A transport company was ordered to pay damages to Siemens Wind Power A/S
Siemens Wind Power had signed a contract with an English company for Siemens to produce 8 windmills and deliver them to the Curragh Mountain Wind Park in Ireland.
The contract determined i.a. The following: “All services provided by the Supplier are subject to the provision of the Transport Contract incl. project specific exhibits, Suppliers FBL or CMR, NSAB2000, Framework Agreement.
The parties shall endeavor to solve disputes or disagreement through negotiations. If the dispute or the disagreement cannot be solved through negotiations between the parties such dispute or disagreement shall be referred to mediation …”
Subsequently, Siemens Wind Power entered into an agreement with the transport company Shipping.dk for the transport of 8 windmills from Esbjerg to Curragh Mountain Wind Park in Ireland.
Shipping.dk had an agreement with Abnormal Load Services Ltd for transport from the port of arrival in Ireland to Curragh Mountain Wind Park. met. This company then arranged with Mar-Train Heavy Haulage Ltd. that they should carry out the transport.
In the morning the 3 trucks with the 3 windmills arrived at the wind farm.
The second truck tried to overtake the truck in front and the truck drove too far to the side of the road. As a result, one wheel of the overtaking truck began to sink into the ledge and the trailer overturned. The ropes strapping the windmill to the trailer snapped and the windmill fell off the trailer.
The claims of the plaintiff and the defendant
Siemens Wind Power has filed an application for EUR 95,000 in damages.
Shipping.dk asked not to be held responsible and to dismiss the claim. Shipping.dk based its claim on the fact that Siemens Wind Power had not initiated mediation; and mediation was a condition of the contract before either party could bring an action.
The Judgment of the Maritime and Commercial Court
The transport company Shipping.dk was ordered to pay Siemens Wind Power damages plus costs and interest.
The Maritime and Commercial Court noted that the contract required Siemens Wind Power to attempt to resolve the dispute through mediation, but Siemens Wind Power was not prevented from filing a lawsuit under the circumstances.
The transport company has failed to show that an employee at the construction site ordered the truck driver to pull the truck away to make room.
The court also wanted a condition report confirming that the road surface leading to the site was in good condition and that the road was properly constructed. On the other hand, the transport company had not proved that faults in the road surface were to blame for the accident.
Based on the submitted photos and damage reports, the court concluded that the cause of the accident and damage to the windmill was that the truck attempted to overtake the other truck, and therefore the truck drove too far to the side of the road. During this process, one wheel of the truck slowly sank into the bed and this ultimately resulted in the windmill falling off the trailer.
Therefore, the transport company took responsibility and was responsible for the loss of Siemens Wind Power.
The fact that Siemens Wind Power had mediated and settled amicably with the other carriers did not exempt Siemens Wind Power from filing a lawsuit in relation to the portion of the costs that was not paid.
It was unequivocally agreed in the written contract between the parties that mediation should be carried out between the parties before either party could bring an action.
Siemens Wind Power has started negotiations in London for an amicable settlement with Abnormal Load Services Ltd. and Mar-Train Heavy Haulage Ltd. accomplished. The success was an amicable settlement for payment of GBP 100,000. But Shipping.dk did not take part in these negotiations and Shipping.dk did not ask Siemens Wind Power to mediate.
Despite the clear wording of the contract, the Maritime and Commercial Court made a point of finding that it was necessary for Siemens Wind Power to bring an action to avoid the statute of limitations.
The above article is written by lawyer Anders Stig Vestergaard.
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