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Transport

Carrier had not been grossly negligent while carrying expensive champagne

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Legal news
calendar 1 November 2020
globus Denmark

In a recent ruling of the Maritime and Commercial High Court, the Court assessed whether a carrier had acted with gross negligence when carrying expensive champagne as groupage. The cargo owner had not expressed any specific wishes how the carriage was to be executed. The Court found that the carrier had not acted with gross negligence og was able to limit its liability under the CMR.

A supplier of champagne needed carriage of a consignment wine from France to Denmark. A contract of carriage was then made with their usual carrier. Since there were no special requirements to the execution of the carriage, the usual form of carriage, groupage, was agreed.

The driver had to stop at a rest area to sleep during the carriage. While he was asleep in the truck, 7 pallets of champagne were stolen. 4 pallets were left behind, but these were covered with foam from a fire extinguisher and the supplier had to examine the bottles to see if they were damaged. In doing so, the seals on the bottles were broken. It was a high end champagne and breaking the seal from the manufacturer would have a significant impact on its price. Accordingly, the bottles were sold at a lower price to another buyer than the intended buyer. The supplier claimed compensation for this loss of profit as well as the cleaning of the bottles.

The supplier alleged that the carrier had acted with gross negligence by carrying the cargo in a tarpaulin trailer, because the goods were theft attractive. The carrier denied this, since the contract of carriage was for groupage. The carrier also denied that they were obliged to pay compensation for the bottles that were sold since the supplier had been able to sell them with a profit in any event.

The Maritime and Commercial High Court: The contract involved groupage

The Court found that the supplier had not made any request that the carriage should be executed differently than usual. Therefore, the contract involved groupage in a tarpaulin trailer. The Court found that the carrier had not acted with gross negligence and was able to limit their liability under the CMR section 29 subsection 2.

Regarding the claim for the damaged bottles, the Court found that no impartial examination of the bottles’ condition had been made. Since the bottles had been sold with a profit, the Court found that there were no grounds for stating that the supplier was entitled to compensation of a greater amount. The cost of cleaning and repackaging the bottles had not been adequately proven. Thus, the supplier could not claim compensation for these losses and costs.

IUNOs opinion

The ruling adheres to the Supreme Court’s ruling in the case U 2012.115. Here, a load of expensive wine which had been bought on an auction was stolen from an unlocked trailer on a rest area. In this case, the Court found that wine did not automatically mean a high theft risk. Since nothing else had been agreed, the type of carriage could not be considered as gross negligence. IUNO recommends, that cargo interests specifically agree and instruct the carrier, if they want cargo carried in a particularly secure way.

[The Maritime and Commercial High Court’s ruling in case BS-17637/2019-SHR on 4 September 2020]

A supplier of champagne needed carriage of a consignment wine from France to Denmark. A contract of carriage was then made with their usual carrier. Since there were no special requirements to the execution of the carriage, the usual form of carriage, groupage, was agreed.

The driver had to stop at a rest area to sleep during the carriage. While he was asleep in the truck, 7 pallets of champagne were stolen. 4 pallets were left behind, but these were covered with foam from a fire extinguisher and the supplier had to examine the bottles to see if they were damaged. In doing so, the seals on the bottles were broken. It was a high end champagne and breaking the seal from the manufacturer would have a significant impact on its price. Accordingly, the bottles were sold at a lower price to another buyer than the intended buyer. The supplier claimed compensation for this loss of profit as well as the cleaning of the bottles.

The supplier alleged that the carrier had acted with gross negligence by carrying the cargo in a tarpaulin trailer, because the goods were theft attractive. The carrier denied this, since the contract of carriage was for groupage. The carrier also denied that they were obliged to pay compensation for the bottles that were sold since the supplier had been able to sell them with a profit in any event.

The Maritime and Commercial High Court: The contract involved groupage

The Court found that the supplier had not made any request that the carriage should be executed differently than usual. Therefore, the contract involved groupage in a tarpaulin trailer. The Court found that the carrier had not acted with gross negligence and was able to limit their liability under the CMR section 29 subsection 2.

Regarding the claim for the damaged bottles, the Court found that no impartial examination of the bottles’ condition had been made. Since the bottles had been sold with a profit, the Court found that there were no grounds for stating that the supplier was entitled to compensation of a greater amount. The cost of cleaning and repackaging the bottles had not been adequately proven. Thus, the supplier could not claim compensation for these losses and costs.

IUNOs opinion

The ruling adheres to the Supreme Court’s ruling in the case U 2012.115. Here, a load of expensive wine which had been bought on an auction was stolen from an unlocked trailer on a rest area. In this case, the Court found that wine did not automatically mean a high theft risk. Since nothing else had been agreed, the type of carriage could not be considered as gross negligence. IUNO recommends, that cargo interests specifically agree and instruct the carrier, if they want cargo carried in a particularly secure way.

[The Maritime and Commercial High Court’s ruling in case BS-17637/2019-SHR on 4 September 2020]

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Mads

Poulsen

Partner

Aage

Krogh

Partner

Lars

Rosenberg Overby

Partner

Mads

Christopher Whitta-Jacobsen

Associate

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