Windahl Sandroos & Co updates

Maritime and Commercial High Court interprets definition of 'visible damage'
Windahl Sandroos & Co
  • Shipping & Transport
  • Denmark
  • November 29 2017

A recent Maritime and Commercial High Court decision concerning the carriage of a consignment of different types of medical product found that smoke contamination constituted visible damage under the Carriage of Goods by Road Act. The decision underlines the importance of inserting reservations into waybills when a consignee has reasonable grounds for doing so and illustrates the dire consequences of failing to do so.

Significant Supreme Court decision considers choice of law principles applicable to direct action claims
Windahl Sandroos & Co
  • Shipping & Transport
  • Denmark
  • November 08 2017

The Supreme Court was recently tasked with deciding the law applicable to direct action claims. The decision is noteworthy, as the court analysed the choice of law question of direct action independently from the choice of law principles relating to the contract of insurance and lex loci delicti. The wording of the Supreme Court's decision suggests that the choice of law analysis applied only in respect of the question of direct action.

Marine engine subcontractor not liable towards shipowner under product liability law
Windahl Sandroos & Co
  • Shipping & Transport
  • Denmark
  • October 04 2017

The Supreme Court recently passed down its decision in a product liability appeal case between a manufacturer of marine engines and a Danish shipowner. The pivotal question before the court was the distinction between damage to the defective product itself, which was not compensable under product liability law, and other property, which was compensable.

Jurisdiction clause agreed by insurer and insured does not bind injured party claiming directly against insurer
Windahl Sandroos & Co
  • Shipping & Transport
  • Denmark
  • September 06 2017

The Port of Assens recently brought legal proceedings before the Danish Maritime and Commercial Court against the insurer of a Swedish carrier for damages caused by a chartered tugboat. The judgment was appealed to the Danish Supreme Court, which requested a decision from the European Court of Justice (ECJ). The ECJ found that a jurisdiction clause agreed between an insurer and an insured does not bind an injured party claiming directly against the insured.

Court finds that leaving trailer for two days at petrol station does not constitute gross negligence
Windahl Sandroos & Co
  • Shipping & Transport
  • Denmark
  • August 09 2017

The Maritime and Commercial Court recently examined a claim of gross negligence by a Danish trading house against a Danish carrier following the theft of clothing from a trailer that had been left unprotected at a petrol station for two days. The court found that gross negligence exists in the case of theft from an unprotected trailer only if the carrier has been instructed that special precautions must be followed to avoid theft and it fails to follow such measures.

Court decides that towage company entitled to mobilisation costs covered by another contractor
Windahl Sandroos & Co
  • Shipping & Transport
  • Denmark
  • June 21 2017

A recent Maritime and Commercial Court decision considered whether a charter agreement could be interpreted to the effect that the charterer's liability to pay mobilisation and demobilisation costs should be unenforceable if these costs were covered by another charterer.

Question of jurisdiction for claim against carrier under Brussels I Regulation
Windahl Sandroos & Co
  • Shipping & Transport
  • Denmark
  • June 14 2017

In a recent Maritime and Commercial Court case, the cargo insurer of a Danish seller claimed that the court had jurisdiction to hear the proceedings that it had brought against a Dutch terminal and a Danish carrier following a lost food consignment pursuant to Article 8(1) of the Brussels I Regulation. However, the court found that Article 8(1) could not establish jurisdiction for the cargo insurer's claims against the terminal and the carrier.

Risk of damage amounting to total loss
Windahl Sandroos & Co
  • Shipping & Transport
  • Denmark
  • March 22 2017

A recent Maritime and Commercial Court decision illustrates that a report obtained from a reliable third party can have a conclusive effect when examining the extent of damages. The decision also illustrates that failure to comply with public regulations when storing goods may constitute damage amounting to a total loss when there has been a possibility of the goods being damaged or contaminated, regardless of whether it has been demonstrated that the goods have been affected.

Court finds that Danish bill of lading terms prevail over common German conditions of freight forwarding
Windahl Sandroos & Co
  • Shipping & Transport
  • Denmark
  • February 15 2017

A recent Copenhagen Maritime and Commercial High Court case examined a situation in which both parties, immediately before the formation of a contract, referred to their own standard terms and conditions. This is commonly known as the 'battle of the forms'. The case illustrates the problem which arises when contracting parties, while focusing on issues essential to a specific deal, are less conscious of questions such as the choice of venue for resolving disputes.

Contract on unloading of cargo governed by some, but not all, CMR sections
Windahl Sandroos & Co
  • Shipping & Transport
  • Denmark
  • February 01 2017

Pursuant to a recent Maritime and Commercial Court judgment, when works excluded from the scope of the Convention on the Contract for the International Carriage of Goods by Road (CMR) are performed subject to the CMR as a contract term, either reference should be made to the CMR as a whole, or all relevant clauses of the CMR which are to govern the contract should specifically be incorporated by reference.

Supreme Court asks ECJ whether jurisdiction clause binds third-party proceedings against P&I insurer
Windahl Sandroos & Co
  • Shipping & Transport
  • Denmark
  • December 07 2016

The Supreme Court recently requested guidance from the European Court of Justice on whether an injured party which, under national law, may bring proceedings directly against the liability insurers of the liable party is, under EU law, bound by the jurisdiction clause of the policy between the insurer and policyholder. The request follows an appeal by a Danish port for liability claims against Lloyd's of London.

Imminent risk of theft: court finds carrier liable for gross negligence
Windahl Sandroos & Co
  • Shipping & Transport
  • Denmark
  • November 02 2016

A recent Maritime and Commercial Court decision suggests that carriers can – regardless of any special instructions – adopt a minimum safety standard, and that gross negligence occurs when this standard is not met. Previously, gross negligence existed only if a carrier ought to have known the nature of the products carried and failed to take relevant safety measures, irrespective of any special instructions from the shipper.

Court finds carrier liable for theft after it fails to warn against use of tarpaulin trailers
Windahl Sandroos & Co
  • Shipping & Transport
  • Denmark
  • July 27 2016

The Maritime and Commercial Court recently found a freight forwarder liable for losses caused by the theft of tobacco products that were stolen from its tarpaulin trailers during delivery. The judgment is interesting as the court did not attach any importance to the fact that the manufacturer had chosen the cheaper trailer when deciding the question of liability, as it found that the forwarder had failed to warn against the use of tarpaulin trailers.

CMR delivery deemed complete despite consignment being rejected
Windahl Sandroos & Co
  • Shipping & Transport
  • Denmark
  • May 04 2016

A recent Maritime and Commercial Court case examined the important and recurring question of when delivery under the Convention on the Contract for the International Carriage of Goods by Road has been completed. The court found that where the carrier arrives at the agreed time and submits the correct documents to the consignee then delivery can be deemed to have taken place, even if the consignment has been rejected.

Court allows direct claim against subcontracted carrier despite Dutch jurisdiction clause
Windahl Sandroos & Co
  • Shipping & Transport
  • Denmark
  • March 09 2016

The Maritime and Commercial Court recently decided that a contracting carrier's recourse claim against a Dutch ship owner – subcontracted to transport cargo damaged during a voyage – could be heard in Denmark pursuant to Article 8(2) of the Brussels I Regulation, despite the fact that under the liner booking note, all disputes arising in relation to the carriage should be decided in the Netherlands in accordance with Dutch law.

Mol Comfort – effect of global limitation fund on legal proceedings in Denmark
Windahl Sandroos & Co
  • Shipping & Transport
  • Denmark
  • March 02 2016

Following the loss of a vessel carrying containers from Vietnam to Denmark, its operators established a global limitation fund before the Tokyo District Court. The container owner subsequently began legal proceedings against the contracted and subcontracted carriers before the Danish Maritime and Commercial Court. The court ruled that the limitation fund did not affect legal proceedings against the two parties in Denmark.

First Danish judgment on carrier liability regarding Mol Comfort incident
Windahl Sandroos & Co
  • Shipping & Transport
  • Denmark
  • February 24 2016

The Maritime and Commercial Court recently rendered the first Danish decision on the issue of liability in the Mol Comfort incident. The decision is in line with Danish case law as it imposes on the carrier the burden of proof that a casualty – even one which resulted in the loss of an entire vessel and its containers – was not caused wholly or partially by any errors or omissions by any party for which the carrier was responsible.

No proof of damage during transport irrespective of CMR consignment note
Windahl Sandroos & Co
  • Shipping & Transport
  • Denmark
  • November 18 2015

A seller recently submitted a claim against two carriers for damage caused to two steel tanks during carriage, arguing that as no reservations regarding the condition of the tanks had been inserted in the consignment note, it should be presumed that the damage had been caused while the tanks were in the custody of the carriers. However, the court found the carriers free of any liability, as it had not been proven that the damage had been caused during carriage.

Contract on terms of loading not inclusive of damage caused during unloading
Windahl Sandroos & Co
  • Shipping & Transport
  • Denmark
  • September 16 2015

A wind turbine manufacturer contracted a logistics services provider for the transport of wind turbine blades to a port terminal, which was the provider's usual subcontractor. Two blades were damaged while under the care of the terminal. The Maritime and Commercial Court found that the logistics services provider was not liable for the damage as the blades were not in its custody when damaged.

Shipyard not liable for engine room fire caused by oil leakage
Windahl Sandroos & Co
  • Shipping & Transport
  • Denmark
  • July 08 2015

A recent Maritime and Commercial Court decision found that a shipyard was not liable for fires in the engine room of a vessel that it had repaired. The parties had agreed that the shipyard would be liable for damages caused to the vessel due to negligence on the part of the shipyard. However, the vessel owner failed to establish the source of the fires or prove the shipyard's negligence.

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