A wholesaler of digital items offered a consignment of LED TVs to a Danish purchaser for €134,231.23, for supply to Taastrup, Denmark.
The wholesaler had a cooperation settlement with an organization in the identical group (S1) which was domiciled within the Netherlands, and the wholesaler booked transport of the LED TVs to S1, which subcontracted the transport to a logistics providers supplier (LSP).
The LSP subcontracted the efficiency of the transport to a Dutch haulier, which undertook to move the consignment from the Netherlands to Denmark.
On 18 October 2018 the consignment was taken over for transport within the Netherlands. On the identical day, the haulier parked the trailer loaded with the LED TVs at a terminal in Deventer, the Netherlands. The terminal was fenced and monitored with cameras, however no alarm system had been put in. The world may very well be accessed by solely two ports and was inspected by a guard as soon as per evening. On the evening of Friday 18 October 2019, perpetrators accessed the terminal by reducing a gap within the fence and loaded a stolen truck with the trailer, which was later discovered empty in Eindhoven.
On 22 October 2019 S1 issued proceedings in Rotterdam towards the wholesaler, arguing that the latter ought to acknowledge that S1 was not accountable for the lack of the LED TVs.
On 28 October 2019 the haulier issued proceedings within the Netherlands towards S1, the LSP and the customer of the TVs. It argued that the defendants ought to acknowledge that it was not accountable for the theft. On 1 November 2019 the haulier prolonged the proceedings to additionally embrace the wholesaler as a defendant.
On 28 January 2020 the wholesaler initiated authorized proceedings towards the LSP in Denmark, arguing that the LSP ought to be discovered liable to pay limitless compensation for the lack of €134,231.23 or, alternatively, the limitation quantity.
The LSP argued that the proceedings ought to be dismissed as proceedings had been already pending within the Netherlands regarding legal responsibility for the loss because of the theft pursuant to the Conference on the Contract for the Worldwide Carriage of Items by Highway (CMR). Additional, it argued that the brand new Danish proceedings on loss couldn’t proceed below Article 30 of the EU Brussels I Regulation, which reads as follows:
1. The place associated actions are pending within the courts of various Member States, any court docket apart from the court docket first seised might keep its proceedings.
2. The place the motion within the court docket first seised is pending at first occasion, some other court docket might also, on the appliance of one of many events, decline jurisdiction if the court docket first seised has jurisdiction over the actions in query and its regulation permits the consolidation thereof.
The LSP argued that Article 20 of the EU Brussels I Regulation utilized regardless of whether or not the case involved a CMR transport because the CMR doesn’t cowl the problems determined by Article 30. Additional, the circumstances earlier than the Dutch court docket had been associated to the Danish case as all of them involved legal responsibility for the theft of the LED TVs. The LSP additional submitted that there was a threat of conflicting judgments if the proceedings had been heard individually by each the Dutch and the Danish courts.
In response, the wholesaler argued that the Danish proceedings ought to be heard of their substance on the premise that:
- the CMR takes priority over the EU Brussels I Regulation (Article 71 of the regulation);
- the Danish proceedings and the Dutch proceedings weren’t so carefully associated that there was a foundation for dismissing or suspending the Danish proceedings;
- the Danish court docket was ‘first seized’ with respect to the query of gross negligence;
- the problem as as to if the loss was as a result of gross negligence was not a problem within the Dutch proceedings; and
- the events (ie, the wholesaler and the LSP) had not submitted any claims towards one another within the Dutch proceedings.
On 5 March 2021 the Maritime and Industrial Courtroom held that the Danish proceedings couldn’t proceed and ought to be dismissed.(1) The court docket acknowledged as follows:
The court docket finds [therefore] that the CMR-Conference doesn’t hinder that the provisions of the Brussels I-Regulation on associated claims applies, cf. Artwork. 30 to the dispute on this matter. It stems from Artwork 30(1) that if associated actions are pending within the courts of various Member States, any court docket apart from the court docket first seised might keep its proceedings. It additional follows from Artwork 30(2) that had been the motion within the court docket first seised is pending at first occasion, some other court docket might also, on the appliance of one of many events, decline jurisdiction…
It’s undisputed that the pending Dutch circumstances are introduced earlier than the case at hand and that the Dutch circumstances are pending within the first occasion. It’s additional undisputed that the Dutch court docket is competent to listen to the case between the Wholesaler and the LSP.
The Wholesaler and the LSP are each events to the Dutch proceedings on the court docket at in Zeeland-West-Brabant the place the Haulier, that was the performing service, has introduced declaratory proceedings towards inter alia the Wholesaler and the LSP and submitted that shall be ordered to acknowledge that the Haulier isn’t accountable for the lack of the LED-TV’s.
As each the current proceedings and the Dutch proceedings thus issues the problem of legal responsibility of the events involved pursuant to the CMR-Conference for the lack of the consignment of the LED-TV’s, the court docket finds that the claims introduced are so carefully associated that there’s a threat for conflicting judgments if the circumstances are heard individually. On this regards it’s not decisive that the current case additionally entails a query as as to if the loss was prompted as a result of gross negligence.
It follows from this choice that Article 30 of the EU Brussels I Regulation applies to disputes ruled by the CMR and that, due to this fact, damaging declaratory proceedings regarding legal responsibility for transport harm might suggest that subsequent authorized proceedings regarding this legal responsibility earlier than one other court docket competent below the CMR could also be excluded pursuant to Article 30 of the regulation if there’s a threat of a conflicting judgment, regardless of whether or not the events to the 2 units of proceedings have made claims towards one another in each units of proceedings.
This judgment aligns with the European Courtroom of Justice’s judgment in Nipponkoa Insurance coverage Co (Europe) Ltd v Inter-Zuid Transport BV (C452/12), which held that damaging declaratory proceedings introduced by a CMR service towards a cargo curiosity bar subsequent authorized proceedings concerning the cargo curiosity’s declare for fee towards the CMR service. It’s because damaging declaratory proceedings should be deemed to have the identical reason behind motion as an motion for indemnity between the identical events in one other EU member state.
The Maritime and Industrial Courtroom’s choice underlines the significance of being conscious of the relevance of authorized steps taken with respect to CMR issues in different jurisdictions.
For additional info on this subject please contact Jesper Windahl at WSCO Advokatpartnerselskab by phone (+45 3525 3800) or e-mail (email@example.com). The WSCO Advokatpartnerselskab web site will be accessed at www.wsco.dk.
(1) Maritime and Industrial Courtroom, BS-4026/2020-SHR.
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