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Transport

Carrier liable although complaint was not timely

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Legal news
calendar 23 January 2020
globus Denmark

During carriage of glass walls to Edinburgh the cargo was damaged. The carriage made a stop at the carrier’s depot in Scotland in order to be repacked. Here it was discovered that the walls had moved on their pallets. The glass supplier contacted the carrier and advised that, in case of damage to the cargo, the carrier would be held responsible. Later, when damage was discovered a dispute, regarding who was responsible and whether the carrier had been put on notice in time, arose. The Court found that the notice was not on time, but that the carrier, nevertheless, was liable for the damage, since this occurred during carriage.

A supplier of glass had contracted a carrier to perform a carriage of glass walls. The glass walls were to be transported to Edinburgh. The walls were picked up at an external manufacturer on 16 February 2018. Hereafter, they were carried to Scotland, where they were to be repacked in one of the carrier’s depots. In the depot, it was discovered that the walls had moved on their pallets. No damage was ascertained at the time, but the supplier contacted the carrier and advised that the carrier would be held liable in the case of damage.

The next day, the cargo was examined, and damage was discovered to some of the walls. The remainder were sent to the buyer, but eventually had to be replaced as well. The supplier made a claim for compensation to the carrier. The supplier alleged that the former message to the carrier was a sufficient notice of liability.

The carrier rejected liability and alleged that the cargo was not properly packed by the manufacturer, who had packed the cargo. Furthermore, the carrier alleged the supplier had failed to give timely notice of liability in accordance with the Danish CMR Act, s. 38. The carrier also found that the supplier’s freight claim was out of time, cf. the Danish CMR act, s. 41, since the freight claim was made after the time bar on 22 February 2019.

The Maritime and Commercial High Court: Notice was not in time, but carrier was liable for the damage

The Court found that the supplier had not made punctual notice of breach in accordance with the Danish CMR act, s. 38. Therefore, the supplier had to prove that the damages had occurred while the cargo was in the carrier’s custody.

However, the Court found it proven that the cargo was damaged during the carriage and so the carrier was liable. It was not proven that the packaging was insufficient, and therefore the carrier could not rely on the Danish CMR act, s. 25(1)(b), concerning exemption from liability due to insufficient packing.

The Court found that the supplier’s claim for proportional freight had such a connection to the original claim that the limitation period due to the CMR act, s. 41(1), was suspended by the first legal proceedings. Therefore, the supplier’s freight claim also succeeded.

IUNO’s opinion

The decision underlines the importance of a clear notice of liability. This should state that the cargo interest holds the carrier liable; not that it intends to do so at any later stage. However, the case is also an example that a cargo interest succeeds, although it has the burden of proof that the damage occurred during carriage. And it illustrates the carrier’s burden of proof that an exemption of liability applies, even in case of a cargo which may be seen as delicate

[The Maritime and Commercial High Court’s ruling of 6 January 2020 in case BS-7783/2019-SHR]

A supplier of glass had contracted a carrier to perform a carriage of glass walls. The glass walls were to be transported to Edinburgh. The walls were picked up at an external manufacturer on 16 February 2018. Hereafter, they were carried to Scotland, where they were to be repacked in one of the carrier’s depots. In the depot, it was discovered that the walls had moved on their pallets. No damage was ascertained at the time, but the supplier contacted the carrier and advised that the carrier would be held liable in the case of damage.

The next day, the cargo was examined, and damage was discovered to some of the walls. The remainder were sent to the buyer, but eventually had to be replaced as well. The supplier made a claim for compensation to the carrier. The supplier alleged that the former message to the carrier was a sufficient notice of liability.

The carrier rejected liability and alleged that the cargo was not properly packed by the manufacturer, who had packed the cargo. Furthermore, the carrier alleged the supplier had failed to give timely notice of liability in accordance with the Danish CMR Act, s. 38. The carrier also found that the supplier’s freight claim was out of time, cf. the Danish CMR act, s. 41, since the freight claim was made after the time bar on 22 February 2019.

The Maritime and Commercial High Court: Notice was not in time, but carrier was liable for the damage

The Court found that the supplier had not made punctual notice of breach in accordance with the Danish CMR act, s. 38. Therefore, the supplier had to prove that the damages had occurred while the cargo was in the carrier’s custody.

However, the Court found it proven that the cargo was damaged during the carriage and so the carrier was liable. It was not proven that the packaging was insufficient, and therefore the carrier could not rely on the Danish CMR act, s. 25(1)(b), concerning exemption from liability due to insufficient packing.

The Court found that the supplier’s claim for proportional freight had such a connection to the original claim that the limitation period due to the CMR act, s. 41(1), was suspended by the first legal proceedings. Therefore, the supplier’s freight claim also succeeded.

IUNO’s opinion

The decision underlines the importance of a clear notice of liability. This should state that the cargo interest holds the carrier liable; not that it intends to do so at any later stage. However, the case is also an example that a cargo interest succeeds, although it has the burden of proof that the damage occurred during carriage. And it illustrates the carrier’s burden of proof that an exemption of liability applies, even in case of a cargo which may be seen as delicate

[The Maritime and Commercial High Court’s ruling of 6 January 2020 in case BS-7783/2019-SHR]

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