Aage Krogh, IUNO Denmark
The Maritime and Commercial High Court has ruled that a Danish carrier is liable for a trailer being stolen in front of the freight forwarder’s terminal. The trailer was filled with hams on hangers worth approximately 40,000 EUR. The carrier was liable because the trailer had not passed into the freight forwarder’s custody when placed in front of the freight forwarder’s terminal.[1]
A freight forwarder was hired to transport 21,000 kg of fresh ham from a butchery in Horsens, Denmark, to a customer in Italy. The freight forwarder engaged a Danish road haulier to perform the road carriage. The road haulier, who had performed several transports for the freight forwarder, subleased the trailer for the specific carriage via the freight forwarder.
The road haulier picked up the goods at the butchery in Horsens, Denmark, and then drove to the freight forwarder’s terminal in Padborg, Denmark, where the CMR consignment note should be collected. Upon arrival at the terminal, the trailer was parked on the road in front of the freight forwarder’s terminal. A different driver was supposed to take over in Padborg and drive to Italy. However, the next day the trailer had been stolen.
Following the theft, the freight forwarder took legal action against the Danish road haulier and claimed damages for approximately 40,000 EUR in order to compensate the loss.
Disagreement About Custody of the Trailer
The carrier argued that the trailer had passed into the freight forwarder’s custody when it was placed in front of the terminal in Padborg, and that because of this the freight forwarder was responsible for the theft. The carrier stated that there had been an oral agreement that the trailer could be parked by the freight forwarder’s terminal, and that there was a GPS installed in the trailer, which made it possible for the freight forwarder to keep the trailer under surveillance 24 hours a day.
On the other hand, the freight forwarder stated that the road haulier had not been permitted to park the trailer on the freight forwarder’s area or outside on the road. Even though there was a GPS installed, it was only used for “track and trace” as 24-hour surveillance would be very costly.
The Maritime and Commercial High Court: The Road Haulier is Liable
The Maritime and Commercial High Court established that the road haulier was liable for the goods, while they were in his custody and until they were delivered. The Court referred to article 17 of the CMR Convention. Because of this, it was the road haulier who had to prove that the trailer had passed into the custody of the freight forwarder when the trailer was placed in front of the terminal.
The Court did not consider whether there was an oral agreement about the parking of the trailer in Padborg. Instead, the Court stated that such an agreement would not by itself lead to change of custody. Further, the carrier could not expect the freight forwarder to keep the trailer under 24-hour surveillance, even though a GPS was installed.
Taking these circumstances into account, the Court found that the road haulier had not proven that the trailer had passed into the custody of the freight forwarder prior to the theft. Due to this, the road haulier was liable according to article 17 of the CMR convention for the lost hams on hangers worth approximately 40,000 EUR.
IUNO’s Opinion
This judgment illustrates the liability rule in article 17 of the CMR convention from which it follows that the carrier is responsible for the goods from the time they are given into his custody and until they are delivered.
Even if there had been an agreement on parking the trailer at the freight forwarder’s premises, it probably would not have resulted in the freight forwarder becoming liable for the trailer during the time of its placement there. If a carrier hands over a trailer to subsequent carrier, who has the responsibility for a following carriage, the outcome could turn out differently. You can read about a Danish Supreme Court ruling on the same topic here http://t.co/8pUd6q8L
The carrier’s burden of proof for the change of custody is difficult to lift, unless there is documentation available, e.g. in the form of a signed waybill or similar.
NOTES: [1]Judgment of the Maritime and Commercial High Court, 15 August 2014, case no. H-88-12