Case
In the above case a Danish exporter had sold goods to a Japanese buyer. For the transport of the goods from Denmark to Japan, the seller entered into an agreement with a freight forwarder pursuant to and based on the provisions of NSAB. For part of the services the freight forwarder contracted an airport operator to carry out the security checks at the airport. During the security check, the airport operator drilled holes in the box in which the goods was packed and subsequently the goods were damaged.
The seller’s cargo insurers compensated the seller for the damages and filed a lawsuit against the airport operator with a claim for compensation in the corresponding amount. The cargo insurer claimed that the liability for the damage caused by the security checks did not fall under NSAB and that the damage, in any case, was caused by gross negligence with the effect that the claim, regardless of the applicability of NSAB, could not be considered time barred in accordance with clause 28(1) NSAB, irrespective of the fact that more than one year had lapsed from the date of damage.
The airport operator, however, claimed that the security check was a commercial service performed in accordance with NSAB. Based on this, the airport operator claimed that the liability had become time barred in accordance with section 28(1) NSAB, regardless of whether the damage was caused by gross negligence. In the light of this, the airport operator claimed that clause 6(2) NSAB, i.e., that the freight forwarder has no right to invoke rules in NSAB which exonerate him from, or limit his liability, if it is proven that the freight forwarder's subcontractor, the freight forwarder himself, or its employees has wilfully or grossly negligent, caused the damage, could not be interpreted to the effect that the one-year time limitation did not apply in cases of gross negligence.
Decision
It follows from the judgment that an assignment relating to the performance of security checks, which must be carried out in accordance with public law rules, can be undertaken as a commercial service and as such must be delivered pursuant to NSAB. The court stated that it follows from clause 28(1) NSAB, that a claim against the freight forwarder must be brought within one year, as the claim has otherwise been lost and that clause 6(2) NSAB only prevents a freight forwarder from invoking provisions set out in the NSAB which exclude or limit his liability, or which change the burden of proof. On this basis and in accordance with the wording of clause 28(1) NSAB, the court found no basis for assuming that clause 6(2) NSAB, precludes the application of the limitation rule in clause 28(1) NSAB even in case of gross negligence.
The court concluded that the claim was covered by NSAB and was time barred.
Conclusion
It can initially be stated that an assignment relating to the performance of security checks can be undertaken as a commercial service and hence be delivered pursuant to NSAB. Further, the time limitation period of one year in clause 28 (1) NSAB is applicable also in cases where a damage is deemed to have been caused due to gross negligence.
Since NSAB is an optional contract term the contract parties may always agree otherwise and adjust the contract terms.
