Parties to a contact have the freedom to decide the applicable law as stipulated by Article 3.1 of the Rome I regulation. Assuming that the English courts have exclusive jurisdiction, COGSA would apply, which is silent on this matter. Hence, RHA- conditions which give English courts competence (RHA. Article 16) state that the time limit of suit shall be 1 year from the time transit commenced and it must be in writing. Parties are deemed to have accepted goods and their proper condition if they don’t contest their quality within 7 days of delivery (art. III.6 HVR, art. 30.1 CMR, art. 23 CMNI). If goods were checked, counter evidence only admissible in case of non-apparent damage as per article as per CMR 30(2). Further the claimant loses the right of action where no notice is conveyed within 21 days from delivery as per 30(3) of the CMR. Contract of carriage by road is governed by CMR, so assuming that transport takes place from Rotterdam to Berlin by Road, Chocolate sprinkles cannot commence an action since the period of limitation for an action arising out of carriage is 1 year as per article 32 of CMR. In the case of wilful misconduct, the period of action by claimant is prolonged to 3 years from the date of delivery (Article 32.1 of CMR). However, judging by the facts of the case wilful misconduct has not occurred by English standards who has jurisdiction according to the exclusive jurisdiction clause stipulated in the contract.
In normal circumstances Article 31(1.a) of the CMR states that, the national law applicable would be, if legal proceedings were to arise, within the territory where the defendant is resident, has its principle place of business. Branch or agency through which the contract of carriage was made or where the place designated for delivery is situated. Hence, there are several options available to bring proceedings. However, in the current case, B-trans cannot go to English Courts since as per CMR article 31(a) where an action is pending before a court (Netherlands) a new action may not start on the same grounds unless the judgement of the court before which the first action was brought is not enforceable in the country in which the fresh proceedings are brought i.e. UK. Brussels I stipulates the Lis Pendens rule as per article 27 of the Regulation reiterating that any court other than the first court seised shall have to establish its judgement.
The Hague-Visby Rules (HVR) article III.6 also stipulate a time bar for action which is 1 year from the time of delivery. However, the carrier is bound to show due diligence and make the ship seaworthy in case damage occurs to the goods (article III(1a).
who can claim compensation for the defective packaging since cannot do so as a result of Privity of contract which prohibits parties to a contract to cut through chains of contracts to which they have no concluded a contract with. As per article 17(4(b) the carrier can escape liability where the defective condition of the goods result from improper packaging of the goods unless the defect was known to the carrier when he took over the goods and hence the sender shall be liable for the damage done to the goods as per article 10 of CMR. However, article 8 of the CMR states that the carrier, upon taking over the goods shall check the conditions of the goods and their packaging, which is unclear from the facts of the case.
As per article 16(3) of the CMR, the the carrier may sell the goods, if the goods are perishable or their condition warrants such a course, or when the storage expenses would be out of proportion to the value of the goods.
As per article 30(1) of CMR and RHA-conditions 11(1.iv), the consignee has a time limit to notify the damage caused to the goods within of seven days of taking their delivery and examination upon delivery. Hence, end customer would be unable to claim loss of goods.
Carrier cannot sue end customer for the breach of no receiving later invoices, since there is no contract of carriage between these two. However, end customer does have an insurable interest. Seller will have to prove that the loss was due to the negligence of carrier's faulty packaging, if sued by end customer. Then the burden of proof would shift and to Carrier proving that they were not the negligent party in the case and they would be awarded damages for the loss caused.
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