A Danish exporter sold six guide rollers for a printing machine to a Japanese buyer with postage and insurance paid with conditions. The purchase price was 285,410 Danish crowns and the weight of the shipment was 85 kilos per waltz. The seller has entered into an agreement with a freight forwarder for door-to-door transport of rolls from Bjert in Denmark to Gotemba in Japan, in accordance and on the basis of the terms and conditions of the Nordic Freight Forwarders Association (NSAB 2015).
The freight forwarder has entrusted the management of the shipment at the airport to an airport operator, who has undertaken to carry out security checks of the shipment at the airport.
The security check was carried out by the airport operator by drilling holes in the wooden crate in which the shipment was packed, and a guide roller in a transport crate was damaged. The freight insurers paid compensation in the amount of DKK 42,325 and took legal action against the airport operator demanding payment of compensation in this amount.
The freight insurers claimed that the liability for damage caused by the security check carried out did not fall under the NSAB 2015 and, moreover, that the damage was in any event caused by gross negligence, so the claim , regardless of whether the NSAB 2015 was applicable, could not be limited and was not prescribed, regardless of whether a year had passed since the date of the prejudice caused to the proceedings initiated.
The airport operator claimed that performing the security check was a commercial service which was sold by the airport to the freight forwarder and the service was provided in accordance with the NSAB 2015. On this basis, the airport asserted that any liability had been expired in accordance with Article 28 (1) of the NSAB 2015, given that more than a year had elapsed from the time the goods were delivered to the time of the proceedings. Therefore, the one-year limitation period had to be applied whether or not injury was due to gross negligence. In this regard, the airport operator claimed that Article 6 (2) of the 2015 NSAB could not be interpreted as meaning that the limitation period of one year did not apply in such circumstances. . Subsection 6 (2) reads as follows:
The forwarder may not invoke the rules of these conditions which exonerate or limit his liability, or alter the burden of proof, if it is proved that the forwarder’s subcontractor has voluntarily, or that the forwarder himself or its own employees willfully or through gross negligence caused the damage, delay or any other loss, unless otherwise specified in § 2.
The court concluded that the claim was covered by the NSAB 2015 and that the claim had become time-barred. The court said:
It follows from Article 28, para. 1 of the 2015 NSAB, that a claim against the freight forwarder must be filed within one year, as the claim has otherwise been lost. The period runs for deterioration or damage to the goods from the day the goods were delivered to the consignee.
As more than a year had passed since the date on which the damaged goods were delivered to the consignee, the limitation period had therefore expired, cf. NSAB article 28, paragraph 2. The argument put forward by [the cargo insurers] this [the airport operator] that S. 28 (2) does not apply due to NSAB § 6, para. 2, can not lead to a different result. The court has [emphasised] that the provision only prevents a freight forwarder from invoking provisions set out in the NSAB which exclude or limit its liability or which alter the burden of proof. On this basis and in accordance with the wording of NSAB § 28 and the placement of this provision in the body of rules, the court finds no basis for supposing that § 6, para. 2, excludes the application of the limitation rule of § 28, even in cases of gross negligence.
It results from the judgment that a mission relating to the performance of security checks, which must be carried out in accordance with the rules of public law, can be undertaken as a commercial service and as such must be issued in accordance with the NSAB 2015. The court had to decide whether it was relevant to the limitation issue whether the freight forwarder or the airport could be deemed to have caused the damage through gross negligence. The court interpreted section 28 of the 2015 NSAB and came to the conclusion that the one-year limitation period for claims cannot be viewed as a provision that “exonerates or limits its liability, or modifies the burden. some proof “. According to the NSAB 2015, the limitation period of one year therefore also applies according to the NSAB 2015 in the event of damage caused by gross negligence.
For more information on this topic, please contact Jesper windahl to WSCO Advokatpartnerselskab by phone (+45 3525 3800) or by e-mail ([email protected]). The WSCO Advokatpartnerselskab website can be accessed at www.wsco.dk.