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Transport

Carrier responsible for traces of snail in mineral water

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Legal news
calendar 22 October 2014
globus Denmark

A carrier had to pay DKK 130,000 in damages as he was responsible for the contamination of a tankful of mineral water. According to the Maritime and Commercial High Court, the damages had occurred during the pumping of water into the truck or during the transportation. The carrier could not prove that he was not responsible for the contamination.

A consignor had hired a carrier to transport water from a water company located in eastern Denmark to a bottlery located in western Denmark. The water was transported in a tank truck and the parties had agreed that the carrier was responsible for supplying the equipment necessary for pumping up the water from the tank of the water company. After the carrier had delivered the water at the bottlery, it was tested for bacteria by technicians from the bottlery. The tests revealed some bacteria that could stem from mollusc such as snails. As the amount of bacteria in the water was considerable the water was not fit for drinking.

The question was then how the contamination had occurred and who was responsible. The carrier and the water company disagreed on whether the carrier had been informed that the water was drinking water and not “technical water”, i.e. water meant for pressure testing, cleaning, and so on.

Origin of contamination uncertain

It was not possible to establish with certainty when the water had been contaminated. However, the quality of the water had been tested before the water had been transported and these tests had shown clean results.

During the case it emerged that the tank truck had transported rectified alcohol just before transporting the water, as the tank truck was not exclusively being used for carriage of drinking water or food products. Furthermore, measurements had perhaps been made with an inch ruler into the water, and the hoses used for pumping the water had presumably been connected after lying on the ground. The carrier had spent three to four hours pumping the water from the tank of the water company to the tank of the truck. Throughout this procedure, the truck had been placed under a cherry tree, with the hatches open in rainy weather.

As agreed with the consignor, the driver parked the tank truck over the weekend until the water could be delivered to the bottlery on Monday morning. The carrier had informed the consignor in writing, that the water would not be affected by being left in the tank during the weekend.

According to the carrier it had not been proved that the mineral water was contaminated at the time of delivery to the bottlery. The testing had been done by technicians hired by the bottlery, which meant they were not impartial. Moreover, the carrier stated that if there were bacteria in the water, a possible cause was the fact that the tank of the water company was left open, leaving it possible for snails to access and contaminate the water long before the carrier arrived.

The Maritime and Commercial High Court: Damages occurred during transportation

As the carriage was national, i.e. within the borders of Denmark, the general rules of Danish law applied. No agreement had been made that the CMR convention or the NSAB – the General Conditions of the Nordic Association of Freight Forwarders – should apply.

The Court started by considering when the contamination had occurred. Among other things the court took into consideration the fact that the track record of the water company was impeccable and that nothing indicated that the water had been contaminated prior to transportation.

Moreover, the court stated that the carrier should have known that the water was drinking water and not “technical water”. The unsuitable tank truck combined with the impeccable track record from the water company and the information concerning the driver leaving the tubes on the ground and parking under a cherry tree in rainy weather (where leaves could be washed into the tank) lead to the conclusion that the water was contaminated after the carrier took over the water.

Thus, the carrier had not been able to prove that the contamination of the water had been caused by circumstances which he was not responsible for. Therefore, the carrier had to pay damages. The damages amounted to DKK 130,000 and were based on the principle of reliance damages, meaning the injured party was restored to his original precontractual position.

IUNO’s opinion

The judgment illustrates the carrier’s liability according to the general rules of Danish transport law. According to these rules, the carrier has to prove that the damage is not caused by circumstances which he is responsible for. Furthermore, in cases of national carriage by road in Denmark the carrier has no automatic limitation of liability.

The judgment also illustrates how important it is for parties to have a clear agreement. For the sake of both parties IUNO recommends that the nature of the goods always is clarified before the transport is initiated. The parties should agree on the nature of the goods in order to determine whether there are precautions to be taken in relation to the specific goods.

In case of national road carriage in Denmark IUNO recommends that the parties agree that either the CMR convention or the NSAB shall apply in order to make clear what the legal basis is, and in relation to the carrier – to ensure the opportunity for the limitation of liability.

[Judgment of the Maritime and Commercial High Court, 24 April 2014, case no. H-56-13]

A consignor had hired a carrier to transport water from a water company located in eastern Denmark to a bottlery located in western Denmark. The water was transported in a tank truck and the parties had agreed that the carrier was responsible for supplying the equipment necessary for pumping up the water from the tank of the water company. After the carrier had delivered the water at the bottlery, it was tested for bacteria by technicians from the bottlery. The tests revealed some bacteria that could stem from mollusc such as snails. As the amount of bacteria in the water was considerable the water was not fit for drinking.

The question was then how the contamination had occurred and who was responsible. The carrier and the water company disagreed on whether the carrier had been informed that the water was drinking water and not “technical water”, i.e. water meant for pressure testing, cleaning, and so on.

Origin of contamination uncertain

It was not possible to establish with certainty when the water had been contaminated. However, the quality of the water had been tested before the water had been transported and these tests had shown clean results.

During the case it emerged that the tank truck had transported rectified alcohol just before transporting the water, as the tank truck was not exclusively being used for carriage of drinking water or food products. Furthermore, measurements had perhaps been made with an inch ruler into the water, and the hoses used for pumping the water had presumably been connected after lying on the ground. The carrier had spent three to four hours pumping the water from the tank of the water company to the tank of the truck. Throughout this procedure, the truck had been placed under a cherry tree, with the hatches open in rainy weather.

As agreed with the consignor, the driver parked the tank truck over the weekend until the water could be delivered to the bottlery on Monday morning. The carrier had informed the consignor in writing, that the water would not be affected by being left in the tank during the weekend.

According to the carrier it had not been proved that the mineral water was contaminated at the time of delivery to the bottlery. The testing had been done by technicians hired by the bottlery, which meant they were not impartial. Moreover, the carrier stated that if there were bacteria in the water, a possible cause was the fact that the tank of the water company was left open, leaving it possible for snails to access and contaminate the water long before the carrier arrived.

The Maritime and Commercial High Court: Damages occurred during transportation

As the carriage was national, i.e. within the borders of Denmark, the general rules of Danish law applied. No agreement had been made that the CMR convention or the NSAB – the General Conditions of the Nordic Association of Freight Forwarders – should apply.

The Court started by considering when the contamination had occurred. Among other things the court took into consideration the fact that the track record of the water company was impeccable and that nothing indicated that the water had been contaminated prior to transportation.

Moreover, the court stated that the carrier should have known that the water was drinking water and not “technical water”. The unsuitable tank truck combined with the impeccable track record from the water company and the information concerning the driver leaving the tubes on the ground and parking under a cherry tree in rainy weather (where leaves could be washed into the tank) lead to the conclusion that the water was contaminated after the carrier took over the water.

Thus, the carrier had not been able to prove that the contamination of the water had been caused by circumstances which he was not responsible for. Therefore, the carrier had to pay damages. The damages amounted to DKK 130,000 and were based on the principle of reliance damages, meaning the injured party was restored to his original precontractual position.

IUNO’s opinion

The judgment illustrates the carrier’s liability according to the general rules of Danish transport law. According to these rules, the carrier has to prove that the damage is not caused by circumstances which he is responsible for. Furthermore, in cases of national carriage by road in Denmark the carrier has no automatic limitation of liability.

The judgment also illustrates how important it is for parties to have a clear agreement. For the sake of both parties IUNO recommends that the nature of the goods always is clarified before the transport is initiated. The parties should agree on the nature of the goods in order to determine whether there are precautions to be taken in relation to the specific goods.

In case of national road carriage in Denmark IUNO recommends that the parties agree that either the CMR convention or the NSAB shall apply in order to make clear what the legal basis is, and in relation to the carrier – to ensure the opportunity for the limitation of liability.

[Judgment of the Maritime and Commercial High Court, 24 April 2014, case no. H-56-13]

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Thune Ikkala

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Lars

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