This case concerned liability for the loss of a 40-foot container loaded with DKK 8.2 million worth of cigarettes during door-to-door transport from Vallensbæk, Denmark, to Vilnius, Lithuania. The cargo was sold by House of Prince A/S, Vallensbæk, to House of Prince Lietuva, Vilnius, Lithuania. Tryg-Baltica Forsikring A/S (T-B) paid compensation to House of Prince A/S under its insurance policy and claimed against the contracting carrier, Wilson Freight Systems A / S (Wilson). Wilson filed recourse claims against J Henningsen A/S (JH).

T-B argued that the legal basis between House of Prince A/S and Wilson was the agreement of 11 February 1998, which referred to NSAB 2000. The booking confirmation of 10 June 1998 also referred to this, and so did the later invoice. Wilson could not unilaterally change this agreed legal basis in relation to House of Prince A/S, and thus T-B, by issuing a bill of lading with deviating terms one week after the taking into custody of the goods, which had not been the subject of negotiation between the parties. Wilson was therefore responsible for the loss of the goods during the agreed door-to-door transport in accordance with the rule in NSAB 2000 § 15, as the goods were lost before they were delivered to their destination in Vilnius. Under this provision, Wilson was objectively responsible for the loss of the goods, whether the loss was the result of theft or was due to delivery of the goods to persons who were not in possession of the correct transport documents. Wilson had not demonstrated that the loss of the cargo was due to circumstances for which Wilson or anyone for whom Wilson was liable was not responsible. The claim against Wilson was not time-barred, and was lower than the agreed limitation of liability: see NSAB 2000 § 30 and § 22, respectively.

Should the Court conclude that it was the bill of lading that determined the legal basis between House of Prince A/S and Wilson, Wilson was also responsible for the loss of the goods, as Wilson had not proved that there were grounds for exemption from liability. In particular, Wilson had not proved an agreement that the goods in the unloading port in Klaipeda were to be handed over to Klasco AB with a view to handing them over for further transport or customs clearance, so that Wilson was thus not responsible for the goods after handing them over: see s 274(3)(iii) of the Merchant Shipping Act, which is modelled on art 4.2 of the Hamburg Rules. Wilson has done nothing to shed light on what has become of the valuable cargo.

Wilson argued that a multimodal transport agreement was reached between House of Prince A/S and Wilson, and that the legal relationship between those parties was subject to the provisions of Wilson's combined bill of lading. It thus follows that NSAB 2000 did not apply unless otherwise agreed in the multimodal transport document. The claim against Wilson was therefore time-barred according to the bill of lading clause, as the limitation period expired on 28 March 1999, and the action was not brought until 18 June 1999. If the limitation period had not elapsed, in the alternative, Wilson's liability would also be limited under the bill of lading to 2 SDRs per kg of gross weight, or a total of 26,240 SDRs.

Should the Court find that the Merchant Shipping Act applies to the matter, JH was responsible for the loss of the cargo according to s 275 of the Merchant Shipping Act, which is broadly comparable to art 5.1 of the Hamburg Rules, and must pay full compensation, as package limitation was not available under the Merchant Shipping Act: see ss 280 and 281, which correspond to arts 4.5.a and 4.5.c of the Hague-Visby Rules. Wilson's recourse claim against JH was not time-barred: see s 501(2) of the Merchant Shipping Act, which corresponds to art 3.6 bis of the Hague-Visby Rules.

JH argued that the matter should be heard in London according to the jurisdiction clause in the bill of lading issued by Kursiu Linija in connection with the transport. JH was entitled to invoke this jurisdiction clause pursuant to the bill's Himalaya clause. JH was not a carrier in relation to Wilson, but acted solely as an agent for Kursiu Linija, and it was therefore the bill of lading issued by Kursiu Linija that determined the legal relationship between Wilson and JH. Should the Court find that the Merchant Shipping Act is to be applied to the matter, JH was not responsible for the loss of the cargo, as the cargo was handed over to Klasco AB, which was the appropriate authority: see s 274(3)(iii) of the Merchant Shipping Act, which is modelled on art 4.2 of the Hamburg Rules.

Held: Judgment against Wilson in favour of T-B for DKK 846,197.47 plus interest. JH must indemnify Wilson for the same amount.

An agreement on tobacco transport was concluded between House of Prince A/S and Wilson on 24 February 1998, which regulated Wilson's liability by referring to NSAB 2000, and which limited Wilson's liability for customs duties, taxes, duties etc. The agreement replaced an earlier agreement which had been renegotiated for tax liability reasons. The Court therefore finds that Wilson's liability must be assessed in accordance with NSAB 2000. Wilson's booking confirmation of 10 June 1998 also refers to NSAB 2000 liability. On 24 June 1998 - six days after the commencement of the transport and without prior negotiation with House of Prince A/S, Wilson could not issue a bill of lading unilaterally to change the agreement entered into with House of Prince A/S.

Pursuant to NSAB 2000 § 15, the freight forwarder is responsible for loss of the goods, which occurs in the time from the takeover of the goods until their delivery at the place of destination. The cargo was lost in Klaipeda and was thus not delivered to its destination in Vilnius. Wilson has not met the burden of proof that one of the grounds for exemption from liability in NSAB 2000 § 16 is present.

JH's claim for inadmissibility has been submitted too late and can for this reason alone not be upheld. The same follows from the principle in the s 310(1)(i) of the Merchant Shipping Act, which corresponds to art 21.1.a of the Hamburg Rules, as JH is domiciled in Denmark. JH entered into an agreement with Wilson for the transport of the goods quay Copenhagen-door Vilnius in its own name and at a fixed price per container, without making it clear that JH was only an agent or intermediary and did not assume responsibility as a carrier. In relation to Wilson, JH is therefore responsible as carrier.

The Court finds that the goods in the relationship between Wilson and JH must be considered lost during a general cargo transport: see s 274(1) and (2) of the Merchant Shipping Act, which corresponds broadly to art 4.1 of the Hamburg Rules. JH has not proved that applicable laws or regulations in the port of unloading prescribed that the goods should be handed over to Klasco AB: see s 274(3)(iii) of the Merchant Shipping Act, which is modelled on art 4.2 of the Hamburg Rules.

JH is therefore responsible for the loss pursuant to s 275 of the Merchant Shipping Act, which is broadly comparable to art 5.1 of the Hamburg Rules, as JH has not proven that the loss was not due to the fault or negligence on the part of JH or anyone for whom JH is legally answerable.

As the amount of compensation does not exceed the limits in s 280 of the Maritime Act, which corresponds to art 4.5.a of the Hague-Visby Rules, Wilson's claim against JH is hereby upheld in full.