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Road haulier liable in Denmark for subsequent damage in England

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Legal news
calendar 18 February 2015
globus Denmark

A road haulier who performed a road carriage in Denmark was liable for damage of 70,000 Euro which occurred in England whilst the goods were in the custody of the third carrier in the transport chain. This has recently been decided by the Danish Maritime and Commercial High Court.

A Danish manufacturer hired a Danish freight forwarder to arrange for carriage of gear boxes for wind turbines from Videbaek in Denmark to Kerry in Ireland.

The freight forwarder subcontracted the various parts of the transport to different carriers. A Lithuanian road haulier was to collect an empty tarpaulin trailer at the freight forwarder’s headquarter in Esbjerg, pick up the goods at the manufacturer’s warehouse in Videbaek, and truck the trailer to the port of Esbjerg in Denmark. The trailer should then be shipped to Immingham in England, where an English road haulier was to collect the trailer and carry the goods by road to Liverpool.

When the Lithuanian truck driver arrived at the manufacturer’s warehouse in Videbaek with the empty trailer, the workers loaded and stowed the goods, which consisted of three heavy generators and some smaller parts. The agreement between the carrier and the manufacturer stated that the manufacturer should “load and stow”. However, the parties afterward disagreed on who had been responsible for the lashing of the goods.

The Lithuanian driver, who spoke neither Danish nor English, was present during the loading, but did not participate. The heavy generators were fastened to wooden frames and some of the smaller parts were strapped. The goods were not secured with lashing to the trailer itself.

When the workers were done, the Lithuanian driver examined the goods and assessed that the loading seemed stable and secure. He then drove to the port of Esbjerg, passing through several roundabouts and intersections. Upon arrival at the port, the goods were positioned in the trailer exactly in the same place as they had been before departure. The driver delivered the trailer in the port, as his part of the carriage terminated there.

The trailer was then shipped to England, where the English driver collected the trailer without examining the cargo. When passing the first roundabout in Immingham two of the heavy gearboxes fell out of the trailer. The gearboxes were severely damaged and had to be repaired for approximately 70,000 Euro.

Subsequently, the manufacturer claimed damages from the freight forwarder, and the freight forwarder summoned the two road hauliers to the court case.

The Maritime and Commercial High Court: Carrier liable for securing the goods

The Maritime and Commercial High Court decided that the Freight forwarder was liable for the damages in relation to the manufacturer. The Court attached importance to the contractual basis between the parties, which stated that the freight forwarder should secure and control the goods.

The Court dismissed the case against the English road haulier for lack of jurisdiction due to a jurisdiction clause in a frame agreement, read more about the ruling here.

As the Lithuanian road haulier had performed a national carriage, i.e. within the borders of Denmark, the general rules of Danish law applied. The Court stated that a driver has a common duty to secure and lash the goods, even if it had not been agreed specifically with the freight forwarder. The Court referred to the Road Traffic Act, sector guidelines and EU guidelines.

The Court stated that the Lithuanian driver should have been aware that heavy goods can shift during transportation, if they are not secured properly. Because of this, the driver had shown negligence by not securing the goods prior to transport.

Even though the damage occurred at a time where the goods were no longer in the custody of the Lithuanian driver, the damage had to be considered as a consequence of the lack of securing the goods. Consequently, the Lithuanian road haulier was liable for the damage.

IUNO’s opinion

This judgment illustrates that the Danish Court imposes high standards on road hauliers and truck drivers and that the Court attaches importance to public safety rules, i.e. the Road Traffic Act, sector guidelines and EU guidelines.

These high standards challenge the fact that many drivers are under time constraints, low-paid and may not understand Danish or English. Moreover, the Court does not take into account that the drivers often have no knowledge of the goods and therefore do not know how to lash and secure in the most proper way.

The Maritime and Commercial High Court has with this judgment decided that according to Danish law, a carrier can be liable for damages that occur after the goods have been taken into custody by another carrier. The lack of inspection and securing by the driver, who had the goods in custody at the time of the incident, had no influence.

The judgment has been appealed to the Danish Eastern High Court. Naturally, we will return once the Danish Eastern High Court has delivered the judgment.

[Judgment of the Maritime and Commercial High Court, 2 June 2014, case no. H-25-12 and H-27-12]

A Danish manufacturer hired a Danish freight forwarder to arrange for carriage of gear boxes for wind turbines from Videbaek in Denmark to Kerry in Ireland.

The freight forwarder subcontracted the various parts of the transport to different carriers. A Lithuanian road haulier was to collect an empty tarpaulin trailer at the freight forwarder’s headquarter in Esbjerg, pick up the goods at the manufacturer’s warehouse in Videbaek, and truck the trailer to the port of Esbjerg in Denmark. The trailer should then be shipped to Immingham in England, where an English road haulier was to collect the trailer and carry the goods by road to Liverpool.

When the Lithuanian truck driver arrived at the manufacturer’s warehouse in Videbaek with the empty trailer, the workers loaded and stowed the goods, which consisted of three heavy generators and some smaller parts. The agreement between the carrier and the manufacturer stated that the manufacturer should “load and stow”. However, the parties afterward disagreed on who had been responsible for the lashing of the goods.

The Lithuanian driver, who spoke neither Danish nor English, was present during the loading, but did not participate. The heavy generators were fastened to wooden frames and some of the smaller parts were strapped. The goods were not secured with lashing to the trailer itself.

When the workers were done, the Lithuanian driver examined the goods and assessed that the loading seemed stable and secure. He then drove to the port of Esbjerg, passing through several roundabouts and intersections. Upon arrival at the port, the goods were positioned in the trailer exactly in the same place as they had been before departure. The driver delivered the trailer in the port, as his part of the carriage terminated there.

The trailer was then shipped to England, where the English driver collected the trailer without examining the cargo. When passing the first roundabout in Immingham two of the heavy gearboxes fell out of the trailer. The gearboxes were severely damaged and had to be repaired for approximately 70,000 Euro.

Subsequently, the manufacturer claimed damages from the freight forwarder, and the freight forwarder summoned the two road hauliers to the court case.

The Maritime and Commercial High Court: Carrier liable for securing the goods

The Maritime and Commercial High Court decided that the Freight forwarder was liable for the damages in relation to the manufacturer. The Court attached importance to the contractual basis between the parties, which stated that the freight forwarder should secure and control the goods.

The Court dismissed the case against the English road haulier for lack of jurisdiction due to a jurisdiction clause in a frame agreement, read more about the ruling here.

As the Lithuanian road haulier had performed a national carriage, i.e. within the borders of Denmark, the general rules of Danish law applied. The Court stated that a driver has a common duty to secure and lash the goods, even if it had not been agreed specifically with the freight forwarder. The Court referred to the Road Traffic Act, sector guidelines and EU guidelines.

The Court stated that the Lithuanian driver should have been aware that heavy goods can shift during transportation, if they are not secured properly. Because of this, the driver had shown negligence by not securing the goods prior to transport.

Even though the damage occurred at a time where the goods were no longer in the custody of the Lithuanian driver, the damage had to be considered as a consequence of the lack of securing the goods. Consequently, the Lithuanian road haulier was liable for the damage.

IUNO’s opinion

This judgment illustrates that the Danish Court imposes high standards on road hauliers and truck drivers and that the Court attaches importance to public safety rules, i.e. the Road Traffic Act, sector guidelines and EU guidelines.

These high standards challenge the fact that many drivers are under time constraints, low-paid and may not understand Danish or English. Moreover, the Court does not take into account that the drivers often have no knowledge of the goods and therefore do not know how to lash and secure in the most proper way.

The Maritime and Commercial High Court has with this judgment decided that according to Danish law, a carrier can be liable for damages that occur after the goods have been taken into custody by another carrier. The lack of inspection and securing by the driver, who had the goods in custody at the time of the incident, had no influence.

The judgment has been appealed to the Danish Eastern High Court. Naturally, we will return once the Danish Eastern High Court has delivered the judgment.

[Judgment of the Maritime and Commercial High Court, 2 June 2014, case no. H-25-12 and H-27-12]

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