Consignment theft dispute ruling has implications for logistics industry
The theft of four consignments of Canon cameras during road transportation has led to a landmark decision by the European Court of Justice which could have wider implications for the logistics industry.
Rotterdam-based law firm AKD says the decision of the Court definitively puts its weight behind forum shopping (practice where complainants have their legal case heard in the court thought most likely to provide a favorable judgment) to limit liability under the CMR Convention (Convention on the Contract for the International Carriage of Goods by Road) in carrier-friendly countries. The firm states that this is a benefit to the Dutch jurisdiction and specifically comes at the expense of the courts in Germany.
This ruling could have a profound influence on the terms and conditions of the carriage of goods for shippers and shipping lines.
The ruling by the court was over a dispute between cargo interests and carriers involving the theft of four consignments of Canon cameras during road transportation under CMR terms from a warehouse at Schiphol Airport in the Netherlands to Willich, Germany, in 2007.
The goods were only partly discharged by the cargo interest's employees, the remainder being left in the trailer for discharge the next morning, when it was discovered that they had been stolen.
Carriers obtained a declaratory judgment from the Dutch courts, which was confirmed on appeal, that the carriers down the contractual chain were only liable up to the CMR limit, in this case Euros 50,000. There was then a judicial settlement between the cargo interests and the first contractual carrier for Euros 500,000. The first contractual carrier's insurers then sought to recover this amount in the German courts from the carriers further down the contractual chain, who in turn challenged the jurisdiction of the German courts, pointing to the declaratory relief issued by the Dutch courts.
The German courts referred the dispute to the Court of Justice of the European Union which, on December 19, 2013, ruled that the German courts cannot hide behind other international treaties so as to hinder the automatic recognition of judgments by courts in the EU. The Court of Justice ensured the minimum standard within the EU for jurisdiction, recognition and enforcement of judgments that maintain the possibility to limit one's liability under the CMR. In effect, said, AKD, this is a licence for forum shopping in CMR matters to the benefit of Dutch jurisdiction.
Jos van der Meché, partner at AKD, said: "Simply put, Germany is a country of cargo interests, while the Netherlands is primarily a country of carrier and logistics interests. The German courts are therefore likely to award damages in full against CMR carriers, while the Dutch Supreme Court sets a very high bar for the breaking of limitation of liability under CMR.
"The judgment of the Court of Justice is very decisively in favour of the Dutch interpretation of CMR and the EU Brussels 1 Regulation. It effectively endorses the use of pre-emptive strikes in the Dutch courts by CMR carriers. It also specifically rejects the position of the Federal Court of Justice of Germany, and means that it is now much easier for CMR carriers to limit their liability by starting proceedings before the carrier-friendly Dutch courts, without the risk of being sued by the cargo-friendly German courts for the same claim at a later date. It furthermore emphasises the importance of starting proceedings and obtaining a judgment under Dutch jurisdiction as soon as possible after the occurrence of theft of or damage to cargo carried under CMR conditions."
NTT DATA Services, Remodelling Supply Chains for Resilience
Joey Dean, the man with the coolest name ever and Managing Director in the healthcare consulting practice for NTT DATA and is focused on delivering workplace transformation and enabling the future workforce for healthcare providers. Dean also leads client innovation programs to enhance service delivery and business outcomes for clients.
The pandemic has shifted priorities and created opportunities to do things differently, and companies are now looking to build more resilient supply chains, none needed more urgently than those within the healthcare system. Dean shares with us how he feels they can get there.
A Multi-Vendor Sourcing Approach
“Healthcare systems cannot afford delays in the supply chain when there are lives at stake. Healthcare procurement teams are looking at multi-vendor sourcing strategies, stockpiling more inventory, and ways to use data and AI to have a predictive view into the future and drive greater efficiency.
“The priority should be to shore up procurement channels and re-evaluate inventory management norms, i.e. stockpiling for assurance. Health systems should take the opportunity to renegotiate with their current vendors and broaden the supplier channel. Through those efforts, work with suppliers that have greater geographic diversity and transparency around manufacturing data, process, and continuity plans,” says Dean.
But here ensues the never-ending battle of domestic vs global supply chains. As I see it, domestic sourcing limits the high-risk exposure related to offshore sourcing— Canada’s issue with importing the vaccine is a good example of that. So, of course, I had to ask, for lifesaving products, is building domestic capabilities an option that is being considered?
“Domestic supply chains are sparse or have a high dependence on overseas centres for parts and raw materials. There are measures being discussed from a legislative perspective to drive more domestic sourcing, and there will need to be a concerted effort by Western countries through a mix of investments and financial incentives,” Dean explains.
Wielding Big Tech for Better Outcomes
So, that’s a long way off. In the meantime, leveraging technology is another way to mitigate the risks that lie within global supply chains while decreasing costs and improving quality. Dean expands on the potential of blockchain and AI in the industry.
“Blockchain is particularly interesting in creating more transparency and visibility across all supply chain activities. Organisations can create a decentralised record of all transactions to track assets from production to delivery or use by end-user. This increased supply chain transparency provides more visibility to both buyers and suppliers to resolve disputes and build more trusting relationships. Another benefit is that the validation of data is more efficient to prioritise time on the delivery of goods and services to reduce cost and improve quality.
“Artificial Intelligence and Machine Learning (AI/ML) is another area where there’s incredible value in processing massive amounts of data to aggregate and normalise the data to produce proactive recommendations on actions to improve the speed and cost-efficiency of the supply chain.”
Evolving Procurement Models
From asking more of suppliers to beefing up stocks, Dean believes procurement models should be remodelled to favour resilience, mitigate risk and ensure the needs of the customer are kept in view.
“The bottom line is that healthcare systems are expecting more from their suppliers. While transactional approaches focused solely on price and transactions have been the norm, collaborative relationships, where the buyer and supplier establish mutual objectives and outcomes, drives a trusting and transparent relationship. Healthcare systems are also looking to multi-vendor strategies to mitigate risk, so it is imperative for suppliers to stand out and embrace evolving procurement models.
“Healthcare systems are looking at partners that can establish domestic centres for supplies to mitigate the risks of having ‘all of their eggs’ in overseas locations. Suppliers should look to perform a strategic evaluation review that includes a distribution network analysis and distribution footprint review to understand cost, service, flexibility, and risks. Included in that strategy should be a “voice of the customer” assessment to understand current pain points and needs of customers.”
“Healthcare supply chain leaders are re-evaluating the Just In Time (JIT) model with supplies delivered on a regular basis. The approach does not require an investment in infrastructure but leaves organisations open to risk of disruption. Having domestic centres and warehousing from suppliers gives healthcare systems the ability to have inventory on hand without having to invest in their own infrastructure. Also, in the spirit of transparency, having predictive views into inventory levels can help enable better decision making from both sides.”
But, again, I had to ask, what about the risks and associated costs that come with higher inventory levels, such as expired product if there isn’t fast enough turnover, tying up cash flow, warehousing and inventory management costs?
“In the current supply chain environment, it is advisable for buyers to carry an in-house inventory on a just-in-time basis, while suppliers take a just-in-case approach, preserving capacity for surges, retaining safety stock, and building rapid replenishment channels for restock. But the risk of expired product is very real. This could be curbed with better data intelligence and improved technology that could forecast surges and predictively automate future supply needs. In this way, ordering would be more data-driven and rationalised to align with anticipated surges. Further adoption of data and intelligence and will be crucial for modernised buying in the new normal.
These are tough tasks, so I asked Dean to speak to some of the challenges. Luckily, he’s a patient guy with a lot to say.
On managing stakeholders and ensuring alignment on priorities and objectives, Dean says, “In order for managing stakeholders to stay aligned on priorities, they’ll need more transparency and collaborative win-win business relationships in which both healthcare systems and medical device manufacturers are equally committed to each other’s success. On the healthcare side, they need to understand where parts and products are manufactured to perform more predictive data and analytics for forecasting and planning efforts. And the manufacturers should offer more data transparency which will result in better planning and forecasting to navigate the ebbs and flows and enable better decision-making by healthcare systems.
Due to the sensitive nature of the information being requested, the effort to increase visibility is typically met with a lot of reluctance and push back. Dean essentially puts the onus back on suppliers to get with the times. “Traditionally, the relationships between buyers and suppliers are transactional, based only on the transaction between the two parties: what is the supplier providing, at what cost, and for what length of time. The relationship begins and ends there. The tide is shifting, and buyers expect more from their suppliers, especially given what the pandemic exposed around the fragility of the supply chain. The suppliers that get ahead of this will not only reap the benefits of improved relationships, but they will be able to take action on insights derived from greater visibility to manage risks more effectively.”
He offers a final tip. “A first step in enabling a supply chain data exchange is to make sure partners and buyers are aware of the conditions throughout the supply chain based on real-time data to enable predictive views into delays and disruptions. With well understand data sets, both parties can respond more effectively and work together when disruptions occur.”
As for where supply chain is heading, Dean says, “Moving forward, we’ll continue to see a shift toward Robotic Process Automation (RPA), Artificial Intelligence (AI), and advanced analytics to optimise the supply chain. The pandemic, as it has done in many other industries, will accelerate the move to digital, with the benefits of improving efficiency, visibility, and error rate. AI can consume enormous amounts of data to drive real-time pattern detection and mitigate risk from global disruptive events.”