Does the General Conditions of Danske Havnevirksomheder (DHAB) apply where the terms have not been expressly agreed between the parties? This was the question in a case recently considered by the Danish Maritime and Commercial High Court.
Henrik Thal Jantzen and Alexander S. Vishart Gryholm, Hafnia Law, Denmark
A wind turbine manufacturer, Vestas, had entered into a contract with a transport company, Baltship, for the carriage of 63 wind turbine blades from the Port of Esbjerg in Denmark to Italy. The handling of the wind turbine blades at the Port of Esbjerg prior to the actual loading was not within the scope of transport agreement between Vestas and Baltship. Baltship had not entered into an agreement with Jutlandia to perform any other tasks than the actual loading of the wind turbine blades. Accordingly, the handling of the wind turbine blades prior to the actual loading was neither within the scope of the agreement between Baltship and Vestas nor within the scope of the agreement between Baltship and Jutlandia.
The first point at issue was whether Vestas had entered into an agreement with Jutlandia regarding the handling of the wind turbine blades prior to the actual loading. On basis of the evidence in the case, the Danish Maritime and Commercial High Court found that Vestas, by its actions, de facto had entered into an agreement with Jutlandia. The Court emphasized that Vestas had contacted Jutlandia prior to the delivery of the wind turbine blades at the Port of Esbjerg and had informed Jutlandia of the number of blades and the time of delivery. In addition, Vestas had delivered the wind turbine blades at Jutlandia’s terminal.
Two of the wind turbine blades had been damaged during the unloading from trucks at the Port of Esbjerg. Jutlandia’s employees, who were familiar with Vestas’ guidelines for handling of wind turbine blades, did not follow the instructions with respect to the stacking of the blades in blocks as they stacked the two wind turbine blades on top of each other. As a result, the stacked wind turbine blades were easily impacted by wind. Immediately after the wind turbine blades had been stacked on top of each other, they were blown over due to gusting winds. The wind turbine blades were later asserted as a total loss.
The Danish Maritime and Commercial Court held that Jutlandia was responsible for the damage to wind turbine blades.
Having found that that Jutlandia was responsible for the damage to wind turbine blades, the second point at issue was whether Vestas’ claim against Jutlandia was time-barred. This depended on whether DHAB 2007 was applicable to the agreement between Vestas and Jutlandia. If DHAB 2007 applied, the claim would be time-barred. If DHAB 2007 did not apply, the claim would not be time-barred pursuant to the general rules on limitation of action.
The expert judges found that DHAB 2007 was so commonly used in connection with the performance of stevedoring and related port work in Danish ports that Vestas, as a professional player with its own transport department and as a purchaser of many stevedoring tasks, must have been aware that DHAB 2007 applied in relation to all stevedoring and port work performed by Jutlandia, unless otherwise expressly agreed. The presiding judge acceded to the opinion of the expert judges.
Accordingly, the Danish Maritime and Commercial Court found that DHAB 2007 applied. Consequently, Vestas’ claim against Jutlandia was time-barred.
At first glance, the reasoning of the Danish Maritime and Commercial Court might seem contrary to general principles of Danish contract law. Under general principles of Danish contract law, a burdensome term has to be expressly agreed between parties, either by being printed in the contract, by reference, etc. However, it is also a prevailing principle that the likelihood of considering a standard term as incorporated, increases with the level of expectation. Given that Vestas was as a professional player with its own transport department and had previously contracted with Jutlandia, Vestas must have been aware that DHAB 2007 was applicable to all stevedoring and port work performed by Jutlandia. It must be stressed that the case was decided on basis of special circumstances in the case. It is therefore doubtful whether the case will serve as precedence in other cases where a set of standard terms has not been expressly agreed between the parties.