The plaintiffs, Zürich Cosmos Versicherungen AG (ZC) and Liebherr-Werk Nenzing GmbH (LW), claimed that the defendants, Thor Amalie K/S, and Komplementarselskabet af 22 November 1997 A/S (K), should be jointly and severally ordered to pay ZC ATS 6,028,558 and LW ATS 1,201,151.54 plus interest

LW was an Austrian company manufacturing cranes. LW sold two cranes to Port Tobacco, USA. In a telefax dated 26 November 1998 to LW from Rohde & Liesenfeld, a transport company acting as agents for LW, confirmed the booking of the Thor Amalie for maritime transport. It stated:

COLLI NO. 3-5 DECKS-OPTION / REMNANTS UNDER DECK, DECK CARGO AT MERCHANTS RISK AND EXPENSES WITHOUT LIABILITY TO CARRIERS FOR LOSS OR DAMAGE HOWSOEVER WHATSOEVER AND BLADINGS TO BE CLAUSED ACCORDINGLY ...

Conline B / N - SUB EVENTUAL FURTHER DETAILS

The cranes were loaded on 22 December 1998 on the Thor Amalie. The two crane towers were placed on the deck on the starboard and port sides respectively. On the crane towers, LW had mounted support in front and behind, on which the crane towers rested. Furthermore, the cylinder arm of the crane towers was bolted to the crane towers with a 'shoe' in a 'shoulder'. The bill of lading contained the following jurisdiction and choice of law clause: 'Any dispute arising under this Bill of Lading shall be decided in the country where the carrier has its principal place of business, and the law of such country shall apply except as provided elsewhere herein.' In the North Atlantic, the ship ran into severe weather and the cranes were damaged.

ZC and LW argued, among other things, that the defendants were liable for the damage to the deck cargo, as insufficient lashing had been carried out. The weather was bad, but no worse than to be expected in the North Atlantic for the season. The crane towers could move on deck. They should have been fixed to the deck. Furthermore, lashing brackets were missing, so the lashing could not be optimal. It was no error that the supports could only hold the vertical weight of the cranes, as the horizontal forces had to be carried by the lashings. It must be assumed that the suspension of the crane arm was sufficiently strong under normal force, but that the bolts on the tower could not withstand the extra load caused by the tower moving back and forth. The defendants had the burden of proving that the cargo damage was not due to their errors or negligence: see s 275(1) of the Maritime Act, which broadly corresponds to art 5.1 of the Hamburg Rules. There was no evidence that the damage was due to the bolts not being sufficiently tightened, or that the bolts were not strong enough to hold the arm.

According to cl 3 of the transport agreement of 22 December 1998, Danish law must be applied, and the case has rightly been brought in Denmark. Thus, the transport agreement stipulates that provisions based on law in a Contracting State (ie a Hague-Visby Rules signatory) shall apply: see s 252(2)(v) of the Maritime Act. The goods were loaded in Belgium, which is a Convention State, which is why the Maritime Act, s 252(2)(v) applies. The provisions on transport liability are therefore mandatory: see s 254(1) of the Maritime Act, which corresponds broadly to art 3.8 of the Hague-Visby Rules, and provides:

Any provision in a contract of carriage or a transport document shall be void to the extent it derogates from the provisions of this part as well as the part regarding limitation of actions, cf. however, subsection 2. That such a provision is void shall not affect the validity of the other provisions of the contract or document. A provision entitling the carrier to the benefit of insurance regarding the goods or any similar contract shall be void.

It was therefore not possible for the defendants to abdicate responsibility for the deck cargo. Furthermore, the transport agreement of 22 December 1998 did not contain any deck cargo clause. There are no signature requirements for the transport agreement, which is why the agreement is valid between the parties. It is irrelevant what appears from the other documents, including the telefax of 26 November 1998 from Rohde & Liesenfeld, as these documents do not constitute the transport agreement, and as the Maritime Act is mandatorily applicable. Nor has a choice of law rule been agreed: see s 252(3) of the Maritime Act, which causes the agreement to be governed by the law of another Contracting State.

The defendants argued, among other things, that the contractual basis was the telefax of 26 November 1998 from Rohde & Liesenfeld and a liner booking note of 2 December 1998. It appeared from both of these documents that the crane towers could be transported as deck cargo, and that the carrier was not responsible for this, and that this should appear in the bill of lading. The document of 22 December 1998 was only a receipt of how many goods were received, and was not issued signed. The paramount clause in the liner booking note of 2 December 1998 meant that the Hague-Visby Rules must apply, and according to these it is possible to disclaim liability for deck cargo. If there was to be responsibility for deck cargo, the freight rate would have been higher. The subsequent bill of lading cannot be relied upon. During transport, completely unusual bad weather occurred. Before departure, adequate lashing of the deck cargo had been carried out, regardless of the damage that had occurred.

Held: Judgment for ZC for ATS 5,378,558 with interest. LW's claim is dismissed.

In November 1998, the booking was confirmed by the Thor Amalie, and on December 2, a booking note was issued. Both of these documents contained a disclaimer for deck cargo. Following the preparation of these documents, a bill of lading was issued in which the disclaimer was not repeated. This document was created directly between the parties to the case and was the most recently issued. As there is no requirement for a signature on the bill of lading, and as the question of the bill's receipt function in relation to transport damage is irrelevant, the bill of lading is found to have to be regarded as the parties' final transport agreement. It follows that Danish law applies, which is why the defendants cannot abdicate their responsibility for deck cargo.

According to information from the Meteorological Institute, the weather was not unusually harsh for the season, except that the low pressures came a little faster in a row than usual. According to the information in the logbook and the explanations given, there is no basis for blaming the master for the way in which the ship was navigated. It must be considered proven that the deck cargo moved in both horizontal and vertical directions, and that the lashings and support were insufficient to withstand the forces that arise during sailing in bad weather. The defendants are therefore in principle responsible for the damage that has occurred to the deck cargo.

According to the evidence, it must be assumed that repairs could most appropriately be carried out in Austria, where the necessary equipment was located. Furthermore, due to the deadline for delivery of the cranes, LW cannot be blamed for choosing to transport new spare parts to the US rather than awaiting repair of the damaged ones. The amount of compensation must therefore not be reduced in whole or in part by the additional transport costs incurred.

Two judges (Jørn Hansen and Bent Rasmussen) find that there is no sufficient basis to determine that the bolts were not tightened, or that there were material defects. The breakage of the bolts must be assumed to be caused by a transverse force. The photographs, however, show that the safety fittings, which were also later reinforced by LW, are very flimsy, and there are no special safety fittings to withstand the forces to which the goods are subjected during a sea transport. This is found to be a contributing cause of the injury. As the assessment of such a matter requires special insight which cannot be expected of a master, the compensation for the cargo damage is estimated to be reduced by ATS 650,000, so that ZC's compensation amounts to ATS 5,378,558.

A judge (Mette Christensen) finds that the defendants have not proved that the damage to the crane arm is due to the bolts being insufficient to hold the weight, or not being sufficiently tight. Since the defendants have not shown that the damage was caused in whole or in part by the plaintiffs' actions, ZC's claim must be upheld in full.

Judgment is given by a majority of votes.

As far as LW's claim is concerned, it only constitutes LW's loss of profits, which is why the claim is dismissed.