A Danish insurance company, Transurance Codan Forsikring A/S (Transurance Codan), initiated legal proceedings against a contracting carrier, Martin Bencher (Scandinavia) A/S (Martin Bencher), and contracting and performing carriers Flinterstar BV and Flinterstar II regarding loss and damage to goods caused during shipment from Poland to Venezuela. Transurance Codan had subrogated to the claim of the consignor, Novatech A/S (Novatech).

Flinterstar II was transporting trailers from Hamburg to Venezuela when 8 trailers swept overboard and the remaining 14 trailers were affected by saltwater or otherwise damaged. The accident was caused by a combination of rough weather at the Northern Atlantic Ocean and insufficient lashing of the goods. Wind speeds at 9-10 at the Beaufort Scale were, however, not unusual or unexpected considering the time of year.

According to the booking note between Martin Bencher and Flinterstar II the goods were suitable for stowing on deck. This was also confirmed in the booking note between Martin Bencher and Novatech. Novatech had asked Martin Bencher for help regarding cargo insurance, and in accordance with the arrangement with Martin Bencher, Transurance Codan therefore offered Novatech cargo insurance. However, according to the insurance offer, the goods were to be shipped with break bulk below deck.

Held: Due to these circumstances, the Maritime and Commercial High Court found that Martin Bencher had not proven that loss and damage of the goods was not caused by them or anyone for whom they were liable. The Court referred to the Danish Merchant Shipping Act, s 275(1), corresponding with the Hague-Visby Rules, art 4.2.q, according to which the carrier is responsible for loss or damage if the carrier cannot prove that loss or damage was not caused by the fault or neglect of either the carrier or its agents and servants.

It was assumed that Transurance Codan would not have provided the insurance if it knew that the goods were transported on deck and not with break bulk below deck. Transurance Codan was, nonetheless, obliged to pay out under the insurance policy to Novatech. Since it was Martin Bencher’s responsibility that Transurance Codan was given the correct information about the circumstances of the carriage, Martin Bencher was obliged to compensate Transurance Codan for its loss.

In respect of the relationship between Martin Bencher and Flinterstar BV and Flinterstar II, Flinterstar BV and Flinterstar II were obliged in turn to indemnify Martin Bencher for the loss and damage of the goods.