These two cases concerned liability for damage to a nacelle (generator) for a wind turbine and vans that occurred during transport from Gothenburg, Sweden, to Spain on the Arroyofrio Dos owned by Flota Suardiaz SA (FS). During transport, the nacelle tore loose from the MAFI transport trolley to which the nacelle's transport frame was welded. The nacelle was damaged, and caused damage to eight Ford Transit vans taken on board in Zeebrugge, which were placed on the same deck as the nacelle and a hub for the wind turbine. There was no damage to the hub.

The wind turbine manufacturer, Bonus Energy A/S (BE), had left the transport of the nacelle and hub to DSV, which had entered into an agreement with C Breinholt A/S (Breinholt) as agent or carrier. The welding of the transport frame to the MAFI was carried out by Mobile Container Repair AB (MCR), who had been hired for that purpose by Hyundai Sweden Shipping Agency AB (Hyundai), who had in turn been commissioned by Breinholt. Hyundai and Breinholt were agents for FS in Sweden and Denmark, respectively.

Case S-15-02 concerned the damage to the nacelle, and Case S-5-03 concerned the damage to the vans. In Case S-15-02, Codan Forsikring, the cargo insurer of the nacelle, compensated BE and brought a recourse claim against If Skadeforsikring (If) as the liability insurer of DSV. If covered the recourse claim, and subsequently claimed against Breinholt and FS. In Case S 5-03, FS filed a claim against BE for the damage its nacelle caused to the vans.

If argued that Breinholt undertook to perform the transport task in question as a carrier. Breinholt entered into the transport agreement in question in its own name. Breinholt acted at its own expense and made a profit in connection with the welding and maritime transport, and Breinholt signed the bill of lading in its own name without stating a power of attorney. Breinholt thus met all the criteria for being considered an independent carrier. It was irrelevant that Breinholt had on other occasions signed bills of lading with other customers as a proxy. Breinholt acted as an independent carrier and offered solutions for shipping tasks of any kind, which could be found on Breinholt's website. Breinholt had an independent responsibility for the lashing task, which was performed inadequately and contrary to instructions. Breinholt undertook the lashing task, passed it on to Hyundai as an assignment from Breinholt, and Breinholt took a profit for the passing of this order. The weather during transport was reportedly not unusual for the season or place. One of the causes of the damage might be the welding, another the inadequate lashing of the nacelle.

Breinholt argued that it only acted as a transport intermediary, as it was a line agent for, among others, FS. Breinholt therefore had no carrier responsibility. Breinholt received instructions from DSV, who was aware that Breinholt was a shipping agent, and Breinholt passed on these instructions. Breinholt did not take remuneration, or only a very modest remuneration, for passing on the welding task to Hyundai. The choice of Hyundai could not be criticised, nor could it be criticised that Hyundai passed on the assignment to MCR, who was recommended by the port for the task. Breinholt was not independently responsible for the execution of the welding, but only for the transfer of the assignment to a suitable welder. The bill of lading, signed for the master, was a shipping company bill of lading and showed that FS was the carrier.

Breinholt argued that FS must thus bear the ultimate responsibility if If's claims are upheld, as the nacelle was in FS' custody at the time of the accident. The master has an independent responsibility for the seaworthiness of the ship. The master or his agents were familiar with the welding and could have independently decided whether the welding was good enough. It does not require much skill to control the quality of a weld like this. FS was thus responsible as the carrier and as the principal for the agent who chose the welding company, with the special presumption of responsibility that applies to the carrier: see s 275 of the Merchant Shipping Act, which broadly corresponds to art 5.1 of the Hamburg Rules.

FS argued that it had nothing to do with picking up or securing the nacelle onto the transport frame, nor had anything to do with securing the transport frame. Pursuant to s 256 of the Merchant Shipping Act, which broadly corresponds to art 3.2 of the Hague-Visby Rules, the carrier must to a reasonable extent examine whether the goods are packed in such a way that they cannot be damaged, or cause damage. This limited duty of investigation was fulfilled by the master. The master made sure that the transport frame was welded to the MAFI, and that the MAFI was lashed. It looked good enough.

In Case S-5-03, SF argued that BE was responsible as the shipper of the goods: see s 290 of the Merchant Shipping Act, and compare arts 4.2.i, 4.2.n and 4.3 of the Hague-Visby Rules. BE was stated in the bill of lading as the shipper. BE was therefore responsible for what was done by Breinholt, Hyundai, and the welder adopted by Breinholt through Hyundai. The welding was not an independent task which was performed separately, and it therefore related back to BE as the shipper. There could be no doubt that the defective welding was wholly or partly the cause of the damage to the vans.

BE argued that it was not the shipper, and that FS had not proved any errors on the part of BE. BE left the transport task to DSV and Breinholt, who were fully aware of how the transport task was to be solved. The fact that an assistant in a later stage in the transport solved the task less well cannot lead to BE being held responsible for this. Finally, FS should have limited its losses relative to Ford. It should not be to the detriment of BE that FS had not done this, or had not wished to enforce limitation of liability.

Held: Judgment for If in Case S-15-02. Judgment for BE in Case S-5-03.

Case S 15-02

For the reasons stated by If regarding the contractual relationship with Breinholt, it is accepted that Breinholt must be considered a sub-carrier. Breinholt is therefore responsible in relation to If (as subrogee for DSV) for the errors committed during the transport from Gothenburg to Spain. The welding of the nacelle's transport frame to the MAFI trailer was not carried out in a way that was justifiable in relation to the contingencies that could expected during sea transport. Breinholt is therefore liable as carrier for damage to the nacelle which occurred after the goods were taken over for transport, unless an exempting circumstance is present. Breinholt has not proved that any of those circumstances exist.

FS is liable for damage to the goods while it is in the company's custody, unless FS proves that the damage is not due to fault or negligence on the part of this company or someone for whom it is responsible: see ss 274 and 275 of the Merchant Shipping Act.

After the presentation of evidence, it must be left uncertain whether and, if so, to what extent, the nacelle, as required, was secured with chains that, together with the welding, could ensure that it stayed on the MAFI trailer. There was no independent information on securing the nacelle, as none of the inspection companies was able to comment on this. In none of the numerous submitted photos, some of which were taken shortly after the incident, are straps or chains or remnants of such seen. It has not been possible to present the broken or damaged chains or straps which, according to the master's explanation, had been used to fasten the nacelle.

The weather conditions in Biscay were not unpredictable at the time of the accident.

On this basis, it must be established that the shipping company has not proved that the damage is not wholly or partly due to errors or negligence on its part. Furthermore, in the absence of further information, including more precise technical calculations, it must be assumed that the damage to the nacelle and the vans could be due to both the deficient welding and the lack of sufficient lashing of the nacelle. Breinholt and FS are therefore jointly and severally liable to If for the damage to the nacelle.

There is no evidence to impose liability on Hyundai as an independent carrier. Hyundai did not make a transportation promise or promise to provide services in its own name. Hyundai did not prepare transport documents in its own name and did not submit an independent price offer. Hyundai is therefore only liable if it is proven that the company has committed errors or negligence in the performance of the duties the company undertook, including the allocation of the welding task. Hyundai passed on the welding task to MCR, which was designated by the Port of Gothenburg as suitable for carrying out the task. It has not been proven whether, or to what extent, Hyundai received further instructions on the execution of the task. There is therefore no basis for imposing co-liability on Hyundai for the damage.

Case S 5-03

BE was named as the sender of the goods (shipper) with the company's consent and is therefore basically responsible as the shipper: see s 290 of the Merchant Shipping Act. In relation to FS, represented by Breinholt, however, it must have been clear that BE was not in fact a shipper (afsender) within the meaning of the Merchant Shipping Act, but a consignor (aflaster): see s 251 of the Merchant Shipping Act, and that the shipper was DSV and Breinholt, respectively. The circumstances of both the shipper and the consignor must be assessed in accordance with an ordinary fault standard, and the burden of proof that there is a liability-incurring error is in principle borne by the carrier who has suffered damage. The Court does not find that any liability-bearing relationship has been proven in respect of BE. As so often before, the company handed over the solution of the transport task to DSV, which passed on the task to Breinholt, who had considerable experience with such shipments. There is therefore no basis for imposing liability for the damage to the vans upon BE.