CARRIER’S LIABILITY UNDER CMR FOR THEFT BY A “FAKE CARRIER”: LESSONS FROM A RECENT DUTCH COURT DECISION
In January 2025, the Rotterdam District Court found a Polish transport company liable for the theft of 620 solar panels during international road transport (CMR). The Dutch freight forwarder had commissioned a Polish transport company to transport the cargo via the freight exchange platform Teleroute. The transport was transferred by the Polish transport company to a Czech transport company, which ultimately handed over the cargo to a “fake carrier” – a fraudulent party posing as a legitimate subcontractor. A Dutch freight forwarder brought legal proceedings against a Polish carrier for stolen goods.
The Polish carrier argued in court that it was not acting as a carrier, but only as a freight forwarder, and therefore should not be liable under the CMR regime. However, the court rejected this defence and concluded that the Polish carrier had in fact concluded the contract as a carrier, which made it subject to the strict liability rules of Article 17 of the CMR. The Polish carrier was found liable for the choice of the fake carrier and its claim for force majeure was dismissed.
A key conclusion for freight forwarders: in the Netherlands, if a party acted as a freight forwarder and did not involve the “fake carrier” itself, the freight forwarder is not liable for the theft of the goods. The situation is different if you qualify as a carrier. Theft of goods by a fake carrier is an intentional act on the part of the carrier who has subcontracted the transport. Based on Article 3 of the CMR, this intention is attributed to all carriers throughout the transport chain as if it were their own intention. This makes them all liable for the loss of the goods. Therefore, if you want to enter into a contract as a freight forwarder, this must be stated absolutely clearly so as not to risk liability for the carrier when the transport task is inadvertently outsourced to a fraudulent party further down the chain.
Ms. Susanna Limhuis,
Legal Advisor, Netherlands Association of Forwarding and Logistics (FENEX)