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Containers stolen from terminal - Hague Visby Rules or CMR?

Hague Visby rules or CMR, which one is applicable when unauthorized truckers whisk away containers from the terminal by using stolen pick up numbers (PINs)? Distinction is important as different limitation amounts are applicable under both regimes. In the case of The OOCL Montreal [2019] where the actual loss suffered was $1.5m, limitation amounts were $209k under HVR and $872k under CMR.

Containers has been loaded in Canada and discharged from the ship in Antwerp. They were waiting to commence their road leg to Holland. Somehow, unauthorized truckers got hold of the PINs required to secure their release from the terminal. Case was being heard in a Canadian court but applying German law.

So where does one leg end and the other begins? The determination whether the loss occurred on ocean or road leg of a multimodal transport turns on whether the activity giving rise to the loss was a characteristic of that particular leg. Failure of the security feature intended to ensure transfer of cargo to the correct road carrier was more closely associated with the road leg as per the court. Higher limitation amount under CMR was thus applicable.

Interestingly, had the loss occurred due to a failure of the terminal’s security system, then outcome would have been different.

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