This case concerned the liability of the defendant, Wilson Logistics (Denmark) A/S (Wilson), as a carrier in connection with the loss of two containers during transport from Switzerland via Rotterdam to Sydney. The plaintiff, Codan Forsikring A/S (Codan), asked that Wilson be ordered to pay DKK 1,846,649.33 plus interest, or, in the alternative, the equivalent of AUD 390,412,12 plus interest. Wilson denied liability, or, in the alternative, argued that it was only liable for payment of the equivalent of SDR 89,378 with interest.

With effect from 1 April 2001, Lego System A/S entered into a logistics agreement with Wilson on, among other things, the transportation of Lego products to Asia and Australia. In June 2001, Wilson was asked to arrange a shipment of four containers from Lego's warehouse in Switzerland to its branch in Sydney, Australia. The containers were transported by road from Switzerland to Rotterdam, where they were shipped on 28 June 2001 on the Palliser Bay, chartered by Hapag-Lloyd Container Line GmbH (Hapag-Lloyd), for sea transport to Sydney. The containers were stowed on the open deck, port aft. The ship's stowage manual complied with IMO requirements. During the voyage, the ship ran into severe weather in the Indian Ocean. On 17 July 2001, a number of containers were lost overboard, including two of the Lego containers. The ship's logbook showed that on that day the wind strength was 9-10 on the Beaufort scale from SW to W, 'rolling and pitching heavily with very rough following seas & heavy swells'.

On receipt of the containers, Wilson had issued a bill of lading acknowledging receipt of '4 x 40 STC - 2427 packages'. For the purpose of issuing a bill of lading, Lego prepared packing lists specifying the weight and number of cartons, called a Warenausgang. The packing lists for the two containers show that container HLXU 438804-6 contained 70 pallets, or a total of 1,258 cartons; and container HLXU 426788-8 contained 64 pallets, or a total of 512 cartons. Furthermore, Lego drew up another list of the goods only containing information on the number of pallets and weights. It was the latter which Wilson claimed to have received for the purpose of completing the bill of lading, and it was this information which had been passed on to Hapag-Lloyd.

According to two invoices of 20 and 21 June 2001, the value of the goods was AUD 96,870.40 and AUD 293,541.72, respectively, for a total of AUD 390,412.12. In its claim statement to the cargo insurer Codan, Lego converted the amount to DKK 1,846,649.33, which Codan paid to Lego.

Codan argued that Wilson's liability was regulated by the framework agreement between it and Lego, in which NSAB 2000 had been agreed. As the damage occurred during sea transport, and as the bill of lading was issued in Denmark, the transport was subject to the Hague-Visby Rules. As a carrier, Wilson was therefore responsible for the loss of the two containers, as it happened while they were in Wilson's custody. Pursuant to ss 275 and 276 of the Danish Merchant Shipping Act, which broadly correspond to art 5.1 of the Hamburg Rules, there is a presumption of carrier liability while the goods are in the carrier's custody. According to the master's explanation, the container lashings burst, but no information was available on how the containers were attached. In the event of significant cargo damage, the master should have inspected and reported back, but this had not happened. The weather was predictable for this time of year, with a wind speed of 8-10 on the Beaufort scale, and high, strong waves. The ship therefore had to be prepared for this, and had to secure the cargo accordingly. The master's protest stated a wind strength of 11 Beaufort, but this did not accord with the ship's logbook at the time of the accident. Wilson had not met its burden of proof, and must therefore bear responsibility for the damage.

Pursuant to s 281 of the Danish Merchant Shipping Act, which corresponds to art 4.5.c of the Hague-Visby Rules, the number of units stated in the bill of lading is decisive for quantification of the liability amount. The bill of lading that Wilson issued and sent to Lego listed 2,427 packages. Wilson argued that the bill of lading issued by Hapag-Lloyd was decisive, and that the bill of lading from Wilson was only a receipt. In connection with the enumeration of pallets instead of packages, however, the parties had not discussed the issue of limitation of liability, and the number of pallets had not been used before or since. Furthermore, Wilson asked for information on the number of cartons. Wilson was therefore bound by its own bill of lading, which is why the limitation amount must be calculated on the basis of 2,427 packages.

The Merchant Shipping Act does not state who must bear the risk of a loss in the value of the goods. In this case, where all connecting factors of point to Denmark, the claim for compensation must be calculated in DDK, corresponding to the exchange rate at the time when the goods were to be delivered. It is a coincidence that the price in the invoice was stated in AUD. The loss in reality falls on the Danish company. Wilson had no expectations that the claim would be settled in AUD. Codan has paid Lego in DKK, and will suffer a loss if the claim cannot be stated in DDK.

Wilson argued that is was not responsible for the damage that occurred, due to the fact that there was a very strong storm at the time of the damage, as there was nothing in the ship or engine log to indicate any errors. The information from Cape Town radio indicated nothing about the ship having to face such harsh weather. None of the warnings issued indicate that the wind speed would reach 10 on the Beaufort scale. When the ship met the violent storm, it heeled to port, and both cargo and ship were damaged. It was not possible for the carrier to obtain all the details, but Wilson did what was possible. Wilson also did what was possible to avoid damage. The ship was in class, and the lashing manual met IMO requirements.

It is the content of the bill of lading, together with the accompanying appendices, which is decisive for the amount of the compensation. The carrier must follow the customer's instructions, even if it involves a change from previous practice. It is Lego's own system that is the cause of the 'error'. Lego should therefore not take advantage of this. The bill of lading was not used as a negotiable document, so the relationship with a third party cannot be given weight. There is therefore no basis for going beyond the information in the attachment, as this was the information that Wilson received.

The invoice from Lego, Switzerland, to Lego, Australia, was in AUD. Pursuant to s 279 of the Danish Merchant Shipping Act, which corresponds to s 4.5.b of the Hague-Visby Rules, it is the value of the goods at the place of delivery that is decisive. It is the Australian company that has suffered loss, and the insurance agreement and the channeling of the claim are irrelevant to the carrier's liability. The loss sounds in AUD.

Held: Codan's alternative claim is upheld. Judgment for Codan in the amount of AUD 390,412.12 with interest.

It must be assumed that the wind strength was 9-10 on the Beaufort scale at the relevant time. The information from Cape Town radio was not sufficiently accurate for the area, but did not show a wind strength up to 11, which the master mentions in his protest. There is therefore no basis for assuming that the wind speed was higher than was stated in the ship's logbook, and was no different than expected for that season in the Indian Ocean. Since Wilson's statements about the ship's class and lashing manual is not sufficient to meet its burden of proof (see s 275 of the Merchant Shipping Act), Wilson is therefore found to be responsible for the damage that occurred.

The starting point for the calculation of the liability amount when using a container is the statement in the transport document: see s 281 of the Merchant Shipping Act. The bill of lading issued by Wilson, which was sent to Lego, states 2,427 packages. The contents of the accompanying attachment were not in accordance with this. In the event of a discrepancy between the front of the bill of lading and the attached annex, where the parties have not had a common intention, the bill of lading must be used as the basis for determining compensation. The package limitation amount must then be calculated on the basis of 2,427 units, which exceeds the loss in this case.

Pursuant to s 279 of the Merchant Shipping Act, the compensation must, as a starting point, be calculated according to the value of the goods at the place of delivery. According to the invoice, the goods were traded in AUD, and the loss therefore sounds in AUD. The fact that in this case there are a number of connecting factors to Denmark does not mean that the claim must be converted to DDK.