Shipping company not liable for theft of trailer from its own terminal area

A firm of haulage contractors and a shipping company had a fixed contract for the carriage of trailers from Aarhus to Kalundborg. When the trailers were placed on the terminal area, the shipping company would issue a ticket to the firm of haulage contractors. The shipping company would then roll the trailers on board the ferry.

The case concerned a trailer which was stolen after the firm of haulage contractors had placed it on the terminal area and had been given a ticket. The question was therefore who was to bear the risk of the theft. Section 274 of the Danish Maritime Code provides that the carrier is responsible for the cargo while it is in the carrier’s care in the loading port. This rule cannot be derogated from to the detriment of the carrier, but the contract between the parties can help to establish when the cargo is entrusted to the shipping company and for how long the cargo is placed in the shipping company's care.

The contract between the parties to the case included 'transporting trailers on and off board'. In the standard terms and conditions of the shipping company, it was specified that cargo was not deemed to be surrendered until a sea waybill was issued and that the firm of haulage contractors was responsible for the cargo while it was placed on the shipping company’s area.

The Supreme Court: Trailer not in shipping company's care

Firstly, the Supreme Court assessed that the ticket was not comparable to a bill of lading, a receipt or a sea waybill. Thereafter, the Supreme Court emphasized that:

• it was the driver who had parked the trailer on the lot in the terminal area;
• the shipping company's staff were not to handle the trailer until it was to be driven on board;
• there was a bar and a ticket office at the entrance;
• otherwise there was free access to the area which was neither fenced nor video-surveilled;
• the area was also used by carriers as a parking lot for trailers which were not to be driven on board the ferry.

Even though the trailer had been photographed by the shipping company to prove its condition when it passed the ticket office, the Supreme Court assessed, on the basis of the facts listed above, that the shipping company had not had the trailer in its care. Consequently, the claim against the shipping company was dismissed.

IUNO's opinion

The judgment is a fine example of the definition of the carrier's period of care. The written contract between the parties is essential in that connection.

The Supreme Court attaches weight to the fact that according to the contract, the trailers would not be placed in the shipping company's care until a sea waybill had been issued - even though no sea waybills had been issued in the course of the co-operation between the parties which involved many thousands of trailers each year.

It was also significant that the contract clearly stipulated that the firm of haulage contractors was responsible for the cargo while it was on the shipping company's area and that the actions of shipping company had not given the impression that they had assumed responsibility for the trailer.

[Supreme Court Judgment of 19 December 2012, case no 36/2011]