Background

For 15 years, a tobacco manufacturer (A) contracted with a Danish freight forwarder (B) to transport tobacco products to Sweden. It was agreed that the tobacco products would be transported only by box trailer. The tobacco products were not consolidated with other goods and the transports were made directly to the consignees in Sweden. The freight costs amounted to between Dkr15,000 and Dkr16,000 per trailer. No tobacco product thefts occurred during the 15 years.

Facts

In January 2013 A conducted a tender process for the transportation of its products to Sweden and Norway. The tender documents stipulated that transports to Norway were to be made only by box trailer. However, it was not a requirement that transports to Sweden be made only by box trailer. B submitted an offer based on the use of tarpaulin trailers.

The use of tarpaulin trailers and the consolidation of other cargoes with the tobacco products resulted in a lower freight per trailer, which was appealing to A. The safety of tarpaulin trailers was discussed during the tender process.

In August 2014 A's tobacco was stolen from B's tarpaulin trailer, which had been cut while parked during carriage in Sweden, but only a limited amount of tobacco was stolen. However, in September 2014 another tarpaulin trailer was cut and more than Dkr1 million of tobacco was stolen.

B terminated its contract with A as it did not want to continue transporting the tobacco products by tarpaulin trailer. A brought legal proceedings against B and claimed compensation for the losses resulting from the theft of the tobacco. B denied liability under the Convention on the Contract for the International Carriage of Goods by Road, holding that:

  • the theft had been committed by cutting the tarpaulin, which could have occurred only because a tarpaulin trailer (and not a box trailer) had been used to transport the tobacco products; and
  • A had elected not to use box trailers in order to cut freight costs.

Decision

On June 13 2016 the Danish Maritime and Commercial Court found B liable for the theft under the Convention on the Contract for the International Carriage of Goods by Road. The court did not find that B had warned against the use of tarpaulin trailers, stating that:

"B decided in 2013 to submit an offer for the carriage of tobacco to Sweden by use of tarpaulin trailers… and the offer was made without any reservations. It has not been proven by B that it, prior to the theft in September 2014, had warned A against the use of tarpaulin trailers for tobacco transports and even if such warning had been given it cannot result in that B is exonerated from liability under the CMR as B could have refused to perform the transports of tobacco if B considered the use of tarpaulin trailers as irresponsible."

Comment

The judgment considers the important question of what influence customer requirements and demands will have on how transport is to be performed – including a customer's requirement for cheap transport – when considering damages liability. The judgment attached no importance to the fact that A had decided that the goods did not need to be transported by box trailer when deciding the question of liability. However, if it had been proven that B had warned against the use of tarpaulin trailers and that A had stated irrespectively that such means of transport should be used, it cannot be ruled out that this would have been of relevance to the question of liability. Thus, carriers should be able to avoid liability for damage resulting from customer demands for particular means or methods of transport if they have warned against the use of such means or methods.

For further information on this topic please contact Jesper Windahl at Windahl Sandroos & Co by telephone (+45 3525 3804) or email (jw@wsco.dk). The Windahl Sandroos & Co website can be accessed at www.wsco.dk.

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