In a recent case,(1) a Danish exporter (E) issued invoices to a well-known French cosmetics company (A) regarding the sale of cosmetic products for 1,648,994 kroner.
There had been no prior agreement between the parties, and the agreement came about based on an email inquiry from A to E. The email appeared to be sent by a person who was employed by A.
With a view to arranging transport of the products to A, E contacted a Danish carrier and instructed that the shipment should be delivered to A's warehouse at a specified address in France.
When the carrier's driver arrived at the address provided, the location appeared abandoned and covered in graffiti. The carrier informed E of this by telephone. E then contacted a person (NN) at the email address, which was provided when the agreement was concluded with A and stated the following:
The driver called this morning and drove to the address you gave us. He came to an empty warehouse. Called [NN] who said you tried to reach me on Friday to change the warehouse address? I was not contacted.
NN replied to this email and stated that the shipment, due to covid-19-related conditions, had to be delivered to a warehouse at another address.
The email appeared to be from A, as it included their signature. E then forwarded this email to the carrier with a request for delivery to this new address. To check that everything was correct, E requested that the carrier call A to confirm the changed address provided. A's telephone number was provided by E. The carrier called the number and NN, who had also sent the email with the changed delivery address, confirmed that the address was correct.
E then sent an e-mail on 31 May 2021, at half past nine in the morning, to the carrier: "It is about a 30-minute drive. If there is the slightest doubt as to whether it is a genuine "'warehouse" operated by "A" . . . then we hold the horse."
The transporter then stated that a company with a name that was confusingly similar to A's, but not identical, rented a warehouse at the new delivery address.
E then sent an email at 12.17pm to the carrier:
Hi Steffen,
OK thanks.
I have to assume that he means "A" and that it is evident from the building. He is welcome to take a picture if possible.
At 12.51pm the carrier replied as follows:
Hi Rick
Here are pictures from the driver + Pics from FR-77390 Guignes. GPS for unload . . . + pic of location on Map + pics + pic of car of the guys that unloads us + Will revert with picture from front gate after we leave. We unload by side on court yard and on front of us is written warehouse [TR]
The shipment was delivered by the carrier at this location. A's name did not appear at the place of delivery. The consignment was lost when the goods were delivered.
E brought legal proceedings against the carrier and claimed that the latter was responsible for having misdelivered the goods.The carrier had delivered this contrary to the instructions given, as A's name and logo did not appear on the delivery address, which the carrier should have checked. The carrier rejected the claim and claimed that the E, by email at 12.17pm, had approved that delivery could be made at the stated address, even though A's name did not appear on the building.
The Maritime and Commercial Court came to the conclusion that the carrier was not responsible for the wrong delivery of the goods pursuant to the Contract for the International Carriage of Goods by Road (CMR). The Court stated the following, among other things:
The court assumes that [A] informed [the Carrier] by e-mail of 31 May 2021 at 9.30 that they should be particularly attentive. If there was the slightest doubt as to whether the address . . . was the right warehouse, the Carrier should thus "hold the horse".
. . . .
By e-mail on 31 May 2021 at 12:10, the Transporter informed A that [A company with a name reminiscent of A's] rented a warehouse at the given address and that the Transporter wanted to unload the goods at the place in question.
By e-mail of 31 May at 12.17, [A] replied, among other things: "Ok, thank you", and that the Transporter should take a picture of the warehouse if possible. The court finds that the Carrier correctly perceived the above-mentioned e-mail as an acceptance that the unloading of the goods could take place at the place in question, as A made no further reservations to this end.
In case law and the legal literature, it is disputed whether liability for incorrect delivery must be assessed according to article 17 of the CMR or according to general rules of transport law. The judgment assumes that the basis of liability in the case in question is article 17 of the CMR. The judgment differs from other cases of wrongful delivery in that the transport customer must have been exposed to fraud committed by identity theft before the conclusion of the transport agreement, such that the goodswere exposed to the risk of being lost as a result of them being transported to the delivery address instructed by the shipper.
The circumstances that led to the loss of the goods in the specific case thus relate significantly to the time prior to the start of the transport.
It is not clear in the case law whether a carrier, in such cases where there is "identity theft", can incur liability if:
- the goods are delivered to the stated address;
- the name of the stated consignee is not mentioned at the place of delivery; or
- that name is not signed or otherwise confirmed upon delivery.
Once arrived at the instructed address, the carrier must ensure that the goods are delivered to the right recipient. The Court assumes that such an obligation exists, but the judgment does not seem to indicate that any strict liability applies in relation to the carrier's duty to investigate these matters.
For further information on this topic please contact Jesper Windahl at WSCO Advokatpartnerselskab by telephone (+45 3525 3800) or email ([email protected]). The WSCO Advokatpartnerselskab website can be accessed at www.wsco.dk.
Endnotes