Netherlands law firm AKD Prinsen Van Wijmen says a recent decision of the Dutch Supreme Court indicates that, whilst Holland remains an extremely carrier-friendly jurisdiction for disputes under the Convention on the Contract for the International Carriage of Goods by Road (CMR), a much stricter approach is to be adopted to the Act of God exemption from liability for loss and damage under CMR.
In its April 24 decision in Philips Electronics NV v Vos Logistics, the Supreme Court upheld the earlier decisions of the court of first instance and the Court of Appeal in finding that Vos Logistics could not rely on the CMR Article 17 (2) Act of God defence in respect of the theft of a consignment of electrical goods whilst enroute by road from Belgium to Warsaw, Poland.
Noting that the driver of the consignment knew the valuable nature of the goods, and the high risk of theft associated with them, the Court of Appeal identified a number of factors which it considered significant in terms of the theft. Only one driver had been employed during transit, where two would have provided additional security. The leg of the journey where the theft occurred was undertaken at night, with very little traffic on the roads, and the vehicle was not driven as part of a convoy of trucks. Additionally, the driver was not familiar with the Warsaw area, having never driven there before.
Jos van der Meché, a partner with AKD Prinsen Van Wijmen, said, “The Dutch courts have historically been regarded as generally pro-carrier in their rulings, and they certainly remain so with regard to, for example, relying on the CMR limitation in case of alleged wilful misconduct. But the Supreme Court’s upholding of the decision in Philips v Vos Electronics confirms that carriers will have to demonstrate a greater level of care and diligence in order to bring themselves within the protection of Article 17 (2) of CMR.
“The inference to be drawn from all three court decisions in this case is that the carrier could have done more to protect against the risk of theft. It seems likely that, absent a proper demonstration of measures taken to ensure the safety and security of valuable consignments, carriers will continue to find it difficult to bring themselves within the Act of God exemption under CMR before the Dutch courts.”