A Danish wine importer purchased 'ex cellar' two consignments of wine, each of 24,600 litres, from a wine exporter in France. The parties agreed that the term of delivery 'ex cellar' should be interpreted to mean that the importer bore the risk of carriage of the goods once the exporter's employees had sealed the wine into containers.

The importer entered into an agreement with a contracting carrier for carriage of the wine to Denmark in two tank containers. In turn, the carrier entered into an agreement with Intercontainer-Interfrigo SC, a container company owned by a number of European railway companies. Intercontainer entered into an agreement with the railway companies SNCF, DB and DSB Gods for performance of the carriage to Denmark.

On November 18 1998 one of the tank containers was filled and sealed. On the same day SNCF issued a consignment note for the railway carriage from Bruges to Copenhagen. Intercontainer was specified as both consignor and consignee on the note.

Upon the container's arrival at DSB Gods in Padborg, the tap valve was discovered to have leaked. The leakage could not be remedied immediately and so the container continued its journey to Copenhagen, where the damage was found to have been caused by incorrectly fitted rubber packing around the cover.

The importer commenced legal proceedings against the contracting carrier and DSB Gods, claiming that they were liable for the damage incurred. In its judgment of May 2001 the Maritime and Commercial Court in Copenhagen dismissed the claim on the basis that the container had been filled and sealed by experienced professionals in France, in compliance with an established procedure. The court also found that the consignor had shielded and sealed the cover, with the result that the carrier was unable to check whether the container was shut securely. Furthermore, there was no contractual basis for imposing on the carrier a duty to check the filling work performed by the consignor. A court minority (two judges) ruled that the importer was entitled to claim damages directly against DSB Gods, regardless of the fact that there was no contract between DSB Gods and the importer, who was specified as neither consignor nor consignee on the railway consignment note.

For further information on this topic please contact Jesper Windahl at Bech-Bruun Dragsted by telephone (+45 7733 7733) or by fax (+45 7733 7744) or by email ([email protected]).