability of the carrier under the CMR convention, the issue before the courts was whether the carrier was entitled to avail himself of the provisions which limit his liability (Art. 29 CMR). Was the damage 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? If so, the carrier would be obliged to pay the full claim.

In two landmark cases the Netherlands Supreme Court has already ruled that under Dutch law, the equivalent of wilful misconduct is acting "recklessly with knowledge that damage would probably result". In these rulings the Supreme Court moreover ruled that 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.

In the case at hand the claimant alleged that this was indeed a case of reckless behaviour, as the driver had complied with instructions of persons he did not know, had delivered the goods at another location then the location as specified at the consignment note and as the driver was familiar with the frequency of cargo theft in Russia. Claimant also availed over a report of investigation, that supported its allegations. The Defendant disputed that the driver acted recklessly with knowledge that damage would probably result, but he did no provide written proof to support the denial. Both the Court and the Court of Appeal ruled against the carrier. The carrier appealed to the Netherlands Supreme Court, alleging that the claimants should have proven the driver’s subjective awareness of the risks involved.

Held: First the Netherlands Supreme Court confirmed the January 5th, 2001 decisions regarding the interpretation of wilful misconduct. Subsequently the Netherlands Supreme Court ruled that the Court of Appeal did not err where it decided that the claimant had brought forward a good cause to break the CMR-limit due to wilful misconduct of the driver and that it was then up to the defendant to come forward with a substantiated defence, which it failed to do. Hence, the Court of Appeal was allowed to disregard the mere denial by the defendant and the award of the Court of Appeal was upheld.

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