Ventilator in headwind

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Legal news

calendar 4 September 2022

globus Denmark

During a road carriage a ventilator system blew off a truck due to strong winds. A claim was made against the carrier and the Maritime and Commercial High Court had to decide if the carrier was liable for the loss when the manufacturer had given guidance how to secure the goods on to the truck.

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A carrier was carrying ventilation systems internally in Denmark for a construction company. On the day of the carriage the winds were strong and one of the systems blew off the truck and was damaged. The construction company’s insurance covered the loss and claimed against the carrier. The insurance believed that the carrier had negligently caused the damage.

The questions in the case were, first, whether the carriers ought to have secured the goods better so that it would not blow off the truck. The driver had received instructions how to secure the goods by the manufacturer’s staff. He had been advised that the goods could not be secured any better or the goods would be damaged. And second, whether the carriage should have gone ahead at all due to the strong winds.

The carrier had also referred to the CMR in the invoice for the carriage and in three other invoices sent to the construction company and so the court also had to decide whether the carrier could limit liability under the CMR if the carrier was liable.

A court appointed expert advised that the ventilation systems had not been secured in accordance with good practice and that this would have been possible. He further believed that the carriage ought to have been cancelled due to the weather.

Driver was responsible

The court found that the goods had not been secured correctly for transport and that this was the reason why it blew off and was damaged. As it could have been secured better without coming to any harm and the carriage ought to have been cancelled, the carrier was liable.

This was the case even though the driver had been instructed how to secure the goods by the manufacturer. The driver was responsible for ensuring that the goods were secured properly.

The court also found that the reference to the CMR in the invoices was insufficient for the CMR to have been agreed between the parties. This led to the case being considered according to Danish tort law and the carrier was fully liable.

IUNO’s opinion

We often see discussions arising regarding liability when the driver and shipper’s staff assist each other in loading, stowing, and securing, or when the shipper warns against certain methods of securing because of the properties of the goods. The rule of thumb is that the driver is responsible for the goods being secured so that the carriage may proceed safely. This is confirmed in this judgment. Carriers and hauliers should ensure that their drivers know this and do not rely on the shipper’s instructions.

[Sø- og Handelsrettens judgement of 16. May 2022 in case sag BS-4153/2019-SHR]

A carrier was carrying ventilation systems internally in Denmark for a construction company. On the day of the carriage the winds were strong and one of the systems blew off the truck and was damaged. The construction company’s insurance covered the loss and claimed against the carrier. The insurance believed that the carrier had negligently caused the damage.

The questions in the case were, first, whether the carriers ought to have secured the goods better so that it would not blow off the truck. The driver had received instructions how to secure the goods by the manufacturer’s staff. He had been advised that the goods could not be secured any better or the goods would be damaged. And second, whether the carriage should have gone ahead at all due to the strong winds.

The carrier had also referred to the CMR in the invoice for the carriage and in three other invoices sent to the construction company and so the court also had to decide whether the carrier could limit liability under the CMR if the carrier was liable.

A court appointed expert advised that the ventilation systems had not been secured in accordance with good practice and that this would have been possible. He further believed that the carriage ought to have been cancelled due to the weather.

Driver was responsible

The court found that the goods had not been secured correctly for transport and that this was the reason why it blew off and was damaged. As it could have been secured better without coming to any harm and the carriage ought to have been cancelled, the carrier was liable.

This was the case even though the driver had been instructed how to secure the goods by the manufacturer. The driver was responsible for ensuring that the goods were secured properly.

The court also found that the reference to the CMR in the invoices was insufficient for the CMR to have been agreed between the parties. This led to the case being considered according to Danish tort law and the carrier was fully liable.

IUNO’s opinion

We often see discussions arising regarding liability when the driver and shipper’s staff assist each other in loading, stowing, and securing, or when the shipper warns against certain methods of securing because of the properties of the goods. The rule of thumb is that the driver is responsible for the goods being secured so that the carriage may proceed safely. This is confirmed in this judgment. Carriers and hauliers should ensure that their drivers know this and do not rely on the shipper’s instructions.

[Sø- og Handelsrettens judgement of 16. May 2022 in case sag BS-4153/2019-SHR]