Case: BS-1523/2025-SHR
In a recent judgment concerning the theft of fashion clothing during carriage governed by the CMR, the Danish Maritime and Commercial High Court provided detailed reasons analysing the circumstances in which the theft of clothing from a parked trailer may be attributed to gross negligence on the part of the carrier.
1. The facts
A Danish fashion group [the Customer] entered into a framework agreement with a Danish logistics group [the Freight Forwarder] for the carriage of the Customer’s goods from Denmark to Spain. The agreement included the following provisions:
“6.4. General quality requirements
The Carrier shall comply with current rules and regulations regarding transport and to the extent relevant instruct drivers on current safety rules etc.
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As [the Customer’s] goods are easily tradable goods and consequently very popular, the Carrier is obliged to take the necessary measures when performing the transport services. Thus, the Carrier must ensure that stays in lay-bys or similar until the Carrier reaches the destination will be in recognised areas and areas that are as secure as possible.”
A proportion of the carriage operations involved travelling along the AP-7 motorway from the French–Spanish border at La Jonquera to Barcelona, where the Customer’s warehouse was located. The Freight Forwarder had subcontracted the carriage. On 14 January 2024, during one such carriage operation, a subcontracted carrier parked at a service area named “Àrea de Servei – Gironès”.
The service area had a petrol station, a rest area with picnic tables and benches, a small playground and parking bays for, among other vehicles, buses and lorries. It was partially lit.
While the lorry was parked, clothing was stolen from it during the night.
Following the theft, the Customer and the Freight Forwarder agreed, by way of an addendum to the carriage agreement, that vehicles carrying the Customer’s goods could only park along this stretch of motorway in wholly exceptional circumstances.
The Customer’s cargo insurers brought proceedings against the Carrier, contending that the theft resulted from gross negligence and that liability for the loss could therefore not be limited. In support of their claim, the cargo insurers argued:
- that the parking area used did not satisfy the requirements of the carriage agreement because it was situated in an area with a high risk of theft;
- that the words “as secure as possible” had to be interpreted in that context; and
- that, on their ordinary meaning, the words “as secure as possible” in clause 6.4 required the driver to choose the most secure parking option in the area and therefore to use the more secure parking facilities that were available nearby.
The Carrier denied having acted with gross negligence and argued:
- that the agreed freight was only EUR 1,915.63 and that the Customer could therefore not expect special security measures to be taken;
- that the contractual requirement to park in “recognised areas” could only be understood as referring to facilities intended for use by lorries; and
- that the Customer had merely imposed a general requirement to park “as securely as possible”, without giving any specific instructions identifying the parking areas that could be used.
2. The Court’s decision
The Court dismissed the claim for compensation without limitation of liability. Its reasons included the following:
“The extensive body of case law concerning the assessment of negligence under section 37 of the Danish CMR Act establishes, among other things, that an agreement requiring particular care to be exercised during carriage may be a relevant factor, as may the clarity and detail of the agreement and any specific instructions in this respect. Whether it was clear that the goods were particularly attractive to thieves is also relevant. Where the loss occurred during parking, the specific circumstances in which the lorry was parked form part of the assessment; see, among other authorities, U.2013.1521H, FED2019.45 and FED2020.244S.
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Known risks associated with parking along particular routes or in particular circumstances, for example in an industrial area over a weekend or similar, may also form part of the assessment of negligence, particularly where the loss occurred in a high-risk area in which there was reason to exercise particular care; see, among other authorities, U 1991 826 H and U.2004.366H, as well as U.1999.1072S.
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However, when considering the implications of clause 6.4 for the assessment of negligence in this case, account must be taken of the fact that the passages cited, and clause 6.4 generally, are drafted in broad and general terms, as illustrated by expressions such as ‘to the extent relevant’ and ‘as secure as possible’. Furthermore, in light of the evidence, including the testimony given and [the fact that the Carrier] invoiced EUR 1,915.63 for the carriage in question, the price paid by the Customer does not appear to reflect particularly stringent requirements as to the security measures to be observed during carriage.
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The Court finds that ‘Àrea de Servei – Gironès’ accordingly appears to be an ordinary motorway service area and thus satisfies the requirement in clause 6.4 of the framework agreement that parking take place in designated areas (‘stays in lay-bys or similar […] will be in recognised areas’).
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Furthermore, the Court finds that it has not been established that parking at ‘Àrea de Servei – Gironès’ breached the vaguely worded and flexible requirement in clause 6.4 of the framework agreement that parking take place in conditions that were as secure as possible (‘as secure as possible’).”
3. Commentary
There is an extensive Danish body of case law concerning whether the theft of goods from trailers parked during CMR carriage may be attributed to gross negligence. Earlier Danish case law attached considerable weight to whether the driver ought to have appreciated that the goods were particularly susceptible to theft and, if so, whether the necessary precautions had been taken to address that risk, even where the customer had given no instructions to that effect. In other words, the carrier was required to take such precautions on its own initiative.
In its judgment in the so-called “Widecom” case (UfR 2013.1521), the Danish Supreme Court held that goods particularly susceptible to theft may be carried as “ordinary general cargo”, unless the carrier “ought, when entering into the particular agreement, to have understood that the carriage concerned goods particularly attractive to thieves which [the consignor] wished to have carried subject to special security measures”.
In its recent judgment, the Maritime and Commercial High Court applied this twofold test when determining liability and found that the carrier had not breached the requirements concerning the use of parking facilities that could be derived from the agreement. In this context, it should be emphasised that the use of broadly worded criteria to define the applicable security requirements does not, in itself, justify a strict interpretation of the carrier’s obligations.
It is also relevant that the Court stated that “known risks associated with parking along particular routes or in particular circumstances, for example in an industrial area over a weekend or similar, may also form part of the assessment of negligence”. This factor appears to apply independently of any requirements otherwise imposed by the customer. The amount of the agreed freight may likewise be taken into account.
The judgments cited by the Maritime and Commercial High Court in this connection all predate the Supreme Court’s judgment referred to above. On this point, the recent judgment may therefore be understood as indicating that certain “minimum requirements” apply to the carriage of general cargo in all circumstances, irrespective of whether the consignor has given specific instructions. These would constitute minimum security standards for the performance of CMR carriage, failure to comply with which would amount to gross negligence when carrying general cargo.
