Précis: The Federal Court found that a loss of cargo on the road leg of the carriage was subject to the limitation of liability applicable to road carriage under German law.
Facts: In this case the Court was asked to decide a question of German law to determine the defendant carrier’s quantum for loss of the plaintiffs’ cargo. The defendant issued a sea waybill for the transport of cargo in four containers from Montreal to the Netherlands via the Port of Antwerp. The cargo would be transported from Antwerp to the Netherlands by a truck. The cargo arrived at Antwerp but three of the containers were released to an unauthorized truck driver who provided the proper PIN numbers for the containers. The weight of the cargo that was stolen was 66,266kg. At issue was whether the provisions of the sea waybill which incorporated the Hague Visby Rules applied to the loss, or whether the Contract for the International Carriage of Goods by Road (“CMR”) applied. Both regimes use Special Drawing Rights to quantify liability, with 2 SDR per Kg under Hague Visby and 8.33 SDR per Kg under the CMR. The applicable limitation regime governing the loss depended on whether the loss occurred during ocean carriage or road carriage.
Decision: Loss occurred on road leg; limitation of liability is 8.33 SDR.
Held: The Court was to decide the state of the applicable German law as a matter of fact based on the expert reports of German lawyers filed by the parties and German case law supporting those expert opinions. Based on the German case law which considers whether the risk that materialized and caused the loss is inherent in or associated with a particular leg, the Court found that the releasing of the cargo by the Port to the truck upon production of the correct PIN was an activity attributable to road transport.