The Netherlands – Damage as a result of the carrier’s failure to have the cargo veterinary inspected by NVWA (The Netherlands Food and Consumer Product Safety Authority). Breach of principal obligation within the meaning of Article 8:1095 DCC (the carrier is obliged to deliver goods received for carriage at destination and to do so in the condition in which he received them)

The facts

FN Global Meat B.V. (hereafter: “FN”), through Codirex Expeditie B.V., commissioned Thermotraffic Holland B.V. (hereafter: “Thermotraffic”), as forwarder, to handle the road transport of a cargo of frozen horse meat originating from Argentina (hereafter: “the cargo”) from Rotterdam to Dordrecht. The horse meat was destined for the European snack industry. Thermotraffic subcontracted this transport to DLG Overseas Logistics & Services B.V. (hereafter: “DLG”).

On 17 October 2022, a driver of DLG took delivery of the container with the cargo and delivered the container to FN the same day. DLG’s driver – contrary to the instruction in the transport order – did not have the cargo vetted by The Netherlands Food and Consumer Product Safety Authority (hereafter: “NVWA”) before delivery.

On 19 October 2022, the NVWA notified that it would take custody of the cargo. Inspection was no longer possible because the seal of the container had been broken and the cargo had been unloaded.

On 28 November 2022, the NVWA denied the cargo for import into the EU. The NVWA stated that the shipment had to be re-exported to a third country before 27  January 2023, after which the destination would automatically become destruction. The NVWA hereby stated as the legal basis:

“Consignment was not presented for inspection at the Border Control Post (GCP) in Rotterdam and unloaded without a Common Health Entry Document (GGB).”

What is the gist?

FN takes the position that it suffered damages as a result of DLG’s failure to have the cargo vetted by the NVWA, which meant that the cargo was not marketable in the EU and FN had to have the cargo destroyed. The damages amount to $64,780, consisting of the invoice value of the shipment plus ocean freight, and €5,918.45 in destruction costs. According to FN, DLG must compensate these damages. Primarily by virtue of Article 8:1095 DCC and alternatively by virtue of Article 6:74 DCC and/or Article 6:162 DCC.

The Court orders DLG to pay FN $64,780.00 in damages because DLG has failed to comply with the principal obligation under Article 8:1095 DCC. DLG’s reliance on exclusion and limitation clauses fails and its other defenses are insufficiently substantiated in the Court’s opinion.

The claimed destruction costs are rejected because they are to be considered consequential damages for which DLG is not liable.

In the below, I will set out the parties’ positions insofar as relevant to the assessment of the dispute and I will explain the Court’s decision.

The parties’ position and the Court’s decision

FN is entitled to claim

DLG argued that the Survey Report submitted by FN shows that expertise was carried out apparently on behalf of FN’s insurers. According to DLG, the assumption is therefore justified that the insurers in question have compensated FN for the alleged damage, have been subrogated to FN’s rights and FN is no longer entitled to a claim.

At the hearing, FN argued that it is not insured for these damages and the insurers (therefore) did not compensate the damages. DLG then questioned FN’s assertion and stated that it wanted further information because it could not verify the information given by FN at the occasion of the hearing.

Merely questioning FN’s contention without further substantiating why further checks and balances into FN’s statements would be necessary is not considered sufficient by the Court and is therefore rejected as insufficiently substantiated. The Court assumes that insurers have not compensated the damages alleged by FN and FN is entitled to claim (under both Book 6 and Book 8 of the Dutch Civil Code).

DLG is liable for FN’s damages – FN has not breached a duty to check

DLG argues that not having the cargo inspected would not have had to and should not have resulted in damages if FN had complied with its obligation to first verify that the veterinary inspection had taken place before having the seals broken and unloading the cargo.

The Court does not follow this defense, because – as FN also argued at the hearing – it has neither been stated nor shown that FN is under any contractual or legal obligation to carry out such a check. Moreover, FN had no reason to assume that the veterinary inspection had not been carried out since it is an undisputed fact that FN – which has this type of cargo transported very regularly – had not experienced before that a carrier had forgotten to have a shipment inspected and an inspection by the NVWA can also be carried out without breaking the seal.

The damage falls under Article 8:1095 BW

FN takes the position that DLG did not comply with the principal obligation of Article 8:1095 DCC because DLG received the cargo in a state in which it was marketable in the EU and delivered it in a state in which the meat was no longer marketable in the EU.
DLG argues that there was no damage to the goods during transport that falls within the scope of Article 8:1095 DCC, because for that it is relevant whether the physical condition of the goods was affected, which is not the case. Moreover, according to DLG, the cargo was also not / not yet marketable in the EU at the time of taking delivery, because the cargo had yet to be inspected at that time.

It follows from the case law of the Dutch Supreme Court that Article 17 CMR only regulates the carrier’s liability for loss of or damage to goods transported by him internationally, as well as for delay in delivery. Article 8:1095 DCC only deals with such damage for national transport.

It is an established fact that because (a driver of) DLG failed to have the shipment inspected, the shipment was refused entry into the EU by the NVWA on the basis of various applicable public law regulations. The obligation to have the shipment inspected actually meant that the driver had to make a minor adjustment to the carriage and an extra stop (for the inspection). Neither has it been stated nor shown that DLG received a substantially higher fee for this than the freight rate.

The cargo that was – and could have been – destined for the European market when it was received could no longer be imported into the EU after delivery due to DLG’s shortcoming. In this situation, the NVWA takes the original health certificate and only issues a copy with the stamp “refused entry EU” on it.

In the Court’s opinion, this refusal for entry into the EU qualifies as damage to the items transported by DLG. Accordingly, DLG (its driver) did not deliver the cargo in the same condition in which it received it for transport and is liable to FN for the damage it suffered as a result.

DLG must pay $64,780 in damages to FN – Reliance on exclusion and limitation clauses fails

According to Article 8:1102 paragraph 1 DCC, any clause which increases or reduces the liability imposed on the carrier by virtue of Article 8:1095 DCC is null and void, unless that clause was entered into expressly and other than by reference to clauses appearing in another document, by an agreement entered into specifically with regard to the intended carriage and laid down in a separate document.

DLG relies on exclusion and limitation clauses in its general terms and conditions of sale and the AVC 2002. Neither has it been established that these conditions were expressly entered into in the aforementioned sense. The clauses in these conditions therefore fall within the scope of Article 8:1102 DCC and are null and void.

The amount of the damage

The damages to be paid by DLG shall be calculated on the basis of the compensation system in Book 8 of the Dutch Civil Code Title 13, Section 2. The amount of the damages claimed by FN of $64,780.00, consisting of the invoice value of the shipment plus sea freight, has not been disputed by DLG in a substantiated manner and is therefore established. Since the amount of this sum falls within the limitation of damages in Article 8:1105 DCC (26,000 kg x €3.40 = €88,400), DLG’s reliance on this limitation is ineffective.

 Destruction costs are rejected

The destruction costs of €5,918.45 claimed by FN are the result of DLG’s failure to fulfill its obligations under the transport agreement and not “the costs that are directly related to (the normal performance of) the transport as such for the cargo interest” (see Dutch Supreme Court 14 July 2006, NJ 2006/599). Therefore, in the Court’s opinion, these costs – contrary to what FN has argued – should be considered consequential damages. DLG is not liable for consequential loss under Article 8:1103 DCC. Compensation for these costs will therefore be rejected.

It has not been established that FN did not act in a manner that would limit damage.

According to DLG, FN failed to meet its damage limitation obligations by not objecting to NVWA’s decision. FN disputes that an objection procedure would have had a reasonable chance of success.

Since DLG has not argued on what grounds an objection to NVWA’s decision would have been possible and has not otherwise substantiated this claim, this position is passed over as insufficiently substantiated.

DLG further argued that FN wrongly chose not to export the cargo after refusing the import, but instead allegedly proceeded to destroy the cargo. In response, FN referred to the Survey Report produced, explaining the three possible options for handling the cargo (after it was refused for import into the EU). It follows that options (1) return country of origin and (2) export to another third country were difficult / not feasible and the cost of these would quickly exceed the value of the cargo. The choice of option (3) destruction is consistent with the exposition in the Survey Report, and the Court therefore does not see why FN did not act in a damaging manner with this choice. Against the substantiation provided by FN, DLG did not (concretely) state why this should or could be thought different. This position is therefore also ignored.