A Danish manufacturer of wind turbines commissioned a transport of generators to the wind turbines from Videbæk in Denmark to Liverpool. Under the terms of the transport contract, the loading and positioning of the goods in the semi-trailer was to be carried out by the manufacturer, and the carrier was to check and secure all this. Things got complicated when one of the generators fell off the semi-trailer and was damaged.
The carrier commissioned two subcontractors to carry out the transport. The first one was to cover the distance from Videbæk to Esbjerg in Denmark. The semi-trailer was then to be transported by sea to Immingham in the UK, from where it was to be taken up by another subcontractor and transported to Liverpool. The destination was Ireland, but that is completely irrelevant.
The driver of the first subcontractor observed the loading. He noted that the manufacturer did not attach wooden transport frames to the semi-trailer, but nevertheless considered that the load was stable. As if to confirm this feeling, the goods safely reached the ferry, then Immingham and there began the next leg of the transport. Unfortunately, shortly afterwards, the generator fell off the semi-trailer.
They didn’t feel guilty, but the verdict was handed down
Both carriers refused to accept liability for the damage. The first of them argued that the event occurred when the goods were no longer in his custody. The second claimed that he was not responsible for the loading and securing of the goods. So the case went to the Copenhagen courthouse.
The judges found that both carriers were liable for the damage. The Court concluded that they were under an obligation to attach the load to the semi-trailer. This obligation resulted from the Danish Road Traffic Act, the Transport Guidelines and the EU Guidelines.
As regards the first carrier, the Copenhagen court was aware that the damage occurred when he no longer took care of the cargo, but it was the first carrier who should have properly secured it, which he did not do and the whole problem came from this. Neither did the other carrier do so before the start of his transport leg.
We are therefore dealing here with a situation where a carrier is liable for damage when the goods were not in his custody. This may seem surprising since, in accordance with Article 17(1) of the CMR Convention, the carrier is liable for damage to the goods between the time of receipt of the goods and their delivery.
However, the Court pointed out that the liability, in this case, is not based on the CMR Convention, but on Danish national law. For matters not covered by the Convention, national law applies.