Damage caused during security check was time-barred

A cargo owner needed cargo carried from Denmark to Japan and entered into a contract of carriage with a forwarder. NSAB 2015 was agreed between these parties. The forwarder had a handling agreement with a Danish airport while it was in this airport, where the airport was supposed to conduct security checks on cargo. That involved holes being drilled into the box containing the cargo and this caused damage to the cargo.

The cargo owner argued that the damage was in tort as the cargo owner did not believe that they had a contract with the airport. The airport instead was vicariously liable for the security check under principles of liability for independent contractors. The cargo owner considered that the method and execution of the security check were grossly negligent. The cargo owner also believed that it was unnecessary to drill several holes in the box with a large copper drill and that there were other ways to check the goods had to be available.

The carrier and the airport argued that the check was part of the agreement with the cargo owner as it was part of the commercial business of the airport. The carrier also argued that the airport was legally obliged to perform the security checks on the goods. Then the airport had to be considered as a co-contractor in the agreement with the forwarder and NSAB 2015 would also apply to the relationship with the airport. The carrier and the airport argued that the cargo owner’s claim was time-barred, as the claim form was filed after the limitation period expired in those terms.

The cargo owner argued that the claim could not be time-barred even if NSAB 2015 applied. They argued that the limitation period could not apply where the airport had acted with gross negligence, cf. NSAB 2015 § 6.

Claim time-barred according to NSAB 2015

The Maritime and Commercial High Court found that the security checks were part of the transport agreement between the cargo owner and the forwarder, so the checks were covered by the rules of NSAB 2015. Furthermore, the court found that the airport was obliged to perform the security checks on the basis of public regulation.

The court upheld the carrier and the airport’s view that the statute of limitations in NSAB 2015 applied and that the claim form had been filed after the limitation period had expired. The court found no basis in NSAB 2015 § 6(2) for the limitation to not play even if the damage was caused by gross negligence. The claim of the cargo owner was, therefore, time-barred. The court did not decide whether the airport had incurred liability.

IUNO’s opinion

The case is interesting because it lets NSAB 2015 govern liability even if the airport did not have a direct agreement with the cargo owner. There are perhaps good reasons for this since a security check is standard and entirely foreseeable part of airport transport agreements. The case also decides whether gross negligence leads to suspension of time bars in standard terms; and it does not.

IUNO recommends claimants to always be aware of the shortest possible limitation period and carefully consider whether this can also apply to parties other than the direct contracting party

[The Maritime and Commercial High Court’s ruling in case BS-20144/2020-SHR of 28 June 2021]