Part 1: Coronavirus and liability implications for the transport sector
From the outset, it was clear that one of the sectors that would suffer most as a result of the corona outbreak was the transport sector. The consequences are not soft. The closures of the borders of several European countries have now caused long queues and traffic jams. It cannot be ruled out that this delay may even be as long as a few days. Moreover, it appears that certain truck stops along the motorways are closed. Among other things, this makes it more difficult for drivers to rest and eat on time and on their route. Although at the moment the transport of goods is not banned by countries with a general lockdown such as Italy, Spain and France, it remains to be seen how long this will continue. In view of the roller coaster of developments, it cannot be excluded that a country decides to keep its borders closed for transport of goods as well. These circumstances can result in the carrier not being able to deliver the goods on time or even not being able to deliver them at all. In this blog, the first of two parts, we will look at the liability consequences of this.
Starting point is liability
In the case of international carriage, the starting point is that the carrier shall be liable in the event of delay in delivery occurring between the time he takes over the goods and the time of delivery. This standard is laid down in the CMR Convention, which applies by mandatory law in the case of international carriage by road. In addition, national law also has a liability regime in the form of Section 8:1095 of the Dutch Civil Code and beyond. In short, both national and international damage during transport – explicitly including delays in delivery – is in principle for the carrier’s account.
Exception: force majeure
However, the carrier has a possibility to evade the CMR’s liability regime. The same applies to the liability regime under national law. Such an escape is effected by invoking so-called force majeure provisions.
Pursuant to art. 17 of the CMR, the carrier can excuse itself from liability if the delay is caused by:
1) the fault of the person entitled,
2) by an order of the latter, which is not the result of fault on the part of the carrier,
(3) by an own defect of the goods or,
4) by circumstances which the carrier has been unable to avoid and the consequences of which he has been unable to prevent.
With regard to current developments, points 2 and 4 will be particularly relevant.
As far as the second point is concerned, it can be argued that possibilities of delays in transport to or through “locked-down countries” are also known or can be assumed to be known by the principal/right holder.
Moreover, under national law, with regard to the fourth point, on the basis of Article 8:1098 of the Dutch Civil Code, the carrier is not liable for delays caused by a circumstance which a diligent carrier could not have avoided, in so far as the carrier was unable to prevent the consequences thereof.
The attentive reader will have noticed at first sight that the two escape routes, although similar in their formulation, are not identical. Contrary to the national provision, the CMR does not refer to a ”diligent carrier”. Nevertheless, it can be deduced from the case law of the Dutch Court of Cassation that the criterion of a diligent carrier is also used in Dutch courts in the event of an appeal to force majeure under the CMR. The two standards are therefore in line with each other, despite a different wording in practice and case law. In short, an appeal to force majeure can be successful under both the CMR and national legislation if – in short – the situation was unavoidable for a diligent carrier.
However, the burden of proof for the latter lies with the carrier. Fulfilling this burden is not an easy task in practice. After all, the carrier will have to prove, on the one hand, that the unavoidable circumstance causing the damage occurred and, on the other hand, that the consequences could not have been prevented by a diligent carrier. The latter indicates that it will not so much be the question of what the carrier in question could do or not do. Instead, it will be looked at what could reasonably be expected of a diligent carrier. In our next blog we will discuss this in more detail.
Need advice?
Do you have questions about this subject or do you need advice? Feel free to contact one of our lawyers, such as Arsen Mukuchian, author of this blog, Lotte Oostdam or John Wolfs.
March 20, 2020