In the (inter)national carriage by road the main obligation of the carrier is to deliver the goods in the same condition as in which he took receipt of these goods. Based on the articles 17 and 23 of the CMR convention , the carrier is liable for compensation when the goods are damaged or lost during the transport, or when they are delivered with delay. Any contractual stipulations which derogate from the CMR convention are null and void and impossible to enforce. It is possible that, besides this main obligation, it is agreed between the carrier and the shipper that the carrier will provide all sorts of other services. For example, arranging customs formalities, or providing information such as in which container a certain shipment has been stuffed/loaded. Some of these subsidiary obligations are governed by the CMR convention. The loss of customs documentation, as a consequence of which the shipper is unable to clear customs resulting in payable custom duties,  is for instance regulated in article 11 CMR convention. For a long time it has been uncertain under Dutch law, what the consequences are when other damage then damage to the goods arises under a contract of carriage which is subject to the CMR convention, with respect to a subsidiary obligation which is not regulated by the CMR convention. Is in that case the carrier liable for that damage (subject to national law), or is the carrier, based on the CMR-convention liable for damage/loss of the goods only?

This question is of importance because carriers more and more act as logistical service providers who take on various subsidiary obligations. In recent case law of the Dutch High Court (Schenker/Transfennica, 18 December 2015, ECLI:NL:HR:2015:3624) has provided clarity with respect to this question.

Facts of the matter
A carrier (Transfennica) is provided with the instruction from a shipper (Schenker) to carry a number of shipments of Nokia products. The place of loading is in the Netherlands, the place of delivery is in Finland. The contract of carriage is subject to the CMR convention. On the CMR Waybills it is recorded which shipment it stuffed/loaded in which container. The carriage is performed and the containers are delivered in Finland. Upon request of the shipper, the carrier provides the information which shipment it stuffed/loaded in which container. This information provided by the carrier does however contain an error, three container numbers and shipment references are mixed up. Subsequently the shipper has the containers shipped by another carrier to Russia for which TIR-carnets are required. The information used in the application for the TIR-carnets is the information provided by the carrier and containing the error. At the Russian border the Russian customs notes that the weights of the shipments deviates from the weights in the TIR-carnets. As a consequence the shipments are detained, which results in costs (truck demurrage and storage costs) and fines. These costs and fines are claimed by the shipper from the carrier who provided the erroneous information.

Judgement of the Court of first instance
The court of first instance awards the claim of the shipper. The shipper claims that the carrier is liable for the costs and fines, because the carrier has acted in breach of his contractual obligation to provide correct information. The carrier raises the defense that under the CMR convention a carrier is only liable for damage or loss of the goods (and for delay in delivery) and not for the costs and fines claimed by the shipper. As the goods are not damaged, nor delivered with delay, the carrier is not liable. The court ascertain that this defense fails because the CMR convention does not provide an exhaustive regulation of the liability of the carrier. The carrier is liable to compensate the costs and fines.

Judgement of the Court of appeal
The carrier appealed and the Court of appeal agrees with the carrier. The Court of appeal considers that the contractual relation between the carrier and the shipper is ‘limited by the transportorder which is subject to the CMR’. The Court of appeal further ascertains that the goods are delivered timely and in good condition in Finland. The ‘fault’ of the carrier did not cause damage to the goods during the transport from the Netherlands to Finland, and therefore the carrier is not liable.

The consequence of the reasoning of the Court of appeal is that, as long as the goods are delivered timely and in good condition, it doesn’t matter if damage is caused by ‘subsidiary’ obligations of the carrier. That damage cannot be recovered from the carrier.

Ruling of the Dutch High Court
The Dutch High Court ruled that the Court of appeal erroneously judged that the contractual obligation to provide correct information cannot lead to liability, based on the argument that the contract of carriage is subject to the CMR. The CMR does not regulate this subject and does also not stand in the way of adopting liability. In the end the shipper is right.

What does this ruling teach us?
The CMR does not provide an exhaustive regulation of the liability of the carrier. Article 17 CMR convention does only concern the liability of the carrier for loss or damage of the goods (and delay in delivery). The carrier can be liable for other damage based on the applicable national law.

This ruling of the Dutch High Court is of great importance, because carriers in logistics contracts, besides the obligation to carry the goods, often also accept various other obligations. Before this ruling it was uncertain if a carrier could be liable for breach of these other obligations. This ruling confirms that a carrier can be liable.