This case involved damage to toys transported from the PRC to Denmark. The main issues were whether the contracting carrier, 3P Logistics A/S (3P), was liable for the damage, and whether the performing carrier, Shipco Transport Denmark A/S (Shipco), was required to indemnify 3P for any amount that 3P was obligated to pay to Tokio Marine Europe SA (Tokio), the insurer of the goods.

Maileg ApS (Maileg) is a Danish company that sells and designs toys. On 9 July 2021, Maileg entered into an agreement with a Chinese distributor and exporter of toys, Jiangsu Sunshine Dongsheng Import & Export Co Ltd, to purchase a batch of teddy bears for a total price of USD 51,702.18. Subsequently, Maileg entered into an agreement with 3P, under which 3P would handle the transportation of the goods from the PRC to Denmark. It was undisputed between Maileg and 3P that the Nordic Association of Freight Forwarders' General Terms and Conditions 2000 (NSAB 2000) applied to their agreement.

3P arranged for the transportation and used Shipco as the performing carrier. 3P and Shipco disagreed on whether the Nordic Association of Freight Forwarders' General Terms and Conditions 2015 (NSAB 2015) applied to their agreement. The transportation of the goods consisted of sea transport from Shanghai to Aarhus, and road transport from Aarhus to Herning. On 27 September 2021, the goods were loaded onto a ship in Shanghai. Neither of the two bills of lading issued by 3P's agent and Shipco's agent contained reservations for damage to the goods during loading.

On 24 November 2021, the goods were delivered to a subcontractor for 3P, DKI Logistics A/S (DKI). DKI was responsible for unloading the container, palletising the goods, and delivering them to Maileg. DKI informed Shipco that the goods were damaged by water. When Maileg received the goods on 26 November 2021, a Maileg warehouse worker found that the goods had been subjected to water damage.

On 15 December 2021, Dan Inspection ApS (Dan) conducted an inspection of the goods. The inspection report concluded that the damage had occurred during transport, and that there was no possibility of mitigating the damage.

Tokio was subrogated into Maileg's claim for compensation, claiming payment from 3P for the value of the goods (USD 51,702.18) and transportation costs of DKK 47,249.39, plus interest from 17 April 2022.

3P argued that Maileg had breached its duty to mitigate damage by not unpacking the goods between receipt and Dan's inspection. Furthermore, 3P claimed that it was covered by the liability limitation in s 22 of NSAB 2000, whereby the forwarder's liability is limited to 8.33 SDRs per kg of the gross weight of the damaged part of the goods. Furthermore, 3P claimed that Shipco, as the performing carrier, should indemnify 3P for any amount that 3P might be ordered to pay to Tokio.

Held: Judgment in favor of Tokio. Shipco must indemnify 3P.

According to s 280(1) of the Danish Merchant Shipping Act [art 4.5.a of the Hague-Visby Rules] the carrier shall not be liable for more than 667 SDRs for each package or unit of the goods, or 2 SDRs per kg gross weight of the goods lost, damaged, or delayed, whichever is the higher amount. Under the issued bills of lading, the goods consisted of 213 cartons, and thus 213 packages. On this basis, the Court found that 3P's liability was limited to 142,071 SDRs. As the value of the goods was lower than 142,071 SDRs, the Court did not find grounds to limit either the performing carrier's or the contracting carrier’s liability.

3P, as the contracting carrier, was liable for the damage incurred under s 15 of NSAB 2000. It was not possible to mitigate the damage by unpacking, cleaning, or selling off the goods, as the goods were a total loss upon receipt. Maileg had thus fulfilled its duty to mitigate its loss.

The Court also found that because no reservations had been made for the damage during the loading of the goods in the PRC, because the pictures of the cargo before transportation showed no signs of damage, and because the water damage was discovered first by DKI and later by Maileg on 26 November 2021, the damage must have occurred during the sea transport, and therefore according to the network clause under s 23 of NSAB 2000, the rules of the Danish Merchant Shipping Act on limitation of liability applied. In this context, the Court found that it was not decisive that the inspection was conducted three weeks after receipt.

Regarding the case between 3P and Shipco, the Court found that NSAB 2015 had been adopted between these parties, and that the standard terms on the reverse of the bill of lading issued by Shipco's agent in China did not apply. The Court also found that because the damage occurred during the sea transport while the goods were in Shipco's custody, Shipco was liable for the damage to the goods under s 15 of NSAB 2015. Further, the Court found that the limitation of liability rules under the Danish Merchant Shipping Act applied by virtue of the network clause under s 2 of NSAB 2015. On this basis, Shipco was ordered to indemnify 3P for the amount that 3P was ordered to pay to Tokio.