Court ruled in favour of carrier despite misplacement of frozen and refrigerated goods

A Danish company was to ship a consignment of food to a subsidiary in Moscow. The carriage was contracted to a Danish freight forwarder. The freight forwarder entered into an agreement with a sub-carrier about the carriage from Vejle to Fredericia from where the goods were carried by sea to Klaipeda in Lithuania. When the carrier reached Moscow, the goods were destroyed because the refrigerated goods had been placed in the freezing compartment and the frozen goods in the refrigerated compartment.

It was agreed that the consignor was to load the goods himself. The refrigerated goods were to be placed at the front end of the trailer, and the frozen goods at the back of the trailer. The consignor was therefore to load the refrigerated goods first, then the driver was to put up a partitioning wall, and only then the consignor was to load the frozen goods. Finally, the driver was to close the doors.

Both the surveyors and the parties to the case agreed that the partitioning wall was erected correctly. The question was whether the goods had been loaded incorrectly from the beginning or whether the goods had been reloaded in transit.

The Maritime and Commercial Court: Wrong location due to incorrect loading or reloading in transit?

The Court was to assess whether the location of the goods was due to incorrect loading or reloading in transit. The temperature measurements were relatively stable, which is only possible if the doors are kept closed. A major change in the temperature was, however, measured close to the Russian border, but the driver explained this by the authorities briefly having opened the cargo room without moving anything. As the change in temperature was restored within a short time span, the Court held that the goods had not been reloaded.

This conclusion was supported by the location of the partitioning wall as the refrigerated and freeing compartments were not equally large. The driver would have to move the partitioning wall if the two compartments were to change location. The Court therefore concluded that the goods had been incorrectly loaded in Vejle, Denmark.

Responsibility for the incorrect loading

The case then concerned the question of who was responsible for the incorrect loading. The consignor’s employees had loaded the trailer, but the driver had been present most of the time.

The driver had set the refrigeration control system while the goods were being loaded. Therefore, he had not seen the goods being loaded, but he had erected the partitioning wall halfway and closed the refrigerated compartment at the end. The driver had therefore had a chance to detect that the goods had been incorrectly loaded.

However, the Maritime and Commercial Court attached importance to the fact that the driver had only been responsible for erecting the partitioning wall and closing the doors. In other words, the driver was not obliged to examine the location of the goods or their condition. The Court therefore dismissed the claim against both the carrier and the freight forwarder, which meant that the cargo insurer had to bear the loss as the consignor was held liable.

IUNO’s opinion

The principal rule in s. 24 of the Danish CMR Act / art. 17 of the CMR Convention is that the freight forwarder is liable for damage to goods occurring while the goods are in the freight forwarder’s possession.

The freight forwarder may, however, be exempted from liability for damage caused because the consignor has loaded the goods himself. The judgment shows that this exemption applies even though the driver has in fact had a chance to detect the incorrect loading if it is clear that the carrier is not contractually responsible for the loading.

[The judgment of the Maritime and Commercial Court on 15 May 2012, case no. H-99-09]