Facts

A Danish seller contracted a carrier (Carrier 1) to transport two steel tanks by road from Denmark to the Netherlands. The transport was sub-contracted by Carrier 1 to a performing road carrier (Carrier 2). The seller arranged for the tanks – which weighed 7,600 kilos each and were 11 metres long with a diameter of 3.8 metres – to be packed using heat-shrink wrapping and undertook to load them onto wooden cradles placed on Carrier 2's flatbed trailers. Carrier 2 fastened the tanks to the trailers with metal chains.

When loading was completed, Carrier 2 issued a consignment note under the Convention on the Contract for the International Carriage of Goods by Road (CMR Convention) without any remarks or reservations regarding the condition of the loaded tanks. During carriage, the flatbed trailers were escorted by an accompanying vehicle to the Netherlands.

On arrival at the destination in the Netherlands, the consignee unloaded the tanks from the trailers using a crane. After the trucks had departed, the consignee submitted a claim that damage to the tanks had been detected in the form of a dent in the top of the first tank and a dent in the bottom of the second tank, close to the area where it had been sitting on the cradle. The seller submitted a compensation claim against the carriers and legal proceedings were brought before the Copenhagen Maritime and Commercial Court (H-39-14). The seller argued that it should be presumed that the damage was caused while the tanks were in the custody of the carriers, as no reservations regarding the condition of the tanks or mention of the carriers having no reasonable means of checking them had been inserted in the CMR consignment note.

Decision

The court found the carriers free of liability, as it had not been proven that the damage had been caused during carriage. The court reasoned as follows:

"[The seller] was responsible for the loading of the tanks unto T1[Carrier 2]' s trailers in Denmark. When the tanks were loaded they were wrapped in heat-shrink wrapping. When the wrapping of the tanks is considered together with the nature of the damages, the court finds that the damages, if they had been caused prior to loading, would not have been apparent on the basis of the checking which must be done by the carrier pursuant to the CMR, Art. 8(1). Against this background, no evidential value can be attached to that T1[Carrier 2] did not enter any reservations in the consignment notes when the tanks were taken over for carriage."

Comment

The decision relates to the evidential value that should be given to a CMR consignment note when it contains no reservation on the apparent condition of the goods. Pursuant to Article 8 of the CMR Convention, the carrier must check the apparent condition of the goods and their packaging. Where the carrier has no reasonable means of checking the goods, it must enter its reservations in the consignment note together with the grounds on which they are based. If the consignment note contains no specific reservations by the carrier, it is presumed – unless the contrary is proved – that the goods and their packaging appeared to be in good condition when the carrier received them. Thus, for instance, if a CMR carrier taking a sealed container for carriage cannot control the information provided in the consignment note regarding the content of the container, it must generally enter a reservation to this effect in the consignment note.

The decision clarifies that the presumption does not arise if the carrier can prove that – irrespective of whether no reservation was made in the consignment note – a check by reasonable means as required under the CMR consignment note would not, at the time of taking over the goods, have resulted in anything which would have given rise to a reservation.

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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