The true colours of time bars under the CMR

A buyer contracted a carrier to carry a pallet tank of dye containing harmful chemicals. The agreement was made with a contracting carrier who left the carriage with a performing carrier. The carriage was by truck and a CMR consignment note was issued by the contracting carrier, nominating the performing carrier as such. When the goods arrived the receiver handed a pallet truck to the driver who used it for unloading the goods. The receiver drove a forklift truck up to the trailer to receive the goods. However, a pallet tank fell forward and the forks of that truck pierced the tank, so that the chemicals were spilt on the trailer and storage floor and ran down a drain.  

The receiver, seller and buyer of the goods incurred clean-up costs and claimed reimbursement of these costs from the contracting and performing carriers.

The question was in part whether the contracting carrier was responsible for the performing carrier’s tortious act pursuant to the Danish law rules on liability for employees or independent contractors. Or whether the CMR applied although the loss was not a result of damage to the goods carried, but of the leaking of the dye.

Another part question was whether the carriers were responsible of the unloading of the goods.

The performing carrier argued that the loss has occurred in connection with the performance of the carriage. It was therefore subject to the CMR and its 1-year time bar.

This applied although there was no contract directly between the receiver, seller and buyer and the performing carrier. The former therefore alleged that the ordinary rules of Danish tort law and its 3-year time bar applied.

Carriers considered under each their own set of rules

The court found first of all that the receiver, seller and buyer jointly had title to sue and did not have to pinpoint which one of them was the rightful claimant.

The court then assessed the two carriers separately. Regarding the contracting carrier, the court found that the claim was not connected to the carriage. The claim was not, therefore, subject to the CMR, but to the general rules of Danish tort law. The contracting carrier had contracted the performing carrier as an independent contractor as the latter was not subject to instructions on the unloading of the goods. Accordingly, the contracting was not liable for the performing carrier as an independent contractor.

As the damage had occurred during unloading the court found, on the other hand, that the claim against the performing carrier was sufficiently connected to the carriage that it was subject to the CMR. The claim against the performing carrier was therefore time barred.

IUNO’s opinion

The case is an example of the liberal attitude of the Danish courts to title to sue.

In addition, the case puts on display some the difficulties in drawing the line where the CMR applies, and it is not entirely clear why the first part of the claim did not do so in this instance. However, the decision regarding the performing carrier is important as it shows that the provisions in the CMR on time bars has wider application than only to claims for loss, damage or delay to the goods itself.

[Maritime and Commercial High Court decision of 22 December 2022 in case no. BS-4388/2021-SHR]