Why the chosen court decides on the breach of liability and how you can use the German-Dutch interface
For German importers from the Rhine-Ruhr region, the route of goods almost always leads through Rotterdam or Antwerp. In the event of damage, the amount of compensation is often determined not only by the applicable law but also by the chosen court, because the same CMR regulation is interpreted with varying degrees of strictness in Germany and the Netherlands. Rogert & Ulbrich utilizes precisely this interface via its Dutch Desk.
Why the Dutch interface matters for German importers
Rotterdam is the largest seaport in Europe and the gateway for many German importers' containers. From there, they are transported by truck, rail, or inland waterway vessel to North Rhine-Westphalia. This means that importers from the Rhine-Ruhr region are particularly exposed to Dutch law and Dutch courts.
A clear allocation of jurisdiction is crucial: Rotterdam is located in the Netherlands and is subject to Dutch law, while Antwerp is located in Belgium and is subject to Belgian law. However, the internationally standardized CMR Convention applies to cross-border road transport in both cases. The decisive factors lie precisely in this interplay between international regulations and national law.
About our Dutch Desk We accompany these traffics; as Transport law attorney in Rotterdam and in Antwerp We are available at the relevant locations.
Are you importing via Rotterdam or Antwerp? Have it checked which law and which court apply to your shipments.
CMR: uniformly regulated, yet not the same everywhere
The CMR Convention This applies to cross-border road freight transport in most European countries and establishes generally uniform rules, for example regarding liability and maximum amounts. One might assume that a claim would therefore be assessed the same everywhere. However, this is not the case.
The reason lies in Article 29 of the CMR Convention. This provision determines whether the liability limit is waived in cases of gross negligence, thus making the carrier fully liable. However, the CMR Convention refers to the law of the court hearing the case to define what constitutes negligence equivalent to intent. Therefore, the outcome depends on which court hears the case. The intended uniformity of the CMR Convention ends precisely at this point.
Is this a case of transport damage with a connection to the Netherlands? Have it checked which standard applies for breach of liability.
The crucial difference: Liability breach in Germany and the Netherlands
The reference in Article 29 CMR to national law leads to noticeably different standards. In German courts, Section 435 of the German Commercial Code (HGB) applies, which requires recklessness and awareness of the probability of damage. In Dutch courts, Article 8:1108 of the Dutch Civil Code (Burgerlijk Wetboek) applies.
The Dutch Supreme Court (Hoge Raad) interprets this standard very strictly. According to this standard, willful negligence exists only if the carrier is aware of the risk, understands that its occurrence is significantly more likely than its absence, and nevertheless acts accordingly. This purely subjective standard is virtually impossible to prove in practice. Consequently, exceeding the liability limit is considerably more difficult in the Netherlands than in Germany. This is a significant difference for the aggrieved importer seeking full compensation for their losses. We explain the German standard in more detail in our article on gross negligence under Article 29 of the CMR.
For the German side of this topic, please see our service page on qualified fault according to Article 29 CMR Further information.
Does your limited liability not cover your damages? Have it checked to see where exceeding the limit offers better prospects.
Choice of jurisdiction under Article 31 CMR – why the Forum decides on liability
When the court decides on the applicable standard, the choice of court becomes strategically important. Article 31 of the CMR Convention regularly grants the plaintiff several options: the court agreed upon in the contract, the defendant's place of business, and the place of acceptance and delivery of the goods. In cross-border transport, this almost always results in a choice of at least two courts.
For a German importer whose goods are delivered in Germany, this can mean the possibility of bringing a lawsuit in Germany and benefiting from the more favorable German standard of law. A particularly important point, often overlooked, is that the standard of law under Article 29 CMR is determined by the law of the court seised, not by a choice of law stipulated in the contract. Even if Dutch law is agreed upon in the contract, a German court will apply German law to this issue. Therefore, knowing the applicable jurisdictions can significantly improve one's position.
This choice must be made carefully, as it affects not only the standard of liability but also procedures, language, and costs. A general recommendation is not possible; each case must be considered individually.
Do you have a choice between several courts? Have it checked early on which forum improves your chances.
Dutch freight law and its enforcement in practice
Beyond the CMR Convention, Dutch freight law plays a role, which is regulated in Book Eight of the Burgerlijk Wetboek (Dutch Civil Code) and applies, for example, to purely domestic Dutch routes or supplementary matters. Bills of lading and conditions of carriage often also contain clauses regarding jurisdiction and choice of law in favor of the Netherlands, the validity of which must be examined on a case-by-case basis.
Dutch procedural law provides effective instruments for enforcing claims, such as preliminary legal protection and securing receivables. Familiarity with these tools and local practice allows for faster and more effective enforcement of claims. This is precisely the advantage of a law firm that is proficient in both legal systems and both languages.
We provide advice on cross-border situations within the framework of advice on international transport law.
Do you need to enforce or defend a claim in the Netherlands? Have your options in the Netherlands reviewed.
Dutch Desk: Your advantage at the German-Dutch interface
The German-Dutch interface is hardly served systematically by any German law firm. This is precisely where our Dutch Desk comes in. The following steps will help importers secure their position:
- Assign to legal system: Clarify whether Dutch, Belgian or German law applies and whether the CMR is relevant.
- Check jurisdiction: Determine early on the courts that can be chosen under Article 31 CMR and their implications.
- Consider the scale: Please note that the standard for breach of liability depends on the forum.
- Check the clauses: Have the jurisdiction and choice-of-law clauses in your contracts and bills of lading evaluated.
- Meet deadlines: Keep an eye on the legal deadlines under transport law, which can be one or three years depending on the degree of fault.
Clarifying these points early on gives you a clear advantage at the interface. We support you on both sides of the border with allocation, forum selection, and enforcement. The sooner the course is set, the stronger your position.
Do you want to use the German-Dutch interface to your advantage? Have your shipments and contracts checked.
Rogert & Ulbrich – Your Dutch Desk for Transport and Forwarding Law
Rogert & Ulbrich advises German importers, freight forwarders, and insurers at the German-Dutch interface. The lawyers Dr. Marco Rogert and Tobias Ulbrich and their multilingual team are experts in the CMR, Dutch freight law and the practice of the courts in Rotterdam and the surrounding area.
We determine the applicable legal system, examine the jurisdictions according to Article 31 CMR, assess choice-of-law and jurisdiction clauses, and enforce your claims on the more favorable side of the border. Our overview provides further information. Dutch Desk as well as the area transport and forwarding law.
Whether it's a claim via Rotterdam, a disputed jurisdiction clause, or enforcement in the Netherlands: Arrange a initial consultation and secure your position.
