Sometimes it can be an issue to establish exactly when the responsibility for the cargo commences for a maritime Carrier. In Denmark, the custody period is somewhat wider than the "tackle to tackle" principle since the Danish Maritime Act on this point takes its inspiration from the Hamburg Rules. Under Danish law, the responsibility for the Carrier therefore commences as soon as the Carrier has "received" the cargo. There are still situations where disagreement can occur as to when the Carrier's "receipt" takes place. In a very recent judgment passed by the Danish Supreme Court (December 2012), the issue arose in connection with a road haulier who, on a Friday afternoon, left a trailer in the arrival/departure/terminal area for a ro-ro service. Sometime before the trailer was picked up by ferry personnel, it was stolen.
In this particular case, the driver had gained admittance to the ferry service's terminal area by collecting a ticket which opened a barrier to the terminal area. The driver then left the trailer parked in the area for the trailer to be picked up by the ferry service's personnel to be rolled on board to be carried on a trip during the weekend. The terminal area was effectively not provided with any fences and there was no bar or hindrance for anyone to leave the area including removing a trailer at any time before the ferry service personnel had commenced transfer to the vessel. In fact, some road hauliers used the area for parking only with no intention of onward carriage by the ferry operator.
This particular road haulier and the ferry service had also made a cooperation agreement according to which the rates for the service were agreed to include only the actual carriage itself together with on board/off board transfer to and from the vessel of each particular trailer. The agreement also included a provision that the Carrier did not accept any liability for any trailer unless a sea waybill had been issued. The trade was substantial with some 10,000 units carried annually.
Notwithstanding this part of the agreement, the parties had not practised a procedure whereby the Carrier issued a sea waybill for each particular trailer – instead the parties simply followed a practice whereby no receipt as such (by way of a sea waybill or other receipt) was issued.
The road haulier argued that the Carrier's issue of the ticket, issued when gaining admittance to the terminal area, constituted a receipt which therefore would mean that the Carrier had "received" the trailer as required under the Danish Maritime Act. The Owners/ferry operators, on their part, argued that they had not included in the agreement (when fixing the rates) any additional service by way of safekeeping of trailers and that they had not issued a sea waybill or any other form of receipt which would constitute their acceptance of having received the trailer.
The Danish Maritime Act is, on this point, inspired by the Hamburg Rules, but even the Hamburg Rules are not entirely clear as to what constitutes receipt of cargo by a Carrier. In the consultation paper and other preparatory work for this provision in the Danish Maritime Act, it was, however, expressed that in order for a Carrier to have "received" the cargo, the Carrier himself or his personnel must either have "handled" or at least had "control" over the cargo.
The Supreme Court held that this particular provision did not mean that the parties could not agree as to what should be comprised by the service provided by the Carrier. In other words, it was relevant that the Carrier in the agreement (and especially concerning rates) had said that the service was only the actual transfer plus on and off board transfer to and from the vessel and that no other safekeeping or other custody was accepted by the Carrier. Furthermore, the Supreme Court held that since the terminal area was effectively "open" (and with the area sometimes being used by hauliers as merely a parking facility with no intention of actual transfer via the ferry service) then - at least in these circumstances -– the Carrier had not handled and certainly had not had control over the trailer.
The result therefore was that under these circumstances, the Carrier had not received the trailer as required under the Danish Maritime Act with the effect that the Carrier was not held liable for the loss of the trailer.
This is the first time the question of commencement of the Carrier's liability has been decided by the Danish courts, and this particular decision therefore is useful when deciding whether or not the custody period of the Carrier has commenced. The parties can agree the extent of the service provided by the Carrier and depending on the facts i.e. what is actually done by the Carrier is important since the custody period will not commence (unless agreed otherwise) unless the Carrier or his personnel has actually handled or at least had sufficient control over the cargo.
Since this question was decided for the first time by the Danish courts, the case was heard by a total of three instances ending with the final decision by the Supreme Court. At all stages throughout, the Owners' interests were represented by lawyers from Skuld Copenhagen appearing in the City Court, High Court and Supreme Court.