Distinguishing Freight Forwarding from Carriage under the CMR: Overijssel District Court applies autonomous interpretation (ECLI:NL:RBOVE:2025:5313)

Why the distinction matters

The distinction between a contract of carriage and a forwarding contract is decisive, both substantively and procedurally.

• Substantive perspective:
  A carrier is, under Article 17 CMR, strictly liable for loss of or damage to the goods during carriage. A freight forwarder, by contrast, is only liable for its own mistakes - such as negligent instructions. The difference is therefore one of direct financial exposure: in carriage the risk lies squarely with the service provider, in forwarding the risk largely remains with the shipper.

• Procedural perspective:
  The qualification could also determine jurisdiction. If the CMR applies, the claimant may usually sue in its own country under Article 31 CMR. If the arrangement is one of forwarding, the CMR does not apply and jurisdiction falls back on the Brussels Ibis Regulation - often compelling proceedings abroad.

This explains why, in the case at hand, the Polish logistics provider immediately raised a jurisdictional challenge: if qualified as a forwarder, the Dutch court would lack jurisdiction. Please find a link to the judgment here: ECLI:NL:RBOVE:2025:5313, Rechtbank Overijssel, C/08/324078 / HA ZA 24-434.

The traditional Dutch approach

Where Dutch law applies (as the supplementary law), in Dutch case law the classification between carriage and forwarding is usually made by applying the Haviltex standard: a contract is interpreted on the basis of what parties could reasonably expect of each other, taking into account all relevant circumstances. Factors such as the wording of invoices, the commercial practice between parties, and whether the provider operates its own fleet are weighed to decide whether the provider acted as carrier or forwarder.

This contractual interpretation often decides not only liability but also the applicable procedural framework.

Brief outline of the case's facts

A Dutch trading company in foodstuffs engaged a Polish logistics provider for shipments from the Netherlands to Poland. The provider did not own trucks itself but arranged transport with subcontractors. The invoices consistently described the service as “forwarding service”.

In April 2023, a shipment worth approximately €143,000 went missing en route to Poland. The Dutch company and its insurer sued the logistics provider and its insurer before the District Court of Overijssel. The Polish provider contested jurisdiction, arguing it acted merely as forwarder, not as carrier.

The court's reasoning: autonomous interpretation of the CMR

The Dutch court took a noteworthy path. Instead of applying the Haviltex standard of contractual interpretation (which would normally be the Dutch method), the court relied on the autonomous interpretation of Article 1(1) CMR.

Because the CMR is an international convention, its scope must be interpreted uniformly and independently of national law. Even though Polish law was in principle the applicable substantive law, the court emphasised that the question of whether the contract is one “for the carriage of goods by road” is to be decided autonomously under the CMR itself.

In reaching its conclusion, the court assessed essentially the same factual indicators that would play a role under Haviltex:

• the service provider’s presentation as a forwarder (“organizing transport”),

• the absence of its own fleet,

• the consistent reference to “forwarding service” on invoices, and

• internal references by the shipper itself to a “forwarder”,

but did so within the framework of autonomous CMR interpretation, not by applying Dutch contract law or Polish law.

On that basis, the court held that the contract was one of forwarding, not carriage. The CMR therefore did not apply, and the Dutch court lacked jurisdiction.

Possible implications moving forward

This decision is significant as Dutch courts traditionally classify contracts via the Haviltex approach. Here, however, the court explicitly emphasised that the CMR requires an autonomous interpretative framework. This signals a potential shift in how Dutch courts may address similar disputes in the future.

In this case, our colleague Vincent Hofman acted on behalf of the Polish logistics service provider.