A Danish distributor of IT equipment contracted with a German freight forwarder (H) over several years for the carriage of various IT equipment, including laptops. In 2006 the parties prepared a safety manual, which defined different safety categories to be adhered to by H when carrying the distributor's equipment. The categories ranged from Level A to Level D; Level B required the carriage of equipment by box trailer and prohibited the use of unprotected parking facilities.
From 2012 to 2014 (approximately), H subcontracted 130 carriages of the IT distributor's consignments to a German sub-carrier (V). It is uncertain whether H provided V with a copy of the safety manual.
In May and June 2014 V sent two emails to H seeking "precise guidelines… as to how we must act with consignments of 1 pallet, 2 pallets etc" and advising H that it was insured only "for 8.33 SDR as per the CMR". It is unclear whether H replied to these emails.
In September 2014 the IT distributor arranged for the carriage of 600 Toshiba computers from Germany to Aarhus, Denmark. H subcontracted the carriage to V, which further subcontracted it to a German sub-carrier. A Convention on the Contract for the International Carriage of Goods by Road (CMR) consignment note was issued, which specified that the carriage included computer equipment. The central part of the consignment note stipulated "Kategorie B".
On September 12 2014 the consignment was loaded into a tarpaulin trailer by H's employees and the German sub-carrier commenced the carriage. On the same day, the trailer was parked for the weekend by the sub-carrier's driver in a parking area in an industrial part of Hamburg. The parking area was unprotected and unlit. On Monday morning, the driver discovered that a significant number of laptops had been stolen from the trailer.
The cargo insurers initiated proceedings before Landgericht Hamburg against H. The court found H liable for the theft due to gross negligence and ordered it to pay unlimited compensation of €107,306.
V initiated negative declaratory proceedings against H before the Maritime and Commercial Court, claiming that H should be ordered to recognise that V could limit its liability.
The Maritime and Commercial Court held that V could not limit its liability, reasoning as follows:
"The court finds that the driver left the trailer, which was a tarpaulin trailer, over the weekend on 13 – 15 September 2014 at a parking area at Hans-Duncker Str. in Hamburg in connection with that the driver was at home for the weekend. The parking area is situated in an industrial area and it is undisputed that it was both unguarded and unlit. The trailer was left unlocked and without any supervision during the entire period. Regardless [of] whether it was agreed between the parties that freight for the transport should be paid as for a transport of general cargo and regardless [of] what V's understanding was with regard to the nature of the goods – which was referred to as "COMPUTER EQUIOM" / COMPUTER EQUIPMENT" and whether V had any knowledge of H's safety manual, the court finds that the parking of the trailer against this background, in any event, posed an imminent risk of the theft from the trailer to the effect that V must be deemed to have acted with gross negligence."(1)
The Supreme Court decided in the Widecom case (referred to in UfR2013,1521) that cargo which is particularly exposed to theft can be treated in the same manner as general cargo, unless the carrier "when the concrete transport agreement was entered into ought to have understood that the cargo was particularly theft exposed and that [the shipper] wanted the transport to be carried out adopting special security measures". The present case did not meet these criteria; however, the Maritime and Commercial Court nonetheless found that the case was one of gross negligence.
Pursuant to Danish court practice before the Supreme Court's Widecom decision, a case of gross negligence existed if the carrier ought to have known the nature of the products carried and failed to take relevant safety measures, irrespective of any special instructions from the shipper. The Maritime and Commercial Court's decision may be interpreted to mean that a CMR carrier must – in any circumstances, regardless of whether it has received special instructions – adopt a minimum safety standard, and that gross negligence occurs when this standard is not met.
For further information on this topic please contact Jesper Windahl at Windahl Sandroos & Co by telephone (+45 3525 3804) or email ([email protected]). The Windahl Sandroos & Co website can be accessed at www.wsco.dk.