2021/08/31 – 23 Cdo 1628/2020 (summary)

Judgment of the Supreme Court of 31. August 2021, Case No 23 Cdo 1628/2020

(CMR, international carriage of goods by road, value of goods, current market price, compensation for damage)

The claimant sought damages from the defendant for the loss allegedly suffered because of damage to a work platform during international road transport. Both the court of first instance and the appellate court dismissed the action. They concluded that the damage suffered by the claimant had already been compensated by the defendant and the insurer in the amount which was in compliance with Articles 23 and 25 of the Convention on the Contract for the International Carriage of Goods by Road (hereinafter “CMR”). Therefore, they found the action unfounded. The appellate court agreed with the conclusion of the court of first instance and held that the starting point for fixing the value of the goods was the purchase price agreed in the contract of sale which represented the value of the goods in question. The appellate court found the other arguments of the claimant unfounded, namely that the purchase price was lower compared to the market value of the goods, reflecting the claimant's bargaining power, and that the seller granted the claimant a discount. Moreover, the claimant had only raised these objections in the appeal proceedings and, in view of Section 205a of Act No 99/1963 Coll., Code of Civil Procedure (hereinafter “CCP”), they could not have been taken into account by the appellate court. The claimant subsequently lodged an extraordinary appeal in which he requested the Supreme Court to annul these decisions and to refer the case back to the court of first instance for further proceedings. According to the claimant, Article 23 of the CMR was incorrectly applied since the damaged work platform was second-hand goods whose value could not be fixed from the invoice or the contract of sale but from the general value of such goods.

The Supreme Court was thus faced with the question of fixing the value of the goods damaged during the carriage under Article 23 and 25 of the CMR. In the present case, it was necessary to establish how the value of the goods was to be fixed for the purposes of calculating the amount of the damage suffered by the claimant. Article 23(2) of the CMR establishes three criteria for fixing the value of the goods which are applied hierarchically: the value of the goods shall be fixed (a) according to the commodity exchange price of the goods or, if there is no such exchange price, (b) according to the current market price or, if there is no commodity exchange price or current market price, (c) by reference to normal value of goods of the same kind and quality.

In this case, the goods were not traded on the commodity exchange and their value could not have been fixed according to the criterion under (a). Therefore, the value of the goods must have been determined in accordance with the criterion under (b) as the current market price of the goods if it exists at the place and time at which they were accepted for carriage. The Supreme Court thus went on to analyze whether the current market price could be determined in the present case. To that end, the Supreme Court examined the interpretation of the term “current market price” within the meaning of Article 23(2) of the CMR.

Having regard to the case law of the courts in other Contracting States to the CMR and the scholarly writings, the Supreme Court concluded that the “current market price” within the meaning of Article 23(2) of the CMR is the price resulting from the operation of standard market mechanisms; such a price can in principle be the purchase price agreed between the seller and the buyer. If the current market price of the goods cannot be determined in the above manner, the court shall calculate the compensation based on the normal value of the goods of the same kind and quality at the place and time at which they were accepted for carriage. In this case, a purchase price was agreed between the two parties. Thus, the agreed price may in principle be the current market price within the meaning of that provision. The agreed purchase price would not be appropriate for determining the current market price if, for example, the invoice data reflects an artificially inflated value resulting from insurance, if there are fluctuations in market prices between the invoice and the start of the shipment, or if the sender and the consignee have otherwise intentionally agreed on a price other than the market price, for example, in order to reduce customs duties and related import charges (decision of Austrian Supreme Court of Justice, 8 July 2024, 6 Ob 909/03i; decision of Bremen Regional Court, 28 April 2004,11-0-116/02).

In the present case, the claimant requested the courts to determine the value of the goods independently of the purchase price agreed upon in the contract of sale between the claimant and the seller. Thus, it was up to the claimant to argue and prove why the agreed purchase price did not correspond to the current market price. Nevertheless, the claimant did not fulfil this duty in time as he submitted his arguments only in the course of the appeal proceedings, which is contrary to the principle of incomplete appeal (Section 205a and 211a of the CCP). Therefore, if the appellate court did not take the claimant's arguments into account when deciding on the appeal and fixed the value of the goods based on the agreed purchase price, which it considered to have been negotiated in the local and temporal context of the acceptance of the goods by the carrier, its procedure cannot be faulted.

Based on the above-mentioned conclusion, the Supreme Court found that the extraordinary appeal was unfounded and therefore dismissed it.