A Danish insurance company took legal action against a contracting carrier after compensating the consignor. The performing carrier was joined as a third party.

A consignment of sushi shrimps was shipped from Vietnam to Copenhagen. APL Co Pte Ltd (APL) was the contracting carrier while Unifeeder A/S was the performing carrier, performing shipping between Hamburg and Copenhagen. According to the bill of lading the shrimps were to be transported in a refrigerated container with a temperature of -20 ^o Celsius. During the shipping the electricity supply to the refrigerated container failed, which resulted in a temperature change. The shrimps could therefore not be sold to the intended sushi manufacturers. The estimated diminution in value was 20 per cent of the purchase price. It was not proved that any other circumstances other than the power failure was the cause of the temperature change.

According to a survey report the power outage was caused by direct wave impact. The Danish Meteorological Institute had released a gale warning with an expected height of waves at 7 metres and wind speeds at 8-9 on the Beaufort scale. According to the ship’s logbook the wind speed was 9-10 on the Beaufort scale, which was, however, not unexpected considering the weather forecast. 

Held: The Maritime and Commercial Court found that APL was liable for damages corresponding to the diminution in the value of the shrimps.

The Court referred to the Danish Merchant Shipping Act, s 275(1), corresponding to the Hague-Visby Rules, art 4.2.q, according to which the carrier is responsible for loss and damages if the carrier cannot prove that loss and damages are caused without fault or neglect either by the carrier or its agents and servants. Since the master would have put to sea even with a warning of wind speeds at 9-10 at the Beaufort scale, the Court found that APL had not proved that the damage was caused without fault or neglect by APL or anyone for whom they were liable.