The haulage company, Knud Skov Christensen A/S, undertook as a sub-contractor of Frigoscandia A/S (Frigoscandia) to transport a batch of fresh hams, weighing 21,954.1 kg, from the seller, Danish Crown AmbA in Esbjerg, to the English buyer, Roach Foods Ltd, Bodmin, Cornwall. The hams were stored in a refrigerated trailer - at least predominantly - as 'hanging meat', hung on so-called 'Christmas trees'. A CMR consignment note was issued on 11 October 2002. Frigoscandia booked a ferry berth with Norfolkline BV (Norfolkline) for the Dunkirk-Dover crossing. Norfolkline listed the cargo as 'frozen food' in its booking system. The driver did not inform Norfolkline about the stowing of the hams as 'hanging meat', and the ferry company did not ask about this.

The Dawn Merchant sailed from Dunkirk on 14 October 2002 at 01h30. The sailing time was estimated at 1 hour and 30 minutes. Due to the inclement weather forecast, and the fact that it was not a full load, particular care was taken to block stow the cargo. Approximately half the cargo was loaded onto each deck. The refrigerated trailer was stowed on the starboard edge of the block stow. The vessel experienced severe weather conditions during the crossing of the traffic lanes, particularly in the vicinity of the South Goodwin buoy, where the heavy rolling of the ship was exacerbated by the alteration of course to port. It was during this period that the refrigerated trailer tipped onto its side.

As a result of this incident, the veterinary inspector refused to allow further transport to the English recipient, as the cold chain would have been interrupted for so long that the goods would have been unsuitable for human consumption. They were therefore ordered to be destroyed. Codan Forsikring A/S (Codan) paid out under the relevant insurance policy, and was subrogated into the claims against Norfolkline.

Codan argued that the starting point is that Norfolkline was liable for damages: see s 275 of the Merchant Shipping Act, which broadly corresponds to art 5.1 of the Hamburg Rules. It either caused or contributed to the cargo loss. Section 275 of the Merchant Shipping Act is mandatory, and the framework agreement between Frigoscandia and Norfolkline is irrelevant.This agreement cannot be invoked against Knud Skov Christensen A/S, and thus also not against Codan.

Regardless of the fact that the unit was properly equipped with lashing points, it was not lashed during the crossing. It appears from the ship's own Cargo Securing Manual how trucks should be properly secured, and neither the truck nor the trailer was adequately secured. The weather was harsh, but no different than expected. Norfolkline has acknowledged this and cannot therefore invoke unexpectedly bad weather as a basis for discharge. In these circumstances, Norfolkline has clearly neglected to take the necessary precautions with regard to the cargo.

Norfolkline argued that the framework agreement, which undisputedly applied between Frigoscandia and Norfolkline, also applied to the relationship between the sub-contractor, Knud Skov Christensen A/S, and Norfolkline. The rules of maritime law applied within the framework of the transport agreement. In any case, the driver must be considered to have accepted these standard provisions when boarding. It is to be expected that such rules exist. The general provisions in reality correspond to ss 258 and 301 of the Merchant Shipping Act. Both these rules and the framework agreement regulate who bears the risk of damage to cargo.

The loading and stowing carried out by the ship was fully sound, given the information available. Loads with a high centre of gravity must be placed particularly securely - amidships and on deck near the waterline. But Norfolkline lacked the necessary information in this case. The cargo was listed in the booking system as 'frozen food'. Norfolkline could not have guessed that it was 'hanging meat'. There are many hundreds of trailers a week on the crossings. The haulier had an obligation to provide information about special circumstances of the cargo, and it was the haulier's obligation to ensure that the information came to the company's knowledge. Reference is made to Thor Falkanger and Hans Jakob Bull, Introduction to Maritime Law (6th ed) 246-47, and the judgment of the Maritime and Commercial High Court of 15 March 2000 in case H-0644-97 (APV Heat Exchanger A/S).

Held: Judgment for Codan for DKK 650,000 with interest..

It is found that the trailer was recognisable as a reefer trailer to the ferry staff on the Dawn Merchant, and that it is a common experience for ferry companies that meat as a refrigerated item is transported as 'hanging meat', which gives a refrigerated trailer with this load a high centre of gravity. Norfolkline also knew after the conclusion of the co-operation agreement with Frigoscandia in 2000 that Frigoscandia's transports were predominantly refrigerated transports consisting of fresh meat, stowed as 'hanging meat'. It is also found that Norfolkline, in connection with the driver's ticket purchase on 13 October 2002, became aware that this was a Frigoscandia transport.

According to the statements from the ship's crew, the survey reports and the other substantially consistent information in this case, it is assumed that the weather during the crossing was harsh, with gusts of up to 49 knots and that the ship encountered strong waves. The parties agree that these weather conditions essentially corresponded to what could be expected after the weather reports available prior to the ship's departure. It is further assumed that the position on the upper deck where the truck and trailer in question was located during the crossing, not least in the relevant weather conditions, and independent of the trailer's cargo, can therefore in itself give rise to special safety measures. However, it appears that no special safety measures were implemented, but that the truck, which was equipped with lashing points, was block stowed instead. The stowage of the truck was thus insufficient, and was not suitable for protection against accidents of the present nature in all the circumstances.

The framework agreement between Frigoscandia and Norfolkline cannot lead to a different result. Norfolkline is not found to have met the burden of proof in s 275(1) of the Merchant Shipping Act, and is therefore liable for damages. A limited part of the survey costs concerned the securing of evidence, and Codan's claim for damages should therefore be reduced on this point.