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Article 32 CMR and negative declaratory relief

2009 December 30

Fortis Corporate Insurance v. Uni-Data Logistics et alia

Court: Netherlands Supreme Court

Date: December 18, 2009

LJN Number: BI6315

Case: Theft of computers during CMR road carriage.

Fortis, as subrogated insurer of the party interested in the cargo, initiated proceedings before the Landgericht Stuttgard, ending in an award against the carrier in the amount of € 19.596,93, the equivalent of the limited liability under Article 23 section 3 CMR. Fortis announced further German proceedings in order to get a full compensation for the total damage sustained, upon which Uni-Data decided to initiate negative declaratory proceedings to determine the carriers non-liability in the more favourable Dutch jurisdiction (referred to by the Germans as the "Holländische Trick").

These proceedings were initiated more than one year after the incident, which gave rise to a dispute whether negative declartory proceedings are subject to prescription, and if so which period of limitation applies to such proceedings for relief. Basically there are four options. Under the various views negative declaratory proceedings are:

  • not subject to prescription, as one should always be allowed to ask the Court for a declaration;
  • subject to the one year prescription period of Article 32 CMR;
  • subject to the three year prescription period of Article 32 CMR in case of (the equivalent of) wilful misconduct;
  • subject to the one year prescription period of Article 8:1711 of the Dutch Civil Code.

The Court of first instance chose option three and ruled against Fortis. The Court of Appeal chose option one and ruled against Fortis, after which Fortis brought the case before the Netherlands Supreme Court.

Held: This case requires interpretation of Article 32 CMR, hence interpretation of uniform private law, which should be done in accordance with the rules laid down in Article 31 and Article 32 of the 1969 Vienna Convention on the Law of Treaties. Under the rule laid down in Article 31(1) of the Vienna Convention, Article 32 CMR should be interpreted in accordance with the ordinary meaning to be given to the terms of the CMR in their context and in the light of its object and purpose. Under Article 31(3), subsequent agreement and practice – to be considered together with the context of agreements and instruments made in connection with the treaty’s adoption – have a crucial role in interpretation. The Netherlands Supreme Court will not use the preparatory work of the CMR-treaty and the circumstances of its conclusion, as these are not published or readily available to the public.

From the authentic English and French text of Article 32 CMR – "an action arising out of carriage under this Convention" respectively "les actions auxquelles peuvent donner lieu les transports soumis à la présente Convention", the Netherlands Supreme Court concludes that negative declaratory proceedings fall within the scope of Article 32 CMR. This approach is in line with German Case Law (BGH 20 november 2003, I ZR 102/02, European Transport Law 2004, p. 255, BGH 20 november 2003, I ZR 294/02, European Transport Law 2004, p. 264 and BGH 20 november 2008, I ZR 70/06, European Transport Law 2009, p. 303). The difference between the wordings of Article 32 CMR (that speaks of actions) and Article 31 CMR (that speaks of legal proceedings) does not point at a different scope of application of the two Articles and should be disregarded (compare: Netherlands Supreme Court 11 februari 2000, nr. C98/207, NJ 2000, 420, OGH Österreich 18 september 1985, Transportrecht 1987, p. 219; BGH 20 november 2008, I ZR 70/06, European Transport Law 2009, p. 303).

Where the claimant in the negative declaratory proceedings claims that the damage was not the result of (the equivalent of) wilful misconduct, the applicable prescription period is the one year period of Article 32 CMR. Hence the Netherlands Supreme Court quashed the decisions and declared the case non-admissable.

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