On 11 January 2017 Dan-Foam ApS (Dan-Foam) sold a consignment of mattresses to Reykjavik Beds EHF on CIP terms at a price of EUR 41,734.78. Dan-Foam took out insurance on the cargo from IF Skadeforsikring (IF), a branch of IF Skadeförsäkring AB (publ) Sverige. Dan Foam contacted DSV Air & Sea A/S (DSV) in order to arrange the carriage of the mattresses from the production site in Denmark to Iceland. DSV booked five containers from Eimskip Ísland EHF (Eimskip) that were to be loaded on Eimskip’s vessel Godafoss.

On 9 March 2017 DSV issued forwarding instructions to Eimskip, according to which DSV was the consigner and Eimskip the carrier. The containers were to be loaded in Denmark on the same day and to arrive in Iceland on 15 March 2017. On 10 March 2017 Eimskip issued, as carrier, a non-negotiable sea waybill concerning the carriage of four containers from Denmark to Iceland. According to the sea waybill the containers were to be transported with the vessel Ice Star. DSV was listed as consignor. An undated combined transport sea waybill was issued by DSV on behalf of DSV Ocean Transport A/S (DSV Ocean Transport) as carrier and Dan-Foam as consignor.

On 15 March 2017 Eimskip informed DSV that one of the containers had been lost during the carriage due to bad weather in the north Atlantic. Due to the loss of the container, IF paid out insurance on 31 May 2017 to Dan-Foam. The insurance amounted to DKK 210,252.18 (the sale price of the goods, less a deducted excess of DKK 100,000).

IF commenced legal action against DSV, DSV Ocean Transport and Eimskip and claimed that they were jointly and severally liable for an amount of DKK 310,252.18 (IF collected the excess on behalf of Dan-Foam). In the alternative, IF claimed that they were severally liable. DSV, DSV Ocean Transport and Eimskip denied liability.

Held:

Carrier’s liability

The Court found that both DSV and DSV Ocean Transport had undertaken the carriage of the mattresses and that they would be liable for the loss of the goods pursuant to s 275 of the Danish Merchant Shipping Act unless they could prove that the loss was not caused by any fault or neglect. Section 275 corresponds with art 4.2.q of the Hague-Visby Rules, according to which the carrier is responsible for damage to the goods while they are in its custody, if the carrier cannot prove that damage is caused without fault or neglect either by the carrier or its agents and servants.

The Court found that even though DSV and DSV Ocean Transport had alleged that the container fell overboard due to bad weather, they had not presented any evidence of the weather conditions. Due to this, DSV and DSV Ocean Transport had not proven that they were not liable for the loss of the container. The Court found that they were jointly and severally liable for the entire claim of DKK 310,252.18.

Concerning IF’s claim against Eimskip, the Court found that it was time-barred as the parties had not agreed on a suspension of the limitation period.

DSV and Eimskip

The Court found that DSV had entered into an agreement with Eimskip, according to which Eimskip was the performing carrier. Because the mattresses were in the custody of Eimskip when they were lost, Eimskip was liable for the loss against DSV.

As to the quantum of the claim, Eimskip referred to its own non-negotiable sea waybill according to which the containers each contained '1 x lot of bedding articles' and the containers together had a total weight of 10,824 kg. Eimskip argued that its liability should thus be limited to 667 SDRs. However, according to the forwarding instructions and the customs clearance documents that DSV had issued to Eimskip, the containers each contained 96 packages with a total weight per container of 2,879.6 kg.

Because the forwarding instructions and the customs clearance documents were sent to Eimskip before it issued its non-negotiable sea waybill, the Court found that the parties’ agreement concerning the 96 packages was in accordance with the forwarding instructions. In its decision, the Court took into account the fact that Eimskip had not sent the sea waybill to DSV. DSV therefore had no chance of raising any objections as to the number of packages and the weight listed in the document. As a consequence, the quantum of the claim for the loss of the container was calculated based on 96 packages.

DSV Ocean Transport and Eimskip

The Court found that there was no agreement between DSV Ocean Transport and Eimskip regarding the carriage concerned. Due to this, Eimskip should not indemnify DSV Ocean Transport for the claim brought against it by IF.