The carrier was held responsible for the damage to the goods
A carrier was ordered to pay the insurance company approximately $1,300,000. The background was that while driving in bad weather in the North Atlantic, eight trailers were washed overboard. Eight trailers were totaled and 14 trailers were partially affected by salt water and partially damaged.
The Novatech company sold 30 trailers to a buyer in Venezuela and CIF was agreed as the delivery terms. The seller had taken on the responsibility for transport and insurance, and he made an agreement with a carrier whereby the carrier would arrange for the shipment from Poland to Venezuela. The carrier made an agreement with a shipping company, Flinterstar II, and this agreed with the shipping company Flinterstar BV that they should ship the trailers from Hamburg to Venzuela.
The insurance company sent an offer that the trailers would be transported by truck from Poland to Hamburg. From there they were to be shipped to Venezuela with break bulk (below deck).
The carrier had accepted the insurance company’s offer. He subsequently issued two bills of lading and no deck cargo was listed in these Bills of Ladings, as shown below:
“It is further agreed that the good/containers may be stowed on deck without notice pursuant to Clause 11 on the reverse side of this Bill of Lading.”
In the standard conditions, the carrier was entitled to choose whether to transport the goods on or below deck.
In this case, the goods and the attachment were checked regularly during the journey. In the North Atlantic there was bad weather with winds up to 9-10 Beaufort, and the ship had to change course and reduce speed.
Despite this, eight trailers were washed overboard. Eight trailers were totaled and 14 trailers were partially affected by salt water and partially damaged.
Subsequently, the insurance company satisfied the recipient’s claim and the insurance company was thereafter entitled to pursue a claim for damages in court.
The dispute is about the extent to which the insurance company of the goods could assert a claim against the carrier and/or the shipping companies.
In addition, the court should decide whether jurisdiction is at the Maritime and Commercial Court in Denmark for Flinterstar BV and Flinterstar II. The companies are based in the Netherlands and they requested that the place of jurisdiction be in the Netherlands.
Referring to the fact that the carrier is based in Denmark, the claim against the defendant is the same and that the claim is based on the same legal basis, the court decided that the Maritime and Commercial Court in Denmark is the correct place of jurisdiction.
There is a 30-60% chance of strong winds (9-10 Beaufort) in December in the North Atlantic that the shipping company should have taken into account. The bad weather was not unusual and therefore does not cause a release from liability.
According to a survey report, the fastening of the trailers was insufficient and insufficient.
Under these circumstances, the carrier had failed to prove that he was not responsible for the damage. Therefore, following the plaintiff’s claim, he was ordered to pay the insurance company $1,300,000 plus costs.
The Maritime and Commercial Court also ruled that the shipping companies Flinterstar BV and Flinterstar II should indemnify the carrier for his payment to the insurance company.
The above article is written by lawyer Anders Stig Vestergaard.
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