Facts

A Norwegian importer booked the transport of fresh blueberries, currants, blackberries and strawberries with a Danish contracting carrier from the Netherlands to Jessheim in Norway. The value of the goods was €66,332.

The contracting carrier subcontracted the first leg of transporting the goods from the Netherlands to Padborg in Denmark to a Dutch sub-carrier. The second leg was subcontracted to a Danish sub-carrier.

It was stipulated in the transport agreement with both sub-carriers that the transport temperature should be 4 degrees Celsius. The goods were loaded in the Netherlands on May 21 2015. During the carriage to Padborg the temperature in the trailer was higher than agreed at certain periods.

At Padborg the goods were transshipped to another trailer operated by the Danish sub-carrier. In this trailer the transport temperature at the start of the voyage was between 7 to 10 degrees Celsius, after which the temperature fell to 5 degrees Celsius.

On arrival at the importer's terminal in Jessheim on May 22 2015 at 21:37pm the driver of the Danish sub-carrier was directed to an unloading ramp. The driver reversed the trailer to the ramp with the trailer doors open. This resulted in trailer being attached to the terminal's rubber-insulation and the driver turning off the trailer's cooling aggregate. However, unloading by the Norwegian importer's employees did not commence until May 23 2015 at 00:45am and was finished at 1:45am.

After unloading had been completed, the importer recorded in the consignment note that the temperature was too high (between 4.5 degrees Celsius and 10 degrees Celsius). On this basis, the importer made a claim against the contracting carrier that the goods had been temperature damaged during transport and rejected the receipt of the entire consignment. The contracting carrier accepted the claim and made a recourse claim against the Danish sub-carrier, which repudiated liability and submitted that no damages had been caused to the goods while they had been in its custody.

Decision

The court based its decision on the fact that the Danish sub-carrier had arrived at the terminal at the agreed time and that the driver had submitted the consignment note to the consignee, which was informed of the nature of the consignment. On this basis the court stated the following:

"The consignee was, thus, made aware of the cargo loaded in the trailer but did nevertheless instruct C1 [the Danish sub-carrier]'s driver to proceed to an unloading ramp without providing any instructions that long waiting times could occur before unloading would commence and that the driver, consequently, should leave the doors closed and the cooling system running. When the driver on that basis, in accordance with usual practice, reversed the trailer to the ramp with open doors and turned off the cooling system, the court finds that the goods, when the trailer was parked, must be deemed to have placed the goods at the disposal of the consignee to the effect that delivery under the CMR [Convention on the Contract for the International Carriage of Goods by Road] has occurred. The fact that the consignee waited almost three hours before it actually took possession of the cargo cannot lead to another result."(1)

Comment

The judgment tackled the important and recurring question of when delivery under the CMR has been completed. It follows from the judgment that in cases where the carrier arrives at the agreed time and submits the correct documents to the consignee – which then instructs the carrier to attach the trailer to a specific unloading ramp, wherein the driver reverses the trailer with its doors open – then delivery can be deemed to have taken place. In these cases, the consignee must ensure that due care is exercised regarding consignment in order to protect against damage.

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

Endnotes

(1) Maritime and Commercial Court decision of March 21 2016 (Case H-26-15).

This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.