Gerechtshof ’s-Hertogenbosch, uitspraak van 22/05/2007 C0501239/HE Fortis Corporate Insurance N.V. / Uni-Data Logistics B.V., Ups Scs (Nederland) B.V.
Decision by national courts in the field of European Union law — ECLI:NL:GHSHE:2007:BA6991
Date: 2007-05-22
Subject matter: Judicial cooperation in civil matters
Origin: Netherlands

82007NL0522(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
A, seated in the Netherlands, hired the transport company X, seated in the Netherlands, to forward a container with computers from Rosmalen (NL) to Ditzingen (DE). X subcontracted the forwarding company Y, seated in the Netherlands. During transport, a portion of the cargo was stolen. The damages were discovered by the insurance firm B, seated in Belgium. B filed for damages against X and Y before the Landgericht of Stuttgart (DE). On 20.09.2004, the Landgericht ruled in favour of the complaint up to the limits imposed by Article 23(3) CMR. B had the actual damages assessed by expert testimony, and filed a new action against X and Y on 19.01.2005 before the Landgericht of Stuttgart (DE) for reimbursement of the damages in full. X and Y, in the meanwhile, filed suit before the Rechtbank 's-Hertogenbosch (NL) on 5.11.2004 seeking declaratory relief that they bore no liability beyond the limits imposed by Article 23 CMR. B requested the proceedings be stayed pursuant to Article 27 Brussels I Regulation, as according to the Bundesgerichtshof, the pending action for recovery took priority. The Rechtbank dismissed the request and on 13.07.2005, ruled in favour of the request for declaratory relief. B appealed to the Gerechtshof of 's-Hertogenbosch (NL).
The Hof of 's-Hertogenbosch (NL) finds that B's action in Germany became pending later in time than the action brought by X and Y in the Netherlands. The court, reviewing whether an action seeking recovery of damages and an action for negative declaratory relief against liability for those damages have the same object within the meaning of Article 27(1) Brussels I Regulation finds that they do based on the ECJ decision in the matter of the Ship "Tatry" (6.12.1994, C-406/92). This must, irrespective of German jurisprudence, cross-apply to the parallel norm in Article 31(2) CMR. The Hof affirms the decision of the court of first instance and denies the appeal.