sø- & handelsrettens dombog

- kbn udskrift af sø- & handelsrettens dombog ____________ dom afsagt den 20. januar 2015 h-41-10 1) siemens ltd (advokat henrik thal jantzen) 2) siemens wind power a/s (advokat henrik thal jantzen) mod shipping.dk chartering a/s (advokat michael villadsen) indledning sagen handler om, hvorvidt shipping.dk chartering a/s er erstatningsansvarlig for siemens ltd. og siemens wind power a/s’ tab i forbindelse med skade på en nacelle under en lande- vejstransport. -2- påstande siemens wind power a/s og siemens ltd. har nedlagt følgende påstande: shipping.dk chartering a/s skal betale siemens ltd. modværdien i dkk på betalingsdagen af eur 95.791 med fradrag af modværdien i dkk på betalingsdagen af gbp 17.900 med til- læg af procesrente fra 27. maj 2010 til betaling sker. shipping.dk chartering a/s skal betale siemens wind power a/s modværdien i dkk på be- talingsdagen af eur 439.589 med fradrag af modværdien i dkk på betalingsdagen af gbp 82.100 med tillæg af procesrente fra 27. maj 2010 til betaling sker. overfor shipping.dk chartering a/s’ påstand om afvisning har siemens wind power a/s og siemens ltd. nedlagt påstand om frifindelse. shipping.dk chartering a/s har principalt nedlagt påstand om afvisning, subsidiært frifin- delse og mere subsidiært betaling af et mindre beløb. sagen er anlagt den 27. maj 2010. oplysningerne i sagen sagens parter og aftaler siemens wind power a/s (herefter siemens wind) er et selskab, der producerer vindmøller. siemens ltd. er et engelsk datterselskab til siemens wind (siemens wind og siemens ltd. benævnes samlet siemens). siemens ltd. havde indgået en aftale med et engelsk selskab, curragh mountain wind farm ltd. om levering af 8 vindmøller til vindmølleparken curragh mountain wind farm. sie- mens wind skulle producere og levere vindmøllerne. -3- siemens wind indgik i juni 2007 en rammeaftale med franck & tobiesen a/s (herefter franck & tobiesen), nu shipping.dk chartering a/s (herefter shipping.

1. dk)om transport af vindmøller. af rammeaftalen, hvori franck & tobiesen er refereret til som ”the supplier”, fremgår blandt andet: ”… whereas … the supplier is a company possessing expertise and knowledge in transporting the wtg’s *wind turbine generators+ and parts hereof and therefore is expected to have the requested sufficient personnel experienced in and licensed to execute the mentioned transport. … 2. application: this framework agreement applies to all transport contract(
2. s)which the supplier and siemens enter into. the rights and obligations under this framework agreement shall apply regardless of whether an actual contract has arisen out of this framework agreement between the par- ties. the supplier may in order to fulfill their obligations under the framework agreement subcontract companies within the supplier group of companies or other third parties. however, the supplier remains responsible towards siemens for their subcontractors’ er- ror and omissions. 3. scope of supply: this framework agreement outlines the business procedure and agreed formal condi- tions between the two above mentioned parties, for execution of project related trans- ports of siemens wind turbine components world-wide – except for north america. the execution of project related transports includes in headlines the following services: …  supply siemens with full (or partly) transport solutions and execution hereof, in- cluding all necessary logistical planning, documentation, negotiations with sub- contractors/authorities/agents ect. for various projects. … 7. suppliers obligations: … siemens instructions siemens and/or their representatives may advice the supplier in relation to the operations of the equipment. however, it is the sole discretion of the supplier to finally decide whether to act in accordance with the advice given. … supplier’s acknowledgements -4- the supplier (
3. i)acknowledges that he has been informed of the data (weight and size) of the wtg’s components (being nacelle, hub, blades, tower sections and auxiliary equip- ment), which shall be transported, (
4. ii)that he has full knowledge of the general transport conditions in the country/countries in question (iii) confirms that the equipment is fit, suf- ficient and adequate in all respects for the intended purpose, (
5. iv)foresees no obstacles, delays or cost increases to be incurred in his supply or execution of the work and (
6. v)shall perform the execution of the work in accordance with the conditions of this framework agreement and the transport contract(s). … 16. transport conditions, limitation of liability and insurance: transport conditions: all services provided by the supplier are subject to the provision of the transport con- tract(
7. s)incl. project specific exhibits, suppliers fbl or cmr, nsab2000, framework agreement. in case of ambiguity the priority of the documents shall be: 1. transport contract(
8. s)incl. project specific exhibits 2. suppliers fbl or cmr 3. nsab2000 4. framework agreement ... 18. choice of law, jurisdiction and arbitration this framework agreement and the enclosed transport contract(
9. s)shall in all respects be governed by and interpreted in accordance with the laws of denmark. the parties shall endeavour to solve disputes or disagreement through negotiations. if the dispute or the disagreement cannot be solved through negotiations between the par- ties such dispute or disagreement shall be referred to mediation. … the mediation shall be subject to the standard agreement issued by the danish attorney mediators from time to time, its ethical rules and danish lawyers code of conduct. if the dispute has not been solved by mediation within 8 weeks upon one of the parties’ request on mediation, each of the parties may require that the dispute is finally settled by the ma- ritime and commercial court of copenhagen with duly appeal to the supreme court. …” siemens ltd. indgik den 13. maj 2009 en transportkontrakt med franck & tobiesen vedrø- rende transport af 8 vindmøller fra esbjerg til curragh mountain wind park. af kontrakten fremgår, at bestemmelserne i rammeaftalen mellem siemens wind og franck & tobiesen er gældende. franck & tobiesen forpligtede sig ifølge aftalen til at foretage en prøvekørsel in- den selve transporten. franck & tobiesen viderekontraherede transporten fra skibets ankomsthavn i irland til cur- ragh mountain wind farm til selskabet abnormal load services ltd., der viderekontrahere- de transporten til mar-train heavy haulage ltd. (herefter mar-train), som herefter udførte transporten. -5- i mar-trains method statement fra maj 2009 vedrørende transport af de 8 vindmøller til cur- ragh, cork, er som kunde angivet abnormal load services (international) ltd. under over- skriften clients responsibilities & general conditions er bl.a. anført: ”…  provide safe access/egress and traffic management on site for the transport, support ve- hicles and personnel  co-ordinate the site activities of other contractors to facilitate unimpeded access to the working location during works  ensure the access ground to and from the working location is suitable level to within the transport and support vehicle tolerances and capable of withstanding the imposed axle loading quoted. …” under overskriften transporting of loaded components along site roads er endvidere bl.a. anført: ”all loaded vehicles must not stray off site track roads or use verges of any roads…” uheldet om morgenen den 29. maj 2009 ankom tre naceller på tre lastbiler til vindmølleparken. på vejen mod selve opsætningsstedet forsøgte en af lastbilerne at overhale en af de forankøren- de lastbiler, hvorefter den overhalende lastbil kørte ud i rabatten med den følge, at lastbilen tippede. det medførte, at surringerne, som holdt nacellen fast på traileren, bristede, og nacel- len faldt ud af traileren. efter uheldet blev der udarbejdet flere skadesrapporter. curragh mountain windfarm ltd.’s forsikringsselskab myi limited har den 8. juni 2009 ud- arbejdet en skadesrapport på baggrund af undersøgelser foretaget den 1. juni 2009. af rap- porten fremgår blandt andet: ”… enquiries … access on the site to the location of the turbines required construction of a road over a peat bog with soft peat ground at an estimated depth of around 4 m. -6- siac therefore constructed approximately 4 km of road being a floating geogrid road in- volving technology which we are told has been in use for around 10 years. … we are told that the road was constructed around november 2008 and was tested by an independent road testing organization, matt test, and met the specifications required. we noted there were soft verge warning signs at the entrance to the site. … circumstances / cause we are told on the morning of 29 may 2009 a convoy of 3 martrain heavy goods vehicles with low loaders transporting 3 nacelle units arrived at the site shortly after 1100 hrs. site safety requirements require that all visitors or employees entering the site undergo an induction process which includes general health and safety information and warning of hazards on the site (our representative also went through this process). we are told that the plan thereafter was for 3 vehicles to travel in convoy. for reasons as yet not clear, the first vehicle had to stop on the road, pulling in, slightly to a passing place (for much smaller vehicles) on the left hand side of the road. eyewitnesses, we understand employed by siac, saw the second vehicle and third ve- hicle had also stopped. the third vehicle behind had also stopped. the second vehicle however continued on and moved to the right to overtake or pass the first vehicle (which we are told should not have occurred). when passing the driver has either driven slightly off the road verge onto the peat bog or the very edge at the verge has collapsed onto the peat bog. this caused the tractor unit and trailer to slide at a gradient onto its side al- though still remained upright. the driver was able to extract himself from the cab but within a 10 minute period, the shifting of the load in the trailer at an angle caused the holding chains to break and the nacelle unit rolled off the trailer into the bog. the tractor unit and trailer were able to be recovered by simply driving the vehicle away from the scene. there are several potential causes of the accident which remain under investigation, namely:  driver error - we are told that the driver acted contrary to instructions on the me- thod statement provided by martrain around delivery to the site in overtaking a vehicle when there was clearly no room on the road to do so with a total load which would have weighed circa 114 tonnes and has allegedly driven slightly off the verge of the road into the peat bog causing the load to topple.  deficiencies in road construction - whilst the road has been in situ since around november 2008, the nacelle units will have been the heaviest plant being deli- vered since that time. whilst siemens require a minimum road width of 5 m, the road at the point where the incident occurred, excluding the passing place, was 8 m wide, around 1 m either side which would be considered the verge at the road. -7- what was clear during our visit that a width of 1 m at the right hand side of the road had disintegrated and collapsed downwards to a depth at approximately 0.4 m, over a length at approximately 8 m (see attached photographs). in accor- dance with discussions with lee simpson on 1 june we have on insurers’ behalf engaged the services of a forensic highways engineer and motor accident investi- gator from hawkins forensic engineers who had arranged to attend the site prior to removal at the roads. our further report under this aspect will follow.  it is possible that a combination of both of the aforementioned points have con- tributed to the incident occurring.  there is also a further potential cause in relation to some mechanical defect in the vehicle although no information or evidence around this possibility has yet come forward. nature and extent of loss property damage as informed, the nacelle unit has rolled onto its side into the peat bog. we were able to view the underside, either end and top at the external casing and no damage was evident thereto. it is not possible to tell what, if any damage, has been sus- tained to the side at the unit which is lying on the bog. there were clear signs through an access hatch of some internal components having shifted. siemens’ engineers have attended from denmark undertaking their own visual inspec- tion and advised that they cannot determine the nature and extent of damage currently and that the unit will have to be recovered and transported back to the factory in den- mark to undergo full examination and testing under factory conditions. the recovery of the nacelle unit is an onerous one. a crane will require to be brought on site and the floating road will have to be excavated around the site with the nacelle unit having to be underpinned until firm ground is reached (estimated depth around 4
10. m)to enable the recovery project to take place. various method statements have been discussed over the past week and the attached me- thod statement has been recommended to all parties. costs thereof are awaited. ...” rapporten var blandt andet vedlagt følgende billeder: -8- i forlængelse af rapporten er udarbejdet tillægsrapport af 9. juli 2009. under afsnittet poli- cy/legal liability er anført: “… 3.3 in summary, we consider that liability for the risk of damage to the turbine and ma- terial time rests with siemens. 3.4 siemens have however been included within the project policy cover which we will comment on as follows. … -9- 3.7 this policy would therefore appear to provide cover for siemens and the damaged nacelle. …” af havarirapport af 11. juni 2009 fra scottish and southern energy plc., fremgår blandt andet: ” 5. what was the estimated speed of the vehicle/s check far skid marks if safe to do so, possible, witness statements due to the load size and that fact that it was completing an overtaking manoeuvre, ve- hicle c was travelling very slowly probably no more than l0kmph. at the time the nacelle left vehicle c, vehicle c was stationary. it is not considered that speed was a root cause or factor in this incident. … 22. road conditions? road surface, adequate drainage, recent repairs to surface, previous skid-marks, debris, mud, adverse camber, damaged road boundaries? the road surface was in good condition and suitable for the delivery of the component. there was no evidence of skid marks, debris or adverse camber. it was ap- proximately 9m wide. … an intrusive (the road at the site of the incident was dug up with an excavator) investiga- tion into the road carried out by airtricity (bart doyle and decian deasy) with siemens and siac present established that the road was in fact constructed as detailed above and as per the agreed design drawings. following this investigation siemens and airtricity agreed that the road was not a factor in this incident. as the floated road was constructed on upland bog, the edges of the road were soft and not suitable for supporting head load. … 23. what were the immediate, underlying and root causes?  immediate / direct causes: dc1: direct cause 1: vehicle c left centre line of the road to pass vehicle b: the driver of vehicle c veered off the centre line of the road in an attempt to overtake vehicle b. there was not enough room for two abnormal loads to pass at this location and this forced the wheels of the trailer on vehicle c to enter onto the verge of the road, and probably into the peat. this resulted in the right hand side of the trailer sinking into the verge of the road and peat and causing the nacelle to gradually list and eventually fall of the trailer when the chains securing the nacelle to the trailer snapped. this was a severe error of judgement by the driver and was contrary to his own employer (martain) risk assessments and method statements, and also contrary to siemens risks as- sessments and method statements for turbine component deliveries. - 10 -  underlying causes: ul: underlying cause 1: vehicle b parked in inappropriate location blocking road: … u2: underlying cause 2: 300 t crane to offload the nacelles was not ready at t2: … u3: underlying cause 3: no written turbine component delivery plan in place: … u4: underlying cause 4: pscs site induction should clearly state that abnormal loads cannot pass except at specific, agreed, designated areas: … root causes: r1: root cause 1: vechicles a, b and c entered site without knowing where the end des- tination would be and if that location was safe and ready to receive them: … r2: root cause 2: lack of supervision by siemens of its two transport subcontractors mar- tain and mcnally: it appears that siemens has not directly managed the deliveries of each component and had allowed martain to deliver onto the site as they see fit. this is contrary to siemens method statement which clearly states that the siemens site manager is in charge of man- aging the delivery of components. there appears to have been little or no communication between the martrain drivers and supervisor and the siemens site manager on the day. the result of this was that the martrain drivers did not know that there was no location ready to receive a nacelle and that they should not in fact have entered site. r3: root cause 3: lack of co-ordination by siemens and its two sub-contractors with the site civil contractor and pscs (siac): it appears that siemens had not adequately communicated its plans and requirements to the client or to the site civil contractor and pscs (siac). in other words siac and the client did not know what siemens movements would be during the day in question. r4: root cause 4: lack of education by martrain of their drivers of the dangers of driving high value components on site and floated roads martrains method statements and risk assessments go into significant detail of the dan- gers of dropping a wheel on site roads. yet the drivers at vehicles a, b, c did not seem to be aware of these dangers on the day or the high value of their bad (€1 .2m). - 11 - r5: root cause 5: incident happened before lunch an a bank holiday friday it is likely that there was also a bank holiday effect where employees were eager to drop their load and get home for the holiday weekend. …” shipping.dk har fremlagt skadesrapport fra martrain med underliggende erklæringer fra chaufførerne. af skadesrapporten, der er udateret, fremgår blandt andet følgende: “… what actually happened: whilst the tow truck driver was at t2,, a siac employee asked him if he could get our vehicle on the main haul road to move as he was obstructing tip- per trucks from moving aggregate/peat from barrow pit to t4 and back. the tow truck driver then called the driver of t 18 mhh, tim shillington and asked him to unblock the road. the driver tim shillington then proceeded to move towards the t junction with the intention to park beside t23 mhh. as he past x134 nps who was partly on the haul road, he was half way past when the driver of x134 alerted him to stop as the trailer was starting to subside…” af erklæring af 29. maj 2009 fra chauffør tim shillington fremgår: ”at approximately 07.24 i arrived on site at the bottom of the hill. i escorted the camp trailer the first and second nacelles up the hill, then returned to bring up my lorry t 18 mhh coupled to mtsf 28 also with nacelle at approx 09.25. i arrived on site and pulled up on the right hand side of the road behind another truck. after discovering that the tipper lorries could not pass by i pulled forward keeping with- in the hard road whilst being watched by philip mccoullough another driver. he shouted at me that the trailer was sinking. i stopped, got out, and within 30-40 minutes the trailer had sunk to the point of turning over with lorry attached. at the last moment the chains and tighteners snapped and the nacelle slipped off the trailer.” af erklæring af 29. maj 2009 fra chauffør lee matthews fremgår: ”i lee matthews was the driver of t23 mhh volvo fhiz under the employment of mar- train heavy haulage. approximately 09.20 am on the 29/05/2009 i was approached by thomas oleary who is employed by siack engineering with relations to the conditions of the roads on curragh mountain wind farm as i had just taken the first nacel onto the site. during the conversations mr. oleary was informed that the section of road 300 m north of the main office complex was showing signs of subsidence and that the main track was cracking under the weight of the vehicle. the response to this information was that the road north of the compound would be looked at and that the main tracks were covered in a thin coating top layer that could crack under weight but return to its previous state later.” - 12 - af erklæring af 29. maj 2009 fra chauffør philip mccullough fremgår følgende: ”on friday 29 may 2009, i was driving x134 nps, delivering a nacelle, to curragh wind farm, mill street, co. cork. i parked my truck in a passing place, as best i could, with the rear of the trailer on the edge of the road. the driver behind me, also with a nacelle on his trailer, and i was watching him pass me, making sure that he was clear of me and also that his unit wheels were on the road, the top filling, and not on the rocks at the edge. as he was passing me, the rear of his trailer started to be pulled to his right and started to sink into the hard-fill on the edge of the road. at this stage he stopped, i got into my unit and reversed up the up the road, so that access to the truck and trailer could be made. af- ter about 30—45 minutes, the trailer started to sink even further into the edge of the road and started to pull the unit into an incline, that looked as though the unit, trailer and na- celle, were going to turn over onto their sides. at this stage, chains and tighteners that were securing the nacelle to the trailer started to snap and the nacelle slid off the trailer and landed in the bog on its side, while the unit and trailer came back onto their wheels on both sides.” som dokumentation for tabets størrelse har siemens fremlagt en uafhængig rapport af 3. sep- tember 2012 fra norman cobley associates. tabets størrelse er ikke bestridt af modparten. processuelle forhold ved fax af 29. maj 2009 sendte siemens en ansvarsmeddelelse til franck & tobiesen, hvoraf fremgår, at siemens holder franck & tobiesen ansvarlig for det tab, de led i forbindelse med uheldet. på dette tidspunkt var tabet ikke opgjort. den 26. februar 2010 udtog blandt andre siemens stævning mod franck & tobiesen, mar- train og abnormal load services ltd. ved the high court of justice i london. samtidig med indlevering af stævning i nærværende sag, blev sagen mod franck & tobiesen i england hævet. af mailkorrespondance af 19. november 2012 mellem advokat henrik thal jantzen på vegne af siemens og advokat michael villadsen på vegne af franck & tobiesen fremgår det, at siemens oplyste franck & tobiesen, at der i den i london verserende sag ville blive gennem- ført mediation i perioden 14.-29. januar 2013, og siemens opfordrede franck & tobiesen til at deltage heri. - 13 - af mediation agreement af 22. januar 2013 fremgår, at blandt andre siemens som sagsøger deltog i mediationen med de sagsøgte mar-train, abnormal load services (international) ltd. og franck & tobiesen a/s. i forlængelse af mediationen blev der indgået en forligsaftale mellem sagsøgerne, herunder siemens og de sagsøgte mar-train og abnormal load services (international) ltd., hvorefter mar-train og abnormal load services (international) ltd. be- talte sagsøgerne samlet gbp 100.000. ansvarsbegrænsning ifølge road haulage association limited 1998 (herefter rha 1998) af ovenstående forlig fremgår, at det udtrykkeligt er anerkendt mellem parterne, at aftalen mellem mar-train og abnormal load services (international) ltd. er indgået på rha 1998- vilkår. som dokumentation for, at ansvarsbegrænsningen i rha 1998 finder anvendelse i denne sag har shipping.dk fremlagt dom af 20. februar 2014 fra high court i london, hvor det er fast- slået, at franck & tobiesen har kontraheret med mar-train på rha betingelser. mar-trains method statement fra maj 2009 var vedhæftet mar-trains forsikringsoplysnin- ger, hvori der bl.a. blev henvist til rha 1998 ansvarsbegrænsning på gbp 5.000 pr. ton. endelig har frank & tobiesen fremlagt erklæring af 31. marts 2014 fra business affairs ma- nager hos rha, chrys rampley, hvoraf bl.a. fremgår: ”… 7. it is standard practice for our members to incorporate rha conditions into their contracts and agreements with their customers. the conditions are widely used throughout the road transport industry. 8. condition 11 of the rha conditions limits the freight transport operator’s liability for loss or damage to goods to the lesser of the invoice value of the lost or damaged goods or to the sum of £ 1300.00 per tonne, calculated on the gross weight of the lost, damaged or misdelivered goods. any claim for any other loss, including indi- rect or consequential loss or damage, is limited under condition 11