Reviewing the Danish Supreme Court judgment, dated 12 August 2003, case no 265/2002.
Gidana A/S bought 1.8 millions diskettes from a Philippine seller basis FOB Manila.
Gidana A/S contracted with DFDS Transport A/S regarding the transportation from Manila to Aarhus, which transport should be by sea to Hamburg and then by road to Aarhus.
DFDS Transport A/S, Manila agent, received the cargo from the original producer in a 40' sealed container against issuance of a clean on-board B/L, remarked "shipper's load count and sealed", FCL and description of the commodity and quantum of same.
The gross weight of the container was stipulated to be close to 37 tons, which was substantially more than the highest allowed total weight of approximately 30 tons. However, the weight stipulated in the B/L corresponded with the agreed quantum of diskettes.
Upon arrival at Aarhus it was however noted that the container merely contained 0.4 million diskettes, with a total weight of approximately 9 tons.
Gidana A/S then raised a shortage claim against DFDS Transport A/S, who in turn raised claims for indemnity against their sub-contractors.
The Danish Supreme Court held that DFDS Transport A/S were not liable, stating inter alia that it was undisputed that a maritime carrier of a sealed container had no obligation to arrange for a control weighing at the loading port. The Danish Supreme Court added that a possible weighing would in any event not have had the purpose of protecting the consignees against fraud.
Compared with the position as we understand it in at least some US Circuit Courts, where the carrier may be held liable for shortage if the container is not weighed and the correct weight inserted in the B/L, the above judgment is indeed news to be welcomed by carriers.