A Danish wind turbine manufacturer entered into a service contract in 2011 with a Danish logistics services provider on the general terms and conditions pertaining to the transport of project cargo. The service contract set out that this comprised all services rendered by the logistics services provider under any scope of supply which it undertook to deliver to the turbine manufacturer concerning the "transport, storage, cargo handling and logistics services of any kind and nature". In August 2012 the turbine manufacturer requested a quotation from the logistics services provider for transport of 63 wind turbine blades which stated: "please quote firm offer for the following open cargo: Blades V100, Liner Hook Esbjerg to Free OUT Manfredonia Port in 2 shipments: – 30 blades, laycan week 39 – 33 blades, laycan week 42."
On this basis the logistics services provider quoted as follows:
"The shipping programme…
Stevedores/agents in Esbjerg (J)
The scope, freight rate and conditions
Towers: Liner in ports of loading to free out port in Manfredonia:
Blades: Liner in port of Esbjerg to free out port of Manfredonia:
Included in freight rates
- Hooking on charges in port of loading
- T3 tax in Marin
- Loading to vessel including lashing according to IMO standard and V's [the wind turbine manufacturer] guidelines."
The turbine manufacturer contracted for the carriage of the blades by road to the port terminal (J-Terminal) in Esbjerg, which was the logistics services provider's usual subcontractor. Two blades were damaged while under the care of J-Terminal. J-Terminal notified the logistics services provider about the damage, which subsequently notified the turbine manufacturer. The wind turbine manufacturer held the logistics services provider liable for the damages as it considered the terminal to be its subcontractor and contended that the provider was therefore responsible for the terminal's error. To support this claim, the turbine manufacturer submitted that:
- it had not entered into a contract with the terminal;
- the terminal was the logistics services provider's usual subcontractor; and
- it was set out in the logistics services provider's quotation that J-Terminal was the logistics services provider's stevedores.
The logistics services provider denied liability and submitted that it had been contracted only to bear responsibility for the blades when delivered alongside the ship in Esbjerg under hook; mentioning that J-Terminal was its stevedores meant that the terminal was contracted by the logistics services provider to perform the stevedoring work (ie, loading the vessel in Esbjerg). However, this did not mean that it had contracted the terminal to receive and handle the blades in the port, which was a terminal rather than a stevedore activity.
The Maritime and Commercial Court found that the logistics services provider was not liable for the damage pursuant to the agreement between the parties, as the blades could not have been deemed to be in the logistics services provider's custody when the damage occurred.(1) The court stated that:
"the court does not find that the LSP [logistics services provider] pursuant to the agreement between the parties, should take responsibility for the handling of the blades at the port of Esbjerg before the blades were to be loaded onboard the vessel. It is not of any relevance that the framework agreement (the service agreement) of 11 July 2011 between V [the wind turbine manufacturer] and the LSP, which refers to V's general conditions for transport services, stipulates that it comprises a much broader scope of services, including handling of the goods prior to their loading onboard the vessel. The service agreement, thus, does not decide the scope of the services which the LSP is to provide with respect to the particular transports as the scope of each transport assignment is determined by reference to, as in this case, a scope of supply."
The court attached importance to the description of the contracted services mentioned in the scope of supply and interpreted "liner in port of Esbjerg to free out port of Manfredonia" to mean that the responsibility of the carrier began when it received the cargo for loading onto the vessel. This interpretation appears to correspond with the definition of the concept of 'liner in' as set out in Section 336 of the Merchant Shipping Act, from which it follows that the charterer must deliver the goods alongside the ship and that the owner must carry out the loading.
For further information on this topic please contact Jesper Windahl at Birch Windahl by telephone (+45 35 25 38 00) or email (firstname.lastname@example.org). The Birch Windahl website can be accessed at www.birchwindahl.dk.
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