Road transport

On this page you will find an explanation of various important aspects of carriage of goods by road transport, guided by 21 questions. 

CMR
Cross-border road transport (art. 1 sub 1 CMR) and to national road transport through agreement (Supreme Court 5 January 2001, NJ 2001, 391 "Cigna/Overbeek"). 
 
Dutch Law
Road transport within The Netherlands (art. 8:1090 Dutch Civil Code (DCC)).
 
AVC 2002
AVC are, if applicable, part of the transport agreement. Possibly also in addition to CMR (art. 3 AVC). 

CMR
CMR does not provide a definition. Besides the actual, paper and sub carrier, there is a subsequent carrier (art. 34 and further CMR) and the stack carrier (art. 2 CMR).  
 
Dutch Law
The party, agreeing with another party (the consignor), to transport the cargo by road (art. 8:1090 DCC).
 
AVC 2002
The party, agreeing with another party (the consignor), to transport the cargo by road (art. 1 sub 1 AVC).  

CMR
CMR does not provide a definition. The consignor is the party with whom the carrier agrees to transport the cargo by road. 
 
Dutch Law
The party with whom the carrier agrees to transport the goods by road (art. 8:1090 DCC).
 
AVC 2002
The carrier’s contractual counter party. The mentioning of a consignor on the waybill does not automatically imply that that particular party is the transporter’s contractual counter party (art. 1 sub 2 AVC).

CMR
CMR does not provide a definition. The consignee is the party the cargo is contractually designated to be delivered to.

Dutch Law
DCC does not provide a definition. The consignee is the party the cargo is contractually designated to be delivered to.
 
AVC 2002
The consignee is the party the cargo is contractually designated to be delivered to (art. 1 sub 3 AVC).

CMR
Consignor and consignee are allowed to claim. Own damages not required, claim interest is required (please refer to The Hague Court 27 September 2005, S&S 2006, 139). 
 
Dutch Law
Consignor and, in the event of a waybill, also the consignee (art. 8:1126 DCC).  
 
AVC 2002
Consignor and consignee are entitled to claim (art. 16 AVC).  

CMR
From the moment of receipt of the cargo until the moment of delivery (art. 17 sub 1 CMR); please also refer to Supreme Court 17 February 2012, S&S 2012, 60 "Tele Tegelen / Stainalloy").    

Dutch Law
From the moment of receipt of the cargo until the moment of delivery (art. 8:1095 DCC); Supreme Court 17 February 2012, S&S 2012, 60 "Tele Tegelen / Stainalloy").   
AVC 2002
From the moment of receipt of the cargo until the moment of delivery (art. 9 and 10 AVC). 

CMR
The carrier is required to deliver the cargo in the state of receipt (art. 17 sub 1 CMR).
 
Dutch Law
The carrier is required to deliver the cargo in the state of receipt (art. 8:1095 DCC).   
 
AVC 2002
The carrier is required to deliver the cargo in the state of receipt (art. 9 sub 2 AVC).  

CMR
The carrier is obliged to transport without delay (art. 17 sub 1 jo. 19 CMR).
 
Dutch Law
The carrier is obliged to transport without delay (art. 9 sub 3 AVC).   
 
AVC 2002
The carrier is obliged to transport without delay (art. 8:1096 DCC; no compulsory law). 

CMR
Own fault beneficiary, faulty cargo, carrier force majeure (art. 17 sub 2 CMR). Criterion: in the event of loss of cargo during transportation, a carrier may only claim exemption from liability if he evidences that he has taken all necessary precautions to avoid loss; Supreme Court 17 April 1998, NJ 1998, 602 "Brada/Oegema" and Supreme Court 24 April 2009, NJ 2009, 204 "Vos/Philips". Exemption in the event of (art. 17 sub 4 CMR): open vehicles, missing (or faulty) packaging, handling, loading, stowage, unloading by cargo interested party, nature of the cargo, improper labelling, livestock. No exemption of liability in the event of use of a faulty vehicle (art. 17 sub 3 CMR).  
 
Dutch Law
A circumstance that could not be avoided by a cautious carrier, insofar the consequences were unavoidable (art. 8:1098 sub 1 DCC); the same criterion applies as under CMR (please refer to that section). Exemption in the event of: (art. 8:1099 DCC): open vehicles, missing or faulty packaging, (art. 8:1101 DCC) handling, loading, stowage, or unloading by cargo interested party, nature of the cargo, heat and cold in the event of cold storage logistics that was not agreed, insufficient addressing and/or labelling, livestock. No exemption of liability in the event of use of a faulty vehicle or equipment (art. 8:1098 sub 2 DCC).   
 
AVC 2002
In the event of force majeure (art. 1 sub 6 AVC jo. 10 sub 1 AVC); the same criterion applies as under CMR (please refer to that section). Exemption in the event of (art. 11 AVC): open vehicles, missing or faulty packaging, handling, loading, stowage, or unloading by cargo interested party, nature of the cargo, heat and cold in the event of cold storage logistics that was not agreed, insufficient addressing and/or labelling, livestock. No exemption of liability in the event of use of a faulty vehicle or equipment (art. 10 sub 3 AVC).

CMR
The cargo interested party shall prove that the loss/damages was incurred during the liability term. Carrier shall prove carrier force majeure (art. 18 sub 1 CMR). The special risks of art. 17 sub 4 CMR are presumptions of evidence; counter evidence by cargo interested party is possible (art. 18 sub 2 CMR). Cold storage transport: carrier shall prove the maintenance and use of cold (heat) storage equipment before he may refer to the nature of the cargo (art. 18 sub 4 jo 17 sub 4d CMR). 
 
Dutch Law
The cargo interested party shall prove that the loss/damages was incurred during the liability term. Carrier shall prove carrier force majeure (art. 8:1098 DCC jo 150 Civil Procedures Act). The special risks of art. 8:1099 DCC are presumptions of evidence; counter evidence by cargo interested party is possible (art. 8:1100 sub 1 DCC). Cold storage transport: carrier shall prove the maintenance and use of cold (heat) storage equipment before he may refer to the nature of the cargo (art. 8:1100 sub 3 jo 8:1099 under c DCC). Please refer to the special regulations for bulk goods in art. 8:1101 DCC.    
 
AVC 2002
The cargo interested party shall prove that the loss/damages was incurred during the liability term. Carrier shall prove carrier force majeure (art. 10 sub 1 AVC jo 150 Civil Procedures Act). The special risks of art. 11 AVC are presumptions of evidence; counter evidence by cargo interested party is possible (art. 12 AVC). Cold storage transport: carrier shall prove the maintenance and use of cold (heat) storage equipment before he may refer to the nature of the cargo (art. 12 sub 3 AVC).  

CMR
Waybill has evidentiary effect, counter evidence by the carrier is allowed (art. 9 CMR). In the event of a motivated reservation, no evidence regarding number of packages and appearance (art. 8 sub 2 jo 9 sub 2 CMR).  

Dutch Law
No evidence regarding appearance if the waybill does not make any notion in that respect. The waybill cannot serve as evidence of the appearance if the waybill does not mention the appearance. The waybill cannot serve as evidence against the carrier regarding the cargo, unless the carrier was able to verify the goods and packaging (art. 8:1124 DCC).     
 
AVC 2002
If the carrier has reasonable verification means, the waybill provides evidence – subject to counter evidence - of the acceptance of the cargo and its packaging in good condition, of the weight and of the number of goods (art. 6 sub 2 AVC).  

CMR
Sales value plus cargo, customs fees and other transportation costs. Tax damages, i.e. excises over cargo that is transported under suspension of excises, are not included in these ‘costs’ (art. 23 sub 1 and 23 sub 4 CMR) (Supreme Court 14 July 2006, NJ 2006, 599, "Philip Morris/De Graaf").
 
Dutch Law
Destination value (art. 8:1103 DCC).
 
AVC 2002
AVC does not provide any regulations on this subject.

CMR
In the event of damages/loss of cargo: 8.33 SDR per kg (art. 23 sub 3 CMR). In the event of damages as a consequence of delay: one time the freight (art. 23 sub 5 CMR). 
 
Dutch Law
In the event of damages/loss of cargo: € 3.40 per kg (art. 8:1105 DCC jo KB 17 March 1997, Stb. 131). In the event of damages as a consequence of delay: one time the freight (art. 8:1105 DCC jo KB 17 March 1997, Stb. 131). 
 
AVC 2002
In the event of damages/loss of cargo: € 3.40 per kg (art. 13 AVC). The carrier is obliged to perform within a reasonable time (art. 9 sub 3 AVC), when in breach the liability is limited to one time the cargo (art. 13 sub 3 AVC). In the event of exceeding a term that was agreed in writing, the liability is limited to two times the freight (art. 13 sub 3 AVC). 

CMR
Excluded (art. 23 sub 4 CMR), unless intent or recklessness can be proven (art. 29 CMR).
 
Dutch Law
Excluded (art. 8:1103 DCC), unless intent of recklessness can be proven (art. 8:1108 DCC).     
 
AVC 2002
Excluded (art. 13 sub 1 AVC), unless intent of recklessness can be proven (art. 14 AVC).

CMR
Intent or recklessness with the knowledge that the damages would probably be caused (Supreme Court 5 January 2001, NJ 2001, 391 and 392, recently reconfirmed in Supreme Court 10 August 2012, NJ 2012, 652; S&S 2012,120). Under CMR, exceeding the limit may occur as a consequence of the carrier’s behaviour as well as his subordinates and auxiliaries (art. 29 sub 2 CMR). 
 
Dutch Law
Intent or recklessness with the knowledge that the damages would probably be caused (art. 8:1108 DCC). Please also refer to the Supreme Court case law as mentioned under CMR. Exceeding the limit only possible due to the carrier’s own behaviour.  

AVC 2002
Intent or recklessness with the knowledge that the damages would probably be caused (art. 14 AVC). Please also refer to the Supreme Court case law as mentioned under CMR. Exceeding the limit only possible due to the carrier’s own behaviour. 

CMR
A higher limitation is allowed if the conditions of art. 24 or 26 CMR are met (higher value, special interest). 
 
Dutch Law
A higher limitation is allowed if the conditions of art. 8:1102 DCC are met (deviation trough a written agreement that was concluded especially for the intended transport), art. 8:1106 DCC (higher value) or art 8:1107 DCC (special interest). 
 
AVC 2002
AVC provide no regulations for this purpose. 

CMR
The carrier’s liability is limited to those events included in the CMR (art. 28 CMR).   
 
Dutch Law
‘The aggressor is given a taste of his own medicine’ (Art. 8:1081 jo 8:361 and further DCC).   
 
AVC 2002
The AVC only contain a so-called Himalaya clause (art. 26 sub 2 AVC). 

CMR
In the event of visible damages and invisible damages/loss, the damages shall be reported in writing within 7 days of delivery (excluding Sundays and holidays) (art. 30 sub 1 CMR). In the event of delay the damages shall be reported within 21 days of delivery to the consignee (art. 30 sub 3 CMR). 
 
Dutch Law
The DCC does not contain any provisions in this respect.      
 
AVC 2002
In the event of visible damages and invisible damages/loss, the damages shall be reported in writing within 1 week (art. 15 sub 1 and 2 AVC). In the event of delay the damages shall be reported within 1 week of delivery to the consignee (art. 15 sub 3 AVC).

CMR
Without the timely and written notice of damage and/or loss, it is presumed that the carrier delivered the cargo in sound condition, i.e. without damage or loss thereto, unless evidence to the contrary is provided (art. 30 sub 1 CMR). In the event of delay, without a timely report of damages (in writing), no payment of damages is due.
 
Dutch Law
The DCC does not contain any provisions in this respect. 
 
AVC 2002
Save in the event of a timely report of damages/loss, the carrier is assumed to having delivered the cargo without delay in the state of the cargo as received (art. 15 sub 2 and 3 AVC).

CMR
For all claims: one year. In the event of intent or recklessness: 3 years. The timebar starts: in the event of (partial) loss, damages or delay: from the delivery date in the event of full loss, in the event of an agreed term from 30 days after the end of the term and in otherwise from 60 days after receipt by the consignee, and in all other cases (such as a cargo claim) from 3 months after entering into a transport agreement (art. 32 sub 1 CMR). Suspension and interruption of the timebar is governed by the laws of the country in which the case is pending (art. 32 sub 3 CMR). Interruption is not possible in combination or after suspension (please refer to Supreme Court, 20 December 2013, ECLI:NL:HR 2013:2043).
 
Dutch Law
Timebar of 1 year (art. 8:1711 DCC). This timebar may be interrupted (art. 3:317 sub 1 DCC) or prolonged (art. 8:1701 DCC). In the event of damages or loss, as well as in the event of payment of the cargo, the timebar starts on the day following the (due) delivery date (art. 8:1714 sub b and c DCC jo art. 8:1710 sub d DCC). There is an extra term of 3 months for recourse claims (art. 8:1720 DCC).    
 
AVC 2002
Timebarof 1 year (art. 28 sub 1 AVC). This timebar may be interrupted (art. 3:317 sub 1 DCC) or prolonged. There is an extra term of 3 months for recourse claims (art. 28 sub 2 AVC).  

CMR
The claimant may choose the court of one of the following: (art. 31 sub 1 CMR): defendant’s domicile, place of acceptance of the cargo, place of delivery of the cargo.
 
Dutch Law
The DCC does not contain any provisions. This needs to be determined through international regulations (such as the EEX Regulation and the EVEX Treaty (Lugano Treaty) or the Civil Procedures Act. 
 
AVC 2002
Only for transport agreements concerning domestic transport, the AVC (per 1 January 2013) contain an exclusive choice for the Rotterdam Court (art. 29 AVC).  

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