A recent case concerned the question of liability following the miscarriage of audio-visual equipment during carriage between Denmark and Moscow. The consignment with a value of nearly $176,000 and a total weight of 11,626 kilograms had been purchased by a US company with the intention of using it in a cinema in Moscow, where the goods were to be taken from Herning, Denmark. The Russian consignee contracted with the Danish carrier A on the performance of the carriage to Moscow and A issued a waybill to the consignor containing the instruction 'direct delivery.' The address and telephone number of the consignee and customs clearance were stated on the waybill. Carrier A loaded the goods into a trailer and shipped the trailer by ferry from Denmark to Latvia, where he assigned the carriage to the intermediary contracting carrier B, who in turn assigned the carriage to C, who performed the carriage to Moscow.
On October 21 1997 C's driver arrived in Moscow with the trailer but had difficulty finding the addresses of the customs clearance and consignee. At one point the driver was approached by persons who claimed to represent the consignee. They asked the driver to drive to a warehouse situated at an address not written on the waybill. The driver followed these instructions, leaving the trailer in their charge. When the driver returned, the trailer had been emptied and the goods were missing.
The cargo insurers brought an action against A claiming that he had unlimited liability for the consequences of the miscarriage. It was alleged that A had been grossly negligent by following unidentified persons to an unknown address and leaving the trailer unguarded. Carrier A denied the charges. He joined carrier B as a party to the action, who also denied liability for damages and who referred to Section 46(1)(a) of the CMR Act pursuant to which the carrier who causes the loss is solely liable.
Two of the judges of the Maritime and Commercial Court concluded that A had unlimited liability towards the cargo insurers and found that C's driver had been grossly negligent in leaving the trailer unsupervised in an unknown place. However, one judge found that A had limited liability pursuant to Section 29(1) of the CMR Act since the driver had no reason for being suspicious of the unidentified persons who claimed to represent the consignee.
All three judges agreed that A was not entitled to recourse against the intermediary contracting carrier B, as carrier C caused the loss and was solely liable for the loss pursuant to Section 46(1)(a). The court referred to the fact that the loss had not been caused by B, but by the driver employed by C and there was no evidence indicating that C was unable to pay damages (which could justify a derogation from the provision in Section 46(1)(a)).
The judgment complies with the interpretation of Section 46(1)(a) by Jesper Windahl and Peter Lyck in the Danish Weekly Law Reports 1999 (page 10).
For further information on this topic please contact Jesper Windahl at Bech-Bruun Dragstedby telephone (+45 7733 7733) or by fax (+45 7733 7744) or by e-mail ([email protected]).
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