How do I choose a CRM

CMR: Broad interpretation of the concept of successive carriers

The Hoge Raad has issued an important judgment¹ in the Netherlands on the concept of successive carriers under the CMR. He decided that the term should be interpreted broadly. A de facto (executing) carrier who takes over the goods and the consignment note from a number of carriers becomes the successive carrier according to Art. 34 CMR. The provisions on carriage by successive carriers apply to him (Art. 34 ff CMR). According to this judgment, there are extensive recourse options for shippers and main carriers.

Interpretation of "successive carriers"

According to Art. 34 CMR, three conditions must be met for the acceptance of successive carriers:

  • the transport must be the subject of a single contract concluded between the main carrier and the sender,
  • the carrier must deliver the goods and
  • take over the consignment note.

If these conditions are met, the following carrier becomes "successive carrier" and is responsible for the execution of the entire transport.

This also applies if the main carrier is a “paper carrier”, i.e. did not take over the consignment note and the goods himself and did not transport the goods himself. It is not necessary that the successive carrier has taken over the goods and the waybill from the main carrier.

A sub-carrier who fulfills the requirements of Art. 34 CMR becomes a successive carrier at the same time. It is not necessary that in the entire chain of carriers, each carrier is also a successive carrier. Only those who actually carry out the transport themselves and have taken over the goods become successive carriers.

Reasons for the broad interpretation of the term "successive carrier"

The Hoge Raad cites three arguments for this interpretation:

  • the wording of Art. 34 et seq. CMR does not lead to the assumption that the main carrier and the following carriers each have to carry out part of the transport themselves. The wording of Art. 34 CMR also allows the possibility that the successive carrier takes over the goods and the bill of lading from a different carrier than the previous carrier, e.g. from the sender.
  • The sense and purpose of the regulation on successive carriers is to increase the recourse options of the shipper and the carrier used.
  • the broad interpretation of the term corresponds to the prevailing opinion in literature and jurisprudence in the other contracting countries of the CMR.

Recourse against a successive carrier, Art. 39 CMR

A used carrier has a right of recourse against the other successive carriers involved in the transport in accordance with Art. 37 CMR. Art. 39 CMR stipulates that if the main carrier takes recourse against the successive carrier, the latter cannot object that the compensation was wrongly paid. The prerequisite for this is that the compensation has been determined by a court decision. Furthermore, successive carriers must have been properly informed of the proceedings against the main carrier and have been able to participate in them.

In the case to be decided, German courts had initially ruled that the main carrier had caused the damage recklessly and therefore had unlimited liability. The main carrier took recourse against the actual (executing) carrier who had caused the damage as the successive carrier in the Netherlands. As a subcontractor, he could have relied on Dutch case law on the concept of gross negligence, which makes breach of liability almost impossible. As a successive carrier, this objection was cut off from him under Art. 39 CMR.

Significance in practice

According to this judgment, there are extensive recourse options for shippers and main carriers. In addition to the main carrier, the shipper receives an additional debtor, the successive carrier who caused the loss or damage. But the judgment is also favorable for the main carrier who wants to take recourse against the successive carrier who caused the damage. If he takes recourse against the successive carrier in the Netherlands, he can no longer invoke the CMR limits of liability according to Art. 39 I CMR if it was established in Germany that he caused the damage recklessly.

The prerequisite for this is that the dispute has been properly announced to the successive carrier in the preliminary process. The successive carrier can avoid this "trap" if he excludes the recourse regulation of Art. 37 and 38 CMR in relation to the main carrier. According to Art. 40 CMR this is possible. Whether this succeeds in practice is another question.

________________________
¹HR, September 11, 2015, ECLI: NL: HR: 2015: 2528, RvdW 2015/955

Ask? Get in touch with the author or one of the other lawyers in the transport law department in Amsterdam.

Joachim Staab
Lawyer & Advocaat in Amsterdam

Mr. Staab is admitted to the bar in Cologne and as an advocate in Amsterdam. He advises and leads litigation on, among others, transport law, distribution law and international sales law. He is a Dutch specialist lawyer (Grotius) for transport law.