The transport company was responsible and liable for damages, but was acquitted anyway

In particular, the litigation concerns whether the damage occurred during transport from Denmark to Switzerland, as well as responsibility/liability and compensation.

The process

The Swiss company ordered a specially made machine from Twin Seam Company ApS in Denmark at a purchase price of EUR 298,500.

The manufacturer in Denmark hired DSV for the transport, and DSV delegated the transport to the transport company Monolit.

The driver picked up the machine on May 22, signing a delivery note stating that the goods consisted of 11 parts and weighed 9,100 kg.

On May 26, the truck arrived at the buyer in Switzerland. Several photos were taken of the goods upon arrival. The photos showed that part of the machine had fallen over and that the ropes securing the machines were loose.

This was criticized in an e-mail dated May 28, and an inspection was then carried out on June 2.

The surveyor’s report said the following:

In the opinion of the attending surveyor the cargo securing can be considered insufficient for the conducted transport by truck.27.706.02.

In the opinion of the surveyor, the ascertained damages to the goods were caused during the transport by insufficiency of load securing on truck to Switzerland.

The claims of the plaintiff and the defendant

The plaintiff claimed that the machine was damaged during transport.

Regarding the limitation of liability, the damage in transit had affected the overall functioning of the machine and the limitation amount should therefore be calculated in relation to the total weight of the machine.

The defendant claimed that the plaintiff did not complain in good time and that he had not received any special instructions regarding collection, loading and securing.

The Judgment of the Danish Maritime and Commercial Court

The Maritime and Commercial Court assumes that the recipient in Switzerland complained to DSV by telephone on the same day and that he confirmed the complaint in writing two days later. Against this background, the court concluded that it is proven that the damage occurred during transport.

Based on the explanations, the court assumed that the driver of the transport company had “lashed down” the machine parts.

Against this background, DSV had not proven the circumstances that led to the discharge of a liability exemption according to the contract of carriage in international road transport / CMR and therefore the carrier was responsible for the damage according to CMR 24, paragraph . 1. responsible.

The court considered it proven that the damage suffered could be calculated at EUR 27,706.

After the evidence was taken, it was assumed that the machine was broken into several pieces, and it was one of those pieces that overturned, damaging several pieces. These could be repaired without much trouble. Thus the whole machine was not totally damaged. The court had therefore held that the International Road Freight Transport/CMR limitation of liability should be calculated on the basis of the weight of the damaged parts and not on the basis of the total weight of the machine.

However, the plaintiff had not reported the weight of the individual parts and therefore the plaintiff had not demonstrated the amount by which the defendant should compensate the plaintiff for the loss.

The Maritime and Commercial Court had to acquit the defendant despite the established liability.

The plaintiff was ordered to pay the defendant the costs of the litigation and the costs of the interpreter, etc.

Remarks

In this case, it became clear once again how important it is to present the correct and sufficient proof.

The plaintiff had not fulfilled his burden of proof and therefore the transport company was acquitted, although it was responsible and liable to pay compensation.

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