Game over: No proof of theft of Play Station consoles

A carrier was to carry a consignment of PlayStation games consoles from Denmark to Norway. The carrier subcontracted the carriage to a sub-carrier who picked up the trailer with the games consoles and left the trailer unlocked in his outdoor storage site in Greve, Denmark, over the weekend. Two days later the sub-carrier drove to Norway with the trailer. On arrival in Norway, it was discovered that the games consoles were not in the trailer.

The consignor's insurer, who had subrogated in the claim against the carrier, believed that the sub-carrier had was guilty of wilful misconduct and that the games consoles had been stolen by the sub-carrier's employees.

Survey report

The circumstances of the carriage were subsequently examined, and a survey report was prepared. A log showed that the doors of the trailer were opened three times and had been open for a total of about 1½ hour the night when the trailer arrived at the sub-carrier's site.

The survey report established that it was most likely that the games consoles were stolen while the trailer was left at the sub-carrier's premises. The inspection report also expressed suspicion that the theft was committed by some employees at the storage site.

The sub-carrier then reported two employees to the police. But the police had to drop the charge due to lack of evidence.

The Maritime and Commercial Court: Neither gross negligence nor proven theft

The Court took into account that goods prone to theft were shipped as ordinary goods wrapped in black plastic and without a CMR waybill. Consequently, the driver had no practical possibility or reason to examine the state, quantity or nature of the goods. As the storage site was both locked and video-surveilled, the Court found that placing the trailer on the site over the weekend did not constitute wilful misconduct even though there were many other firms which had access to the site via a common access code.

The Court ruled that it was uncertain whether the games consoles were loaded unto the trailer at all or whether they were removed from the trailer at the storage site or after arrival in Norway. Even though a log showed that the trailer was opened at the storage site, the Court did not believe that one could know whether the clock of the logging device was set right.

As the police had dropped the charge against the sub-carrier's employees, the Court held that it had not been proven that the sub-carrier's employees had stolen the games consoles. Consequently, the Court dismissed the claim against the carrier for damages in excess of the amount to which the carrier's liability is limited under the Danish CMR Act which the carrier had paid voluntarily.

IUNO's opinion

The judgment shows that it still takes a lot to establish wilful misconduct, and the carrier is therefore fully liable for damages. Even though the goods were prone to theft, they were shipped as ordinary goods wrapped in black plastic, and consequently it did not give the carrier any reason to exercise extra care and attention.

The judgment also shows that logs and survey reports are not in themselves adequate proof in cases of loss if there is uncertainty about other matters (including whether the clock of the logging device is set right).

In this case, there were several undocumented moments, e.g. whether the sub-carrier's employees had stolen the goods, whether the goods were loaded unto the trailer at all, and if so where they were lost.

Consequently, it is therefore important for a consignor to be able to prove all circumstances relating to the loss of goods as almost any evidential problem will be to the advantage of the carrier.

[The Maritime and Commercial Court Judgment of 31 October 2012, case no H-8-11]