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Transport

Dutch torpedo sinks Danish case

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Legal news
calendar 21 June 2022
globus Denmark

Do you keep in mind that it may be crucial where an international case is decided? The Eastern High Court of Appeal has just handed down a decision which is important for all those working with the CMR and claims. The court dismissed the case, which was connected to a case pending in the Netherlands, rather than staying it.

The case concerned a carriage of LED flat screens of great value for the Netherlands to Denmark. The flat screens were stolen shortly after departure while they were stored by the performing carrier.

The first contracting carrier and the performing carrier issued proceedings in the Netherlands against the seller of the flat screens (the “torpedo”). This was no doubt because it is very difficult to break the limit of liability in the CMR in the Netherlands. Further, the Brussels Regulation means that a party that moves first can prevent proceedings in other jurisdictions less friendly to carriers.

However, not all carriers were involved in the Dutch proceedings and so the cargo owners sued an intermediate carrier in the Danish courts as there were no proceedings in the Netherlands between these two parties. The cargo owner made a claim for the full loss because it is easier to break the CMR limit in Denmark.

The Brussels Regulation also entails, however, that when cases pending in different countries are closely connected then the case that was commenced last must be dismissed or stayed whilst the first case is being decided.

In this case the intermediate carrier applied for the Danish case to be dismissed as they – understandably – preferred being sued in the Netherlands and taking advantage of Dutch court practice. The Maritime and Commercial High Court and the Eastern High Court of Appeal decided to dismiss rather than to stay the case because the Dutch and Danish proceedings were so closely connected that the case ought to be decided only in the Netherlands. 

It is believed to be the first decision in Denmark that dismissed a related case rather than staying it.

The Dutch case commenced in a hurry by the other carriers therefore affected the cargo interests more broadly than against those two carriers and the torpedo had significant effect.

IUNO’s opinion

The case confirms once again that when cases concerning CMR carriages are linked to the Netherlands, the parties are well advised to investigate quickly where a suit is best commenced. This will depend on whether the party is a cargo interest or a carrier.

IUNO recommends: Where a case concerns the Netherlands, the cargo owner ought to investigate where else the carriers may be sued and vice versa – and strike first.

[The Eastern High Court of Appeal of 7 June 2022 in case BS-20462/2021-SHR]

The case concerned a carriage of LED flat screens of great value for the Netherlands to Denmark. The flat screens were stolen shortly after departure while they were stored by the performing carrier.

The first contracting carrier and the performing carrier issued proceedings in the Netherlands against the seller of the flat screens (the “torpedo”). This was no doubt because it is very difficult to break the limit of liability in the CMR in the Netherlands. Further, the Brussels Regulation means that a party that moves first can prevent proceedings in other jurisdictions less friendly to carriers.

However, not all carriers were involved in the Dutch proceedings and so the cargo owners sued an intermediate carrier in the Danish courts as there were no proceedings in the Netherlands between these two parties. The cargo owner made a claim for the full loss because it is easier to break the CMR limit in Denmark.

The Brussels Regulation also entails, however, that when cases pending in different countries are closely connected then the case that was commenced last must be dismissed or stayed whilst the first case is being decided.

In this case the intermediate carrier applied for the Danish case to be dismissed as they – understandably – preferred being sued in the Netherlands and taking advantage of Dutch court practice. The Maritime and Commercial High Court and the Eastern High Court of Appeal decided to dismiss rather than to stay the case because the Dutch and Danish proceedings were so closely connected that the case ought to be decided only in the Netherlands. 

It is believed to be the first decision in Denmark that dismissed a related case rather than staying it.

The Dutch case commenced in a hurry by the other carriers therefore affected the cargo interests more broadly than against those two carriers and the torpedo had significant effect.

IUNO’s opinion

The case confirms once again that when cases concerning CMR carriages are linked to the Netherlands, the parties are well advised to investigate quickly where a suit is best commenced. This will depend on whether the party is a cargo interest or a carrier.

IUNO recommends: Where a case concerns the Netherlands, the cargo owner ought to investigate where else the carriers may be sued and vice versa – and strike first.

[The Eastern High Court of Appeal of 7 June 2022 in case BS-20462/2021-SHR]

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Poulsen

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Krogh

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Rosenberg Overby

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The team

Aage

Krogh

Partner

Ida

Thune Ikkala

Legal advisor

Joachim

Sieverts Nielsen

Legal advisor

Lars

Rosenberg Overby

Partner

Mads

Poulsen

Partner