What Is the Scope of Article 32 of the CMR Convention?

The Dutch courts have issued interesting decisions that shed further light on the issue
of time bar under the Convention on the Contract for the International Carriage of
Goods by Road (CMR). Under Article 32 of the convention, the limitation period is
one year for "actions arising out of carriage" under the convention. In several cases
the courts had to determine what an action arising out of CMR carriage actually
means: does such action involve only the carrier's liability (ie, a narrow interpretation)
or do all claims arising out of CMR carriage fall within the scope of Article 32?

Background
It is generally accepted that the limitation period for all claims arising out of transport
is one year. Therefore, a claim by the cargo owner against the carrier for loss of or
damage to goods, or a claim by the carrier against the shipper for freight or delays,
falls within the scope of Article 32. The one-year time bar also applies where the
carrier is faced with a claim based on tort, rather than on the CMR contract.

Several Dutch courts have confirmed that Article 32 applies to all actions involving
transport. Therefore, the claim must relate to CMR transport.

Dutch Court Decisions

A famous Supreme Court decision on Article 32 of the convention, AXA v De
Poorter, must be highlighted.(1) In this case the Supreme Court used a broad
interpretation of Article 32. The court held that the one-year time bar applied to a
claim by a carrier for damages to its truck following an incident whereby the truck
was damaged by the collapse of a loading platform. It appeared from the facts that the
truck with cargo was too heavy for the platform. The carrier argued that the party that
arranged for the loading of the truck was liable for the damages since it had
overloaded the truck. However, the carrier did not file a claim within the one-year
limitation period and the court confirmed that the claim was time barred.

However, the party that arranged for the loading of the truck was to be regarded as a
third party, as it was neither the shipper nor the carrier. The court nevertheless
accepted that there was a relevant connection with CMR transport and held that the
loading of the truck was "functional" - and even "essential" - to transport. Arguably,
the one-year time bar applies to claims based on tort by third parties against the
carrier.

Moreover, it has become common practice for carriers to initiate proceedings in the
Netherlands following theft during CMR transport. The carrier seeks a declaratory
judgment that the carrier is not liable, or in any case that liability is limited under the
convention. By doing so, the carrier seeks to prevent the cargo owner from filing a
claim in another jurisdiction, which may not be as favourable to carriers as the Dutch
courts. The carrier then relies on Article 31(2) of the convention (lis pendens). Several
decisions of Dutch courts confirm that the one-year limitation period applies to such
claims.
Comment
The one-year limitation period remains applicable. A carrier cannot rely on a claim of
wilful misconduct by the cargo owners, which would mean that the three-year
limitation period applied under Article 29 of the convention.

For further information on this topic please contact Jos van der Meché at AKD
Prinsen Van Wijmen by telephone (+31 10 272 53 00) or by fax (+31 10 272 54 00)
or by email (JvanderMeche@akd.nl).

Endnotes

(1) Dutch Supreme Court, February 11 2000.