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In a recent ruling on the recharge of the sum insured in a project liability insurance policy, the Danish Building and Construction Arbitration Board ruled that the obligation to recharge was incumbent on the policyholder (adviser), regardless of whether the client had requested it or not. This article examines the ruling and highlights the conditions that parties should be aware of when refilling.
This article provides options for companies which have a claim against a bankrupt tortfeasor and discusses Section 95 of the Insurance Contracts Act, which gives creditors the right to raise a claim directly against a tortfeasor's insurer. However, this right is forfeited if the applicable deadlines are not met.
The execution of 'hot work' (ie, work which carries the risk of fire) often results in fires. Therefore, anyone who executes or arranges for the execution of hot work should be aware of how damages and possible liability for damages can be avoided. Hot work insurance policies should also be thoroughly examined. This article highlights the rules that craftspeople, contractors and clients must consider before and during the execution of hot work, as well as the associated liability issues.
A new ruling determines that prorogation of jurisdiction can be validly agreed in a yacht insurance contract, even where consumer interests are concerned and the contract requires that legal proceedings be brought in a court in the insurer's home country. Pursuant to the ruling, a private policyholder who is an EU citizen and purchases boat insurance in another EU country is bound by the jurisdiction agreement in the insurance contract.
Shipping & Transport
The Danish Maritime and Commercial Court recently rejected a jurisdictional claim in a dispute between a Danish shipowner and a Spanish shipyard. It follows from the judgment that a jurisdiction clause in a repair contract in some instances requires that the party which receives the other party's general terms and conditions must accept the jurisdiction clause in writing in order for it to be binding between the parties.
Court decides whether CMR carrier was grossly negligent for theft of branded champagne during carriageDenmark | 30 September 2020
The Maritime and Commercial Court recently examined a compensation claim for stolen champagne. The customer argued that the carrier should have taken precautions to protect the goods against theft. However, the court decided that the carrier could limit its liability for the theft. The judgment is in line with Danish court practice concerning liability for the theft of high-value and exposed goods.
A Danish court recently found a freight forwarder to be vicariously liable to a Danish company for fire damage caused to cargo carried by a subcontractor. The judgment suggests that a contracting carrier may incur liability where a general average situation is deemed to have occurred if it fails to provide information to its customer about the concrete circumstances that give rise to the general average situation, even when the contracting carrier holds no information about said circumstances.
A recent Maritime and Commercial Court case examined a claim for damage to goods during unloading under the Convention on the Contract for the International Carriage of Goods by Road (CMR). The court found that a CMR carrier is not liable for damage in connection with the unloading of goods irrespective of whether the unloading was performed by a driver, as drivers in such instances may be deemed to act on behalf of consignees.
Cargo claim heard in Denmark despite exclusive jurisdiction agreement referring to High Court in LondonDenmark | 08 April 2020
The Danish High Court recently addressed whether legal proceedings against a Danish shipping company, which had contracted to carry containers from China to Copenhagen, could proceed in Denmark irrespective of the fact that the claimant and the shipping company had agreed that the dispute should be heard exclusively by the UK High Court. The Danish High Court decided that the case could nevertheless be heard in the substance by the Danish courts.
The Maritime and Commercial Court recently examined whether the theft of tobacco products was covered under the cargo policy agreed between a wholesaler and a carrier and whether the wholesaler's insurer was liable. It is clear from the judgment that cargo insurance coverage under the Danish Extended Conditions requires that the transport of insured goods commences immediately after loading onto the means of transport has taken place.
A recent Maritime and Commercial Court decision concerned carrier liability for temperature damage to a consignment of pharmaceuticals. The court's judgment signals that carriers must make quick decisions and implement actions to respond to temperature alarms in order to avoid unlimited liability.
The Maritime and Commercial High Court recently examined a direct action claim against a Dutch freight liability insurer in a carriage of goods by road dispute involving a bankrupt carrier and a Danish manufacturer of cigarettes. The premise relied on by the court in this matter, if not appealed, may seem ripe to undermine some insurance policies between liability insurers and international carriers, including proper law provisions and time limitation under a policy.
A recent Maritime and Commercial Court decision in which a carrier was found liable for a missing delivery underlines the importance of getting transport documents signed as a receipt for goods delivered. A signed transport document is the carrier's proof of delivery. Hence, in case of doubt as to whether delivery has taken place, the transport document serves as compelling evidence.
A recent Maritime and Commercial Court ruling highlights that a carrier may be exposed to unlimited liability for loss resulting from a failure to adhere to a shipper's demands regarding special precautions, even when these demands do not follow from the parties overall cooperation agreement. The case concerned PS4 consoles which were stolen during transportation after the exporter failed to inform the carrier that the consignment was theft sensitive.
The International Convention on Civil Liability for Bunker Oil Pollution Damage introduced a strict liability regime for bunker oil pollution damage. However, the Maritime and Commercial Court recently ruled that shipbrokers, chartering brokers and commercial managers that provide cargo, commercial contracts or commercial agreements but are not involved with a ship's technical operation may fall outside the scope of liable parties under the convention.
A recent Maritime and Commercial Court decision demonstrates that in order to obtain compensation after cargo has been delivered without the presentation of a bill of lading, it must be proven that the release of said cargo resulted in financial loss. Therefore, in order to pursue compensation from a carrier or agent, a seller that has received no payment from the buyer for the delivery of a consignment may need to prove that the buyer had not already obtained title to the goods delivered before their release.
A recent Maritime and Commercial Court case concerned two Danish OW Bunker companies that had given a foreign bank security against their ordinary claims and subsequently became subject to insolvency proceedings. The judgment stressed that parties facilitating financing in the shipping industry must consider the law of the transferor's domicile and undertake due diligence in accordance with this law in order to protect their interests in the event of the transferor's insolvency.
In a recent Maritime and Commercial Court case concerning liability for unpaid bunkers following a charterer's insolvency, the bunker supplier submitted that the question of whether a vessel can be arrested outside Danish jurisdiction must be decided as a general rule in accordance with the laws and by the courts of the jurisdiction where the arrest is made.
A recent Maritime and Commercial Court decision concerned the liability under Article 17 of the Convention on the Contract for the International Carriage of Goods by Road of a road carrier and a sub-carrier following the theft of high-value tobacco products. The court found that although the road carrier was liable for the theft, the sub-carrier was free of any liability as the road carrier had failed to provide it with details of the slot time for delivery.
Maritime and Commercial Court finds that stevedore contract exists despite lack of written instructionsDenmark | 27 June 2018
A manufacturer of wind turbine equipment instigated court proceedings before the Maritime and Commercial Court against a port terminal for damage to wind turbine blades. It follows from the judgment that a contract for the performance of stevedore work, including storage, can be deemed to exist irrespective of the fact that no written instructions or booking from a principal has been issued or received.
The High Court of Western Denmark recently decided in favour of a Danish cost insurance and freight (CIF) seller in a jurisdiction dispute involving a Czech buyer. The court found that the CIF clause agreed under the International Commercial Terms 2010 stipulated that the place of delivery under the contract was located in Denmark and that the Danish court seized had enjoyed jurisdiction under the EU Brussels I Regulation.
The Supreme Court recently decided a case on appeal from the Maritime and Commercial Court concerning whether the latter had jurisdiction to hear proceedings that a Danish seller had brought against a Dutch terminal and a Danish carrier following a lost food consignment pursuant to Article 8(1) of the Brussels I Regulation. The Supreme Court reversed the Maritime and Commercial Court's decision and found that the conditions for applying Article 8(1) had been fulfilled.
A recent Maritime and Commercial Court case concerned liability for damage to a container transported from Denmark to the United States. The bill of lading included a network liability clause which limited liability to $500 per package when damage or loss occurred during sea carriage or where the damage occurred could not be localised. The court found that the damages had been caused during the land transport leg in the United States and therefore the carrier's liability could not be limited.
A bill to amend the Danish regulations on the registration of ships under Section 2 of the Merchant Shipping Act was recently passed with the aim of attracting non-EU and non-EEA merchant shipowners and shipping and management companies to the Danish flag. The bill's main innovations include an increasingly transparent activity requirement, multiple ways of satisfying this requirement and an equal establishment requirement that applies to EU and non-EU shipowners.
The Maritime and Commercial Court recently found that bad weather during sea carriage that results in cargo damage does not exempt a carrier from liability if the weather conditions were forecast or not unusual in the geographical location in question during the relevant season. However, the judgment provides no guidance on the liability issues that arise if the prevailing weather conditions render it impossible to conduct repairs of defects that occur in a container being carried at sea.
A recent Maritime and Commercial High Court decision concerning the carriage of a consignment of different types of medical product found that smoke contamination constituted visible damage under the Carriage of Goods by Road Act. The decision underlines the importance of inserting reservations into waybills when a consignee has reasonable grounds for doing so and illustrates the dire consequences of failing to do so.
Significant Supreme Court decision considers choice of law principles applicable to direct action claimsDenmark | 08 November 2017
The Supreme Court was recently tasked with deciding the law applicable to direct action claims. The decision is noteworthy, as the court analysed the choice of law question of direct action independently from the choice of law principles relating to the contract of insurance and lex loci delicti. The wording of the Supreme Court's decision suggests that the choice of law analysis applied only in respect of the question of direct action.
The Supreme Court recently passed down its decision in a product liability appeal case between a manufacturer of marine engines and a Danish shipowner. The pivotal question before the court was the distinction between damage to the defective product itself, which was not compensable under product liability law, and other property, which was compensable.
Jurisdiction clause agreed by insurer and insured does not bind injured party claiming directly against insurerDenmark | 06 September 2017
The Port of Assens recently brought legal proceedings before the Danish Maritime and Commercial Court against the insurer of a Swedish carrier for damages caused by a chartered tugboat. The judgment was appealed to the Danish Supreme Court, which requested a decision from the European Court of Justice (ECJ). The ECJ found that a jurisdiction clause agreed between an insurer and an insured does not bind an injured party claiming directly against the insured.
Court finds that leaving trailer for two days at petrol station does not constitute gross negligenceDenmark | 09 August 2017
The Maritime and Commercial Court recently examined a claim of gross negligence by a Danish trading house against a Danish carrier following the theft of clothing from a trailer that had been left unprotected at a petrol station for two days. The court found that gross negligence exists in the case of theft from an unprotected trailer only if the carrier has been instructed that special precautions must be followed to avoid theft and it fails to follow such measures.
A recent Maritime and Commercial Court decision considered whether a charter agreement could be interpreted to the effect that the charterer's liability to pay mobilisation and demobilisation costs should be unenforceable if these costs were covered by another charterer.
In a recent Maritime and Commercial Court case, the cargo insurer of a Danish seller claimed that the court had jurisdiction to hear the proceedings that it had brought against a Dutch terminal and a Danish carrier following a lost food consignment pursuant to Article 8(1) of the Brussels I Regulation. However, the court found that Article 8(1) could not establish jurisdiction for the cargo insurer's claims against the terminal and the carrier.
A recent Maritime and Commercial Court decision illustrates that a report obtained from a reliable third party can have a conclusive effect when examining the extent of damages. The decision also illustrates that failure to comply with public regulations when storing goods may constitute damage amounting to a total loss when there has been a possibility of the goods being damaged or contaminated, regardless of whether it has been demonstrated that the goods have been affected.
Court finds that Danish bill of lading terms prevail over common German conditions of freight forwardingDenmark | 15 February 2017
A recent Copenhagen Maritime and Commercial High Court case examined a situation in which both parties, immediately before the formation of a contract, referred to their own standard terms and conditions. This is commonly known as the 'battle of the forms'. The case illustrates the problem which arises when contracting parties, while focusing on issues essential to a specific deal, are less conscious of questions such as the choice of venue for resolving disputes.
Pursuant to a recent Maritime and Commercial Court judgment, when works excluded from the scope of the Convention on the Contract for the International Carriage of Goods by Road (CMR) are performed subject to the CMR as a contract term, either reference should be made to the CMR as a whole, or all relevant clauses of the CMR which are to govern the contract should specifically be incorporated by reference.
Supreme Court asks ECJ whether jurisdiction clause binds third-party proceedings against P&I insurerDenmark | 07 December 2016
The Supreme Court recently requested guidance from the European Court of Justice on whether an injured party which, under national law, may bring proceedings directly against the liability insurers of the liable party is, under EU law, bound by the jurisdiction clause of the policy between the insurer and policyholder. The request follows an appeal by a Danish port for liability claims against Lloyd's of London.
A recent Maritime and Commercial Court decision suggests that carriers can – regardless of any special instructions – adopt a minimum safety standard, and that gross negligence occurs when this standard is not met. Previously, gross negligence existed only if a carrier ought to have known the nature of the products carried and failed to take relevant safety measures, irrespective of any special instructions from the shipper.
The Maritime and Commercial Court recently found a freight forwarder liable for losses caused by the theft of tobacco products that were stolen from its tarpaulin trailers during delivery. The judgment is interesting as the court did not attach any importance to the fact that the manufacturer had chosen the cheaper trailer when deciding the question of liability, as it found that the forwarder had failed to warn against the use of tarpaulin trailers.
A recent Maritime and Commercial Court case examined the important and recurring question of when delivery under the Convention on the Contract for the International Carriage of Goods by Road has been completed. The court found that where the carrier arrives at the agreed time and submits the correct documents to the consignee then delivery can be deemed to have taken place, even if the consignment has been rejected.
The Maritime and Commercial Court recently decided that a contracting carrier's recourse claim against a Dutch ship owner – subcontracted to transport cargo damaged during a voyage – could be heard in Denmark pursuant to Article 8(2) of the Brussels I Regulation, despite the fact that under the liner booking note, all disputes arising in relation to the carriage should be decided in the Netherlands in accordance with Dutch law.
Following the loss of a vessel carrying containers from Vietnam to Denmark, its operators established a global limitation fund before the Tokyo District Court. The container owner subsequently began legal proceedings against the contracted and subcontracted carriers before the Danish Maritime and Commercial Court. The court ruled that the limitation fund did not affect legal proceedings against the two parties in Denmark.
The Maritime and Commercial Court recently rendered the first Danish decision on the issue of liability in the Mol Comfort incident. The decision is in line with Danish case law as it imposes on the carrier the burden of proof that a casualty – even one which resulted in the loss of an entire vessel and its containers – was not caused wholly or partially by any errors or omissions by any party for which the carrier was responsible.
A seller recently submitted a claim against two carriers for damage caused to two steel tanks during carriage, arguing that as no reservations regarding the condition of the tanks had been inserted in the consignment note, it should be presumed that the damage had been caused while the tanks were in the custody of the carriers. However, the court found the carriers free of any liability, as it had not been proven that the damage had been caused during carriage.
A wind turbine manufacturer contracted a logistics services provider for the transport of wind turbine blades to a port terminal, which was the provider's usual subcontractor. Two blades were damaged while under the care of the terminal. The Maritime and Commercial Court found that the logistics services provider was not liable for the damage as the blades were not in its custody when damaged.
A recent Maritime and Commercial Court decision found that a shipyard was not liable for fires in the engine room of a vessel that it had repaired. The parties had agreed that the shipyard would be liable for damages caused to the vessel due to negligence on the part of the shipyard. However, the vessel owner failed to establish the source of the fires or prove the shipyard's negligence.
A recent case has illustrated that a defect to a product installed in a vessel may result in the manufacturer and the distributor of the defective product incurring product liability if the defective product leads to the vessel damaging another property, including a collision with another vessel. Further, the distributor may be held liable under product liability rules for the manufacturer's actions.
The Maritime and Commercial Court recently held that a carrier should indemnify its cargo insurer for compensation paid to the buyer when cargo loaded on deck was lost overboard. As the court pointed out, the quotation for insurance stipulated that the cargo would be loaded below deck, and that the insurer would not have confirmed the insurance if it had been informed that the cargo would be loaded on deck.
A recent Maritime and Commercial Court judgment decided whether a jurisdiction clause in a liability insurance contract is to be given any effect in proceedings brought directly against liability insurers by a claimant which is not a party to the insurance contract. The court assumed that Section 95 of the Danish Insurance Contract Act was applicable to the claim in the case heard.
The recent bankruptcy of OW Bunker entities has given rise to legal uncertainty among shipowners which fear that their vessels may be arrested by unpaid physical bunker suppliers. The risk that payment for bunkers will have to be made twice (ie, both to a physical bunker supplier and to an insolvent bunker provider) appears to be an possibility. This update looks at relevant points from a Danish insolvency law perspective.
A recent Maritime and Commercial Court judgment concerned the question of whether a carrier was guilty of gross negligence in circumstances where it was aware that the transport agreement related to "sought after" goods but nonetheless stopped at an insecure parking facility from which goods had been stolen in the past.
A recent Maritime and Commercial Court judgment indicates that a contract on the carriage of goods may be deemed to have been entered into, even if no booking note has been issued, if agreement has been reached concerning the conditions of carriage. Pursuant to general principles of Danish law, in order for an agreement to be considered to have been entered into, all material terms must have been agreed.
A recent decision deals with the question of whether a trailer which is parked at a contracting carrier's terminal may be deemed to be in the contracting carrier's custody. As a starting point, a trailer is considered to be in the custody of the party that parks it at a particular location, unless it has been agreed that the trailer, when parked, shall be considered to have been delivered into the custody of the contracting carrier.
The Maritime and Commercial Court has clarified that a road carrier may be liable for damage that occurs after termination of the transport undertaken by the road carrier and regardless of the fact that the goods are no longer in its custody. Such liability, under Danish law, follows from general legal principles and is not based on the Convention on the Contract for the International Carriage of Goods by Road.
The Maritime and Commercial Court recently found that a carrier's liability should be decided on the basis of the NSAB 2000, including the network clause. The decision is a clear example of the application of a network liability principle under Danish law. The application of the Hague-Visby Rules means that these rules have mandatory application in case of damage to carriage of goods by sea and in ports.
A recent Maritime and Commercial Court decision held that a sender of cargo is liable without fault in relation to the carrier for losses arising from inaccurate information about the cargo. Thus, a sender cannot avoid liability even if it was unaware that a third party had included undeclared goods within the consignment.
The Maritime and Commercial Court recently ruled that a bunker trader was liable for losses resulting from the refusal to accept a vessel holding bunkers. When a vessel nominated in a bunker contract has been accepted subject to a specific condition being fulfilled, any such condition may be invoked only if it relates to circumstances on which information was not already provided when the condition was made.
In a decision in line with existing Danish court practice, the Maritime and Commercial Court recently ruled that armed robbery cannot exclude a carrier from liability under the Convention on the Contract for the International Carriage of Goods by Road if the robbery occurs while the carrier is staying at an unsafe parking facility in an area where robbery of trucks and cargoes occurs frequently.
The Maritime and Commercial Court recently considered whether the basis for selling a consignment at a reduced price to a secondary market can be based on a concern not to risk damage to goodwill or whether it can be based on a depreciation in the product's market value despite no reduction in its quality. The case concerned a consignment of organic beef that had been contaminated with low levels of limonen during transit.
The High Court of Appeal recently clarified the debated issue under Danish law of whether a bankruptcy estate is bound by an arbitration agreement entered into before the bankruptcy in circumstances where the arbitration proceedings are brought subsequent to the declaration of bankruptcy. The dispute arose in relation to a charterparty agreed between the US owner of a vessel and a Danish charterer.
A recent judgment confirms that, regardless of whether a contract on the sale of goods has been entered into on ex-works terms, a seller may be liable for damage occurring after delivery of the goods when, on a separate basis, the seller has undertaken to lash or secure the goods in a container. A promise to lash cargo must be interpreted to include a lashing which is sufficient to secure the cargo during its entire voyage.
A recent judgment has confirmed that under Danish law, where a voyage charterparty is entered into on liner terms, in general the risk of congestion resulting in a delay to the vessel will rest with the owner. The court argued that it is not sufficient to amend or alter this risk allocation by adopting standard terms and conditions stipulating that the congestion risk is to be borne by the charterer.
A recent judgment reconfirms that under Danish law, in cases of loss of high-value and theft-sensitive goods, the fact that such loss was most likely the result of a criminal offence committed by the employees of the carrier involved is generally insufficient to break limitation. The case involved the disappearance of a consignment of Sony PlayStations during transport from Denmark to Norway.
The Supreme Court recently clarified that in order to break limitation for liability in cases of theft, it must be proved that the carrier knew that the cargo shipped was of high value, such that its safe carriage would require the adoption of special safety measures. The court held that how the transport is carried out with regard to safety is an issue that should be decided in contract negotiations between the shipper and the carrier.