Facts

The Mol Comfort incident has given rise to a number of court cases. The facts of the first case decided were as follows: a Danish contracting carrier undertook to transport containers from Hong Kong to Aarhus (Denmark) by sea through a Danish importer. The Danish carrier subcontracted the transport to a Swiss carrier, which subcontracted to Hyundai Merchant Marine. The transport was further contracted to Mitsui OSK Lines and the containers were loaded on board the Mol Comfort in Hong Kong. After loading additional containers in Singapore, the Mol Comfort departed from Singapore to Jeddah on June 11 2013.

In January 2010 buckle deformaties had been detected by the vessel operator in the vessel's double-bottom structure; however, the impact of these deformaties on the vessel had not been determined and they had not been repaired. On May 29 2013 ship classification society ClassNk had finalised a special survey of the ship without commenting on the buckling deformaties. At the time of the voyage from Singapore, the ship – which was 302 metres long and 45.60 metres wide – had commenced a considerable vertical bending moment of 103% of the allowable design value, caused by the distribution of container loads and ballast water. However, based on a reading of the vessel's draught, the actual vertical bending moment was apparently 126% of the design value.

On June 17 2013 the vessel broke in two due to a fracture in the vicinity of Hull 6. The ship and its containers were lost. No outside factor could explain the loss as no collision, grounding, fire or explosion occurred. An investigation by Japan's Committee on Large Container Ship Safety was unable to determine the cause. In a subsequent report, ClassNK concluded that the loss could have occurred because the vessel had been exposed to forces in excess of the allowable design values. Subsequent to the loss, the vessel's owner and others constituted a global limitation fund in Tokyo under the 1996 protocol of the International Convention on Limitation of Liability for Maritime Claims 1976.

Following the loss of its cargo, the importer initiated legal proceedings against the Danish carrier before the Danish Maritime and Commercial Court and submitted a claim for compensation for damages under the Danish Merchant Shipping Act (incorporating the Hague-Visby Rules). The importer submitted that the Mol Comfort was not seaworthy when the voyage from Singapore commenced and that the Danish carrier had not proven that no party for which it was responsible had not committed any errors or omissions that had influence on the vessel being unseaworthy. The Danish carrier submitted that it was not liable as the loss was the result of a hidden defect in the ship that could not have been detected.

Decision

The court found that the Danish carrier was liable for the damages. It reasoned that although the investigations previously carried out had not established the reason for the loss of the Mol Comfort, they had indicated certain issues that may have had an influence, including the presence of buckling deformaties in the bottom of Cargo Hold 5 and the vessel's still water vertical bending moment at the time of the departure. The court found that the vessel should not have departed from Singapore with a still water vertical bending moment of 103%. Against this background, and as no evidence had been presented to support a different conclusion, the Danish carrier had failed to overcome the burden of proof which rested on it in order to avoid liability as the contracting carrier under Section 275(1) of the Merchant Shipping Act.

Comments

Numerous legal proceedings are pending in various jurisdictions regarding liability for the Mol Comfort incident. However, this is the first Danish decision on the issue. The Maritime and Commercial Court decision is in line with Danish case law as it imposes on the carrier the burden of proof that a casualty – even one which resulted in the loss of an entire vessel and its containers – was not caused wholly or partially by any errors or omissions by any party for which the carrier was responsible. The judgment does not decide on the effect in Denmark of the constitution of the limitation of liability fund.

For further information on this topic please contact Jesper Windahl at Windahl Sandroos & Co by telephone (+45 7733 7733) or email (jw@wsco.dk). The Windahl Sandroos & Co website can be accessed at www.wsco.dk

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