EUPillar C-452/12 Nipponkoa Insurance Co. (Europe) Ltd v Inter-Zuid Transport BV (Third Chamber)

Summary

This case on the interpretation of Art 71 of Brussels I was referred to the CJEU in German proceedings between Nipponkoa Insurance (a Dutch company) and Inter-Zuid Transport concerning a payment of EUR 500 000 compensation for damage suffered in the course of international transport of goods by road. Canon contacted the Dutch companies of Nippon Nederland and Nippon Euro for the transportation of its products by road from its depots in Netherlands to its premises in Germany. In order to carry out this transportation, Nippon Euro had contracted Inter-Zuid Transport which then entrusted transportation to another transport sub-contractor, ie DTC. DTC contacted Kingma which was the transporter that ultimately carried out this transportation. The goods arrived in Germany but some of them were stolen before unloading. Canon brought an action in Germany for damages and interest from Nippon Nederland and Nippon Euro. Nipponkoa Insurance was the insurer of Nippon Nederland and Nippon Euro. It had paid Canon the sum and then brought an indemnity action in Germany against Inter-Zuid Transport to seek an order for that payment. However, before the initiation of the indemnity action, Inter-Zuid Transport had already obtained a negative declaratory judgment against Nippon Nederland and Nippon Euro in the Netherlands in respect of the same facts. According to this judgment, Inter-Zuid Transport was responsible for the damage suffered only up to the maximum amount in Art 23 of the CMR. The judgment became final during the indemnity action. But, Nipponkoa Insurance argued that the requirements for wilful misconduct or default under Art 29(2) of the CMR were fulfilled with respect to Inter-Zuid Transport and that, despite the existence of the declaratory judgment, the German court had jurisdiction under Art 31(1) of the CMR. Inter-Zuid Transport argued that, under Art 27 of Brussels I and Art 31(2) of the CMR, the proceedings cannot be pursued before the German court because of the Dutch negative declaratory judgment and that, in any event, it may be held liable only up to the maximum amount in Art 23 of the CMR. The German court observed that the indemnity action before it and the negative declaratory judgment had the same cause of action and the same parties and thus found that it was incompatible with the principles of mutual trust in the administration of justice and of minimising the number of concurrent proceedings to refuse to recognise the declaratory judgment. It referred some questions to the CJEU on the interpretation of Art 71 of Brussels I. Nipponkoa Insurance and the German Government raised a preliminary point that the referred questions essentially concerned Art 31 of the CMR of which the CJEU did not have jurisdiction to interpret. Citing para 63 of C-533/08 the CJEU acknowledged it had no jurisdiction to interpret Art 31 CMR but the referred questions concerned the interpretation of Brussels I so it had jurisdiction. The CJEU stated that it had already answered the first question in its case law (see para 54 of C-533/08) and reaffirmed that Art 71 of Brussels I precludes the interpretation of the CMR in the EU in a way that leads to results which are less favourable for achieving the sound operation of the internal market than those resulting from the provisions of Brussels I and accordingly the principles of free movement of judgments and mutual trust in the administration of justice are observed. As regards the second question, the CJEU found that Art 71 of Brussels I precludes an interpretation of Art 31(2) of the CMR according to which an action for a negative judgment in a MS does not have the same cause of action as an action for indemnity between the same parties in another MS. The CJEU’s interpretation encourages forum shopping by carriers in international road transport damages cases to swiftly seek for a negative declaratory judgment in ‘carrier friendly’ jurisdictions.