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Limitation and the CMR Convention: acting fast is important!

Claims can be limited in time. This means that after a certain period of time, your claim can no longer be enforced in court. How long is this period if there is a dispute concerning international road transport? The CMR Convention answers that question. At least, so it seems. Because after a first reading of the somewhat complexly worded Article 32 CMR, more questions may surface than answers. Depending on the circumstances, the limitation period is one year or three years. The starting point of the limitation period can be the day of delivery of the goods, but also thirty days after the expiration of the stipulated period or sixty days after the carrier takes delivery of the goods. In other cases, the limitation period starts again after the expiration of three months from the conclusion of the contract of carriage, not to mention the situation of suspension of the limitation period.


This blog will clarify exactly what the statute of limitations is. One thing is certain: the statutes of limitations in road transport are relatively short, so acting fast is very important.


Two limitation periods

The first distinction made by Article 32 CMR is that between the one-year and three-year limitation periods. "Normal" legal claims are limited to one year. However, if there is intent or fault, the three-year limitation period applies.


Whether intent or fault exists must be determined by national regulations. This ensures that it is also important to consider which country or countries have jurisdiction, as there are major differences within Europe in this regard. In the Netherlands, article 8:1108 of the Dutch Civil Code helps us in this regard. Indeed, this article stipulates in paragraph 1 that the damage must have been inflicted intentionally or recklessly and with the knowledge that the damage would probably occur. It appears from the case law of the Supreme Court that fault exists when the person knew of the danger connected with the conduct and was aware that the chance that the danger would materialize was considerably greater than the chance that it would not, but did not allow himself to be deterred from such conduct. This is a strict criterion that is not often accepted by the courts. For example, a truck driver who left his cigarette-laden truck unlocked in a parking lot to spend the night at home did not violate this prohibition, even though he knew that the products in question were prone to theft and was acting in his own interest.


The statute of limitations can thus be significantly extended by the presence of these circumstances. In a recent ruling handed down by the North Holland District Court, this distinction even proved to have a fatal consequence for the plaintiff's claim. In this case, an insurer's transport claim could only be awarded if the long limitation period applied. Thus, the insurer had to prove intent/fault on the part of the defendant. The court held that this could not be established, and therefore the short statute of limitations applied (which had already expired before service of the summons). This case again highlights the importance of acting in a timely manner if you have a transportation law claim.


Start of the limitation period

Second, what matters is when the statute of limitations begins. There are three different possible points of commencement.


Point of commencement 1

In case of partial loss, damage or delay of the goods, the moment of delivery counts (Article 32 paragraph 1 sub a CMR). For example, if the cargo in question was delivered on April 30, 2021, the limitation period also commences on April 30, 2021. However, this first day is not counted, so the legal claim expires on May 1, 2022. It should also be noted that damage is also understood to mean total loss, even if the asset no longer has any residual value.


Point of commencement 2a

In case of total loss, for example in case of fire or missing goods, the statute of limitations begins to run from the thirtieth day after the end of the stipulated period (Article 32 paragraph 1 sub b CMR). This means the period for delivery at destination. For example, if it was agreed that the cargo would be delivered on February 20, 2022, then the limitation period commences from the thirtieth day after February 20, 2022, i.e. on March 23, 2022. The statute of limitations ends (in the case of a one-year limitation period) on March 23, 2023.


Point of commencement 2b

In the absence of a stipulated time limit, from the sixtieth day after the carrier takes delivery of the goods. So here no delivery time has been agreed upon, so the moment the carrier has taken delivery of the goods for delivery to the consignee is decisive. The CMR consignment bill contains this date, and therefore will usually be used here for confirmation (article 6 paragraph 1 sub d CMR). But also the loading order contains the moment of acceptance. The limitation period then commences sixty days after that moment.


Point of commencement 3

In all other cases, the statute of limitations commences on the expiration of a period of three months from the conclusion of the contract of carriage (Article 32(1)(c) CMR). This is a residual category. Consider a claim for payment of freight charges or failure to return empty pallets.


Suspension/interruption

Finally, suspension or interruption can affect the statute of limitations. Article 32 paragraph 2 CMR stipulates that a written claim suspends the limitation period until the day on which the carrier rejects the claim in writing and returns the accompanying documents. A written claim may include, for example, a liability claim. If you hold your counterparty liable on September 1, 2021, the statute of limitations is suspended as of that date. If your counterparty rejects that liability by letter on September 7, 2021, the suspension ends. That means 7 days are added to the statute of limitations. So suppose the one-year statute of limitations commenced from September 20, 2020, then the statute of limitations expires on September 27, 2021.


The statute of limitations can also be interrupted (Article 32 paragraph 3 CMR). In the Netherlands, the main rule of Article 3:319 of the Dutch Civil Code applies. Interruption means that the limitation period is extended by the same period. So if the (one-year) limitation period starts on January 2, 2022 and is interrupted on December 28, 2022, the period runs an additional year until December 28, 2023. An act of interruption can be done through a notice of interruption to the other party.


Conclusion

So, transportation law statutes of limitations can be confusing, but this blog has clarified exactly what the situation is and can serve as a guide when considering (the starting point of) the statute of limitations in a specific case. In any case, acting fast is very important. Acting slowly can cost you dearly. Take the following case.


Carrier A is bound to deliver goods to consignee B on August 2, 2022. However, the goods are stolen in transit, and therefore never arrive at B. A did not act recklessly and there is no intent or fault on his part. In principle, if B wants to bring a claim against A, until when has he got time?


Answer: there is no intent/ fault on A's part, so the statute of limitations is 1 year. This period commences from the 30th day after August 2, 2022 (because the goods were completely lost), so September 2, 2022. That means the statute of limitations ends on September 2, 2023. Of course, the statute of limitations can still be interrupted and suspended in the interim.


Want to know more?

Do you have questions about limitation periods or, for example, carrier liability in transport law? Feel free to contact one of our lawyers.


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