Do’s & don’ts: right of retention in the transport of goods

Dutch law gives the carrier the right to refuse to deliver to third parties any goods or documents that he has in his possession in connection with a contract of carriage. This so-called right of retention of the carrier expires as soon as the carrier has been paid or sufficient (financial) security has been provided.

In transport practice, the right of retention is an appropriate means of pressure to get ‘butter on the fish’ and to prevent a lengthy and expensive procedure to collect a claim. In which case there is a risk that the debtor will go bankrupt during the procedure and the carrier/creditor can whistle for his money.

Exercising the right of retention is not without risks, of which a carrier must be aware before exercising the right of retention.

First of all, a carrier must realize that he does not become the owner of the goods after invoking the right of retention. These goods may not be sold, rented or given on loan. He must retain the goods.

The international CMR Convention does not provide for payment terms and/or a right of retention. If goods are transported from a foreign client and/or the cargo is located abroad, there is a significant risk that the applicable foreign law does not provide for a right of retention, so that liability for damages arises as soon as goods are retained without right and title and are not delivered. It is unwise to exercise the right of retention abroad without proper knowledge of the applicable foreign law.

A carrier who uses a trailer from the client must verify whether the client/debtor is also the owner of the trailer and not a leasing company. Case law has determined that no right of retention may be applied to the (lease) trailer, but it may be applied to the cargo**. In that case, the carrier will have to take custody of the goods in the trailer. Caution is therefore advised when invoking the right of retention on trailers that may be owned by third parties.

The consequences of invoking the right of retention can be far-reaching for the client and other interested parties. On the grounds of reasonableness and fairness, a carrier may still be obliged to deliver goods, for example because it concerns a load of perishable goods that would otherwise become worthless or if the transport costs are particularly low in relation to the value of the load.

In such cases, the carrier may require security to be provided, for example in the form of a bank guarantee or by depositing the (disputed) amount with a notary.

In the event of a legal dispute, the claimant must take into account the short limitation periods in transport law, which generally require that proceedings be initiated within 1 year. Read more about the limitation period in transport law in the Legal Affairs section of July 2014.

For more information about the right of retention or other transport law topics, please contact Mr. Otto Lenselink (olenselink@transportrechtadvocaat.nl).

March 2015

*Article 8:1131 of the Dutch Civil Code,
** Arnhem District Court, 14 November 2011, location ECLI:NL:RBARN:2011:BV1040

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