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Carriage of goods
Is your jurisdiction party to any international conventions on the carriage of goods by sea? If so, does the relevant domestic implementing law contain any notable modifications (eg, extensions to the scope of application)?
Denmark is a party to the Hague-Visby Rules 1968 and has incorporated the rules into its national law (ie, the Merchant Shipping Act). In addition to incorporating the Hague-Visby Rules, Denmark has adopted parts of the Hamburg Rules 1978, even though Denmark is not a party to the Hamburg Rules. This mixture of rules is sometimes referred to as the ‘Scandinavian compromise’ as, by taking this approach, Denmark, Norway, Sweden and Finland have sought to improve and strengthen the legal position of cargo interests compared to the protection offered to it under the Hague-Visby Rules, without abandoning these rules.
What is the official extent of the carrier’s responsibility for goods?
The general liability rules correspond to those of the Hague-Visby Rules. However, under the Merchant Shipping Act, the so-called ‘tackle-to-tackle’ principle from the Hague-Visby rules has been abandoned. Carriers cannot limit liability for loss of or damage to goods occurring at the port of loading or discharge before or after the goods pass the ship’s rail, provided that the goods are in the care and custody of the carrier or its servants or agents.
Contractual limitation of liability
May parties contract out of any legal provisions governing cargo liability?
The rules contained in Chapter 13 of the Merchant Shipping Act are mandatory only in relation to the cargo side, meaning that the carrier may take on more onerous obligations (eg, agree that exceptions for navigational error and fire do not apply or agree to higher amounts relating to the unit limitation rules than the limits established in Section 280 of the Merchant Shipping Act).
Title to sue
Who has title to sue on a bill of lading?
A bill of lading is a document of title (see Section 292 of the Merchant Shipping Act). In other words, it contains a clause to the effect that the carrier undertakes to deliver the goods in exchange for the return of the document only. A bill of lading may be made out to a named person, order or bearer.
The righteous holder of a bill of lading – not the sender – is entitled to sue under the conditions of the bill of lading, insofar as it has suffered actual loss.
What is the time bar for cargo claims?
A cargo claim is subject to the limitations enumerated under Section 501(6-7) of the Merchant Shipping Act.
A claim for damages for loss caused by cargo being delivered without presentation of a bill of lading or to the wrong person is subject to a one-year time bar from the date on which the goods should have been delivered, or from the date on which they were delivered if this was done later.
Definition of ‘carrier’ and ‘goods’
How are ‘carrier’ and ‘goods’ defined in respect of cargo claims? Is there any especially pertinent case law on this issue?
Under the Merchant Shipping Act, the ‘carrier’ is defined as the person who enters into a contract with a sender for the carriage of general cargo by sea. Apart from the shipowner, the carrier can be constituted by a time charterer, voyage charterer or bareboat charterer.
Defences available to carrier
Under what circumstances may the carrier rely on the perils of the sea defence? What other defences are available to the carrier?
The carrier has access to several defences under the Merchant Shipping Act. Section 276 of the Merchant Shipping Act lists two unique exemptions from liability:
- fault or neglect in the navigation or management of the ship on the part of the master, crew, pilot, tug or others performing work in the service of the ship; and
- fire, unless caused by the carrier’s personal fault or neglect.
What legal protections and defences against cargo claims are available to agents of the carrier and other third parties (eg, Himalaya clauses)?
Pursuant to Section 282(2) of the Merchant Shipping Act, the provisions relating to a carrier’s defences and the limits of a carrier’s liability apply correspondingly if:
- the claim is brought against anyone for whom the carrier is responsible; and
- that person shows that he or she acted in the performance of his or her duties in the service or to fulfil an assignment.
This section ensures that the protections and defences contained in the Merchant Shipping Act are not circumvented by a direct claim against a third party.
Deviation from route
Under what circumstances is deviation from the agreed route allowed?
Section 265 provides that if hindrances arise which prevent the ship from reaching the port of discharge and discharging the goods, or if this cannot be done without unreasonable delay, the carrier may instead choose another suitable port of discharge. Further, pursuant to Section 275(2) of the Merchant Shipping Act, the carrier is not liable for losses incurred due to deviation taken in order to save human lives or for other reasonable measures to salvage vessels or other property at sea.
Claims against shipper
What claims can the carrier pursue in respect of the shipper’s failure to meet its obligations?
Under Section 257 of the Merchant Shipping Act, dangerous goods must be marked as such in a suitable manner and the shipper must provide timely notice of their dangerous nature to the carrier and sub-carrier to which the goods are delivered and state the necessary precautions.
Pursuant to Section 291, the shipper is liable without fault towards the carrier – and towards the sub-carrier – for any costs or losses arising out of the carriage of goods if they have been shipped without informing the carrier of their dangerous nature.
In cases not involving dangerous cargo, the shipper is generally liable towards the carrier only for loss or damage caused by cargo, including misdeclaration of cargo, if the carrier can prove that any such loss or damage was caused by the shipper’s fault or neglect.
Multimodal carriage of goods
How is multimodal carriage regulated in your jurisdiction?
The Danish regulatory regime does not provide for a holistic approach to multimodal transport. Rather, as a point of departure, the various forms of transport are regulated under specific unimodal regimes.
However, in a contractual setting Danish law largely supports freedom of contract. Therefore, the parties are free to stipulate the terms of their contract for the carriage of goods. An example of regulating multimodal transport is a network system, which can take on different bespoke variations. A ‘clean network system’ entails that the liability of the carrier is regulated by the liability rules applicable to the particular unimodal sections of the complete transportation. In these cases, when damage or loss is localised to a particular section of a multimodal transport, the relevant test of the carrier’s liability will be governed by the relevant unimodal rules applicable to that particular section of transport.
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