Case BS-28718/2025-SHR, judgment of the Danish Maritime and Commercial High Court of 7 October 2026
In its judgment of 7 October 2026, the Danish Maritime and Commercial High Court considered whether a broken trailer seal and the resulting risk of contamination of food constituted compensable damage under the CMR. The judgment addresses, in particular, the evidence required to establish that the goods actually sustained damage during carriage.
1. The facts
The case concerned the carriage by road of a consignment of fresh, vacuum-packed pork within the United Kingdom. During carriage, unauthorised persons broke the trailer seal and opened its rear doors for 14 seconds.
Following the incident, the original consignee allegedly rejected the goods on the grounds of a risk of contamination. The goods were then returned to the consignor and subsequently resold at a substantially lower price. The cargo insurer indemnified the price difference and brought a subrogated claim against the carrier for approximately GBP 35,000.
The parties had entered into a framework agreement imposing specific requirements for the handling of food, including provisions governing the opening of the trailer and the handling of its seal. The cargo insurer argued, among other things, that the broken seal and the resulting risk of contamination had diminished the value of the goods and that the carrier was therefore liable.
The carrier denied that the goods had sustained damage within the meaning of the Danish CMR Act, relying on a subsequent survey which had concluded that the goods were undamaged and remained fit for their intended purpose.
2. The Court’s reasoning and decision
The Maritime and Commercial High Court dismissed the claim against the carrier.
The Court first held that the provisions of the Danish CMR Act took precedence over the terms of the framework agreement. Under section 24(1) of the Danish CMR Act, the carrier is liable for loss of or damage to the goods occurring while they are in its custody. However, liability under that provision presupposes that the goods have actually sustained damage. As a general rule, a merely theoretical possibility that damage may have occurred is therefore insufficient.
The Court attached particular weight to the fact that the subsequent survey had identified neither contamination nor any other damage to the goods. The packaging was intact, and the temperature had remained within the acceptable range throughout. Furthermore, the goods had subsequently been resold for human consumption, supporting the conclusion that they remained fit for their intended purpose.
Against that background, the Court found that neither the consignee’s rejection of the goods nor the lower resale price was, in itself, evidence that the goods had sustained damage or suffered an objective diminution in value as a result of the incident.
The Court also held that the framework agreement did not impose joint and several liability on the company that had entered into that agreement and the affiliated company that had undertaken the particular carriage. The claims against both companies were therefore dismissed.
3. Commentary
Case law has broadly recognised that a diminution in the market value of food may give rise to a claim for compensation under the CMR, even where the goods remain fit for human consumption.
This was illustrated by the Maritime and Commercial High Court’s judgment of 5 March 2014 (FED 2014.62), the so-called limonen case. The Court held that a consignment of organic meat was damaged within the meaning of the CMR because it had been contaminated with limonene during carriage, notwithstanding that the contamination did not affect its suitability for use as organic food. The contamination nevertheless diminished its market value.
In the case now decided by the Maritime and Commercial High Court, it had not been established that the goods had undergone any physical alteration. The purely theoretical risk that the goods might have been affected was insufficient to establish a diminution in their market value.
Following the judgment, a diminution in market value may still constitute compensable damage. This requires, however, evidence of actual damage to or deterioration of the goods, or at least a risk of such damage or deterioration that is more than merely theoretical.
