A Danish trading house (T) bought consignments of Converse and Diesel clothes from its Spanish suppliers for approximately Dkr2 million.
T booked transport of the goods from Barcelona to Denmark with a Danish contracting carrier (F), which sub-contracted the transport to a second contracting carrier (F1), which in turn sub-contracted to a Polish haulier (F2).
T did not inform F when booking the transport that the consignment was of high value and theft sensitive or that certain precautions should be followed to avoid theft. However, due to their long lasting cooperation, F was aware that T imported and marketed designer clothing. The consignment note issued by F stipulated that it was the carrier, but included no information regarding the nature of the consignment. The cargo was taken for carriage by the driver of the Polish haulier on March 16 2012, who drove approximately 120 kilometres to Figueres, Spain, where he parked the trailer at a petrol station, which provided no security against theft. The driver then took a rest of more than 45 hours until March 18 2012, when he noted that a theft from the trailer had occurred.
When delivering the consignment in Denmark, it was ascertained that clothing worth Dkr1.1 million and weighing 3,656 kilograms had disappeared.
T's cargo insurers started legal proceedings against F, which submitted a claim for unlimited compensation of Dkr1.1 million. T referred to the fact that the carriage had been performed in a grossly negligent fashion, as:
- the loaded tarpaulin trailer had remained unprotected for more than 45 hours at a gas station in Spain, which enabled the theft to take place; and
- this exposure should have been avoided by delaying departure from Barcelona until the driver had had his 45-hour rest or by engaging a driver who had already rested.
The Maritime and Commercial Court decided that F was entitled to limit its liability to 30,456 special drawing rights. The court reasoned as follows:
"With respect to the question of gross negligence [cf. Art 29 of the Carriage of Goods by Road Convention] the court notes that T booked the transport as a carriage of general cargos. On this basis, and since no information is provided that may give grounds for an assumption that facts in connection with the parking of the trailer at the gas station or other special circumstances can be considered as being the result of fault on the part of the driver or the haulier, the court finds that it has not been proven that a case of gross negligence exists."
The Maritime and Commercial Court further found that the cargo insurer could not bring a direct action under the Carriage of Goods by Road Convention against F1. The court reasoned as follows:
"With respect to the cargo insurers claim against F1 the court notes that it is undisputed that no contract exists between T – into the rights of which cargo insurers have subrogated – and F1 who is a second contracting carrier. No claim has been made that F1 should be liable in tort. On this basis, and since the cargo insurers have presented no circumstances which may lead to another conclusion, it has not been established that a claim can be made directly against F1."
It follows from the judgment that, as a general rule, gross negligence exists in the case of theft from an unprotected trailer only if the carrier has been instructed that special precautions must be followed to avoid theft and it fails to follow such measures. The fact that the loaded tarpaulin trailer was unnecessarily exposed to an increased risk of theft after being left for two days at an unprotected petrol station did not constitute gross negligence.
Danish legal literature debates whether a claim under the Carriage of Goods by Road Convention can be made by cargo interests directly against a sub-carrier of the contracting carrier. This judgment is the first Danish decision which rejects this possibility with explicit reference that a contractual relationship does not exist between a shipper and a carrier's sub-carrier.
For further information on this topic please contact Jesper Windahl at Windahl Sandroos & Co by telephone (+45 3525 3800) or email ([email protected]). The Windahl Sandroos & Co website can be accessed at www.wsco.dk.