Две судоходные линии расторгли отношения с судоходной компанией после того, как контактное лицо компании открыло собственный бизнес, конкурирующий с этой компанией. Судоходная компания оказывала финансовые услуги линиям в 1997 — 2000 годах. Верховный Суд Дании не обнаружил в этой ситуации правонарушения со стороны судоходных линий. Было установлено, что между судоходными линиями и компанией не существовало договора.
Two shipping lines terminated a long lasting cooperation with a shipping company after their primary contact person in the shipping company started his own competing business. The Danish Supreme Court did not find the shipping lines to be liable to the shipping company.
During the years 1997 — 2000 a shipping company rendered financial services to the establishment of two shipping lines. The shipping lines originated from a company that an employee of the shipping company had previously had as a client. This employee continued as the primary point of contact of the shipping lines and he was in charge of the daily management of the ships engaged by the shipping lines.
Jointly, the two shipping lines became the most important customer of the shipping company and accounted for 90% of the total turnover of the shipping company. The shipping lines and the shipping company did not have – and never had – a written agreement regarding their cooperation.
Early in 2008 the contact person was negotiating with the shipping company about his position with the aim of becoming a partner. Several meetings were held, but the parties could not agree on the exact terms and disputes arose. After the last meeting the contact person was no longer an employee of the shipping company. The meeting ended rather suddenly and it was not clear whether the contact person had been dismissed or whether he handed in his resignation himself.
During the term of his employment the contact person had had a very close cooperation with the shipping lines. This was among other things due to him being the only one in the company who had expert knowledge about the particular business area of the shipping lines. Shortly after the contact person left the shipping company he started his own competing business. Without notice the shipping lines terminated their cooperation with the shipping company and moved all their assignments to the new business owned by the contact person.
The shipping company held that the contact person was not allowed to initiate competing business and that the termination of the cooperation was a breach of contract. The shipping company and the contact person settled their dispute, according to which the contact person was to pay a compensation of DKK 700,000. However, the Court was hereafter to decide whether the shipping lines had incurred separate liability towards the shipping company.
Justified termination of the cooperation?
Neither the Danish Maritime and Commercial High Court nor the Danish Supreme Court found that the shipping lines had supported the contact person with the start-up of his own competing business. Thus, the question before the courts was whether the shipping lines’ sudden termination of the cooperation was justified.
The Danish Maritime and Commercial High Court took the view that the shipping company had dismissed the contact person, and that they subsequently had not attempted to bring him back or tried to find another employee with similar qualifications. The special expertise of the contact person was so essential to the shipping lines that the shipping company’s dismissal of the contact person justified the shipping line’s termination of the cooperation.
The Danish Supreme Court on the other hand placed emphasis on the fact that shipping company and the shipping lines never signed a written contract, and thereby they never agreed upon any exclusivity or notice of termination. Thus, the Danish Supreme Court concluded that the shipping lines were entitled to terminate the cooperation without notice having no regard to the parties’ long-lasting cooperative relationship.
A person or a company can demonstrate a certain behavior or conduct that leads to him entering into a contract without having expressed any explicit word of agreement – neither written nor orally. This is called an implied acceptance or an implied contract. It can be very difficult to prove the existence of implied contracts – just as oral agreements. In this case the Danish Supreme Court found that no contract existed between the parties. Hence the parties had not agreed on exclusivity or notice of termination.
When two parties start to cooperate it is crucial that they draw up a written contract describing their rights and obligations. Further, it is of great importance that they revise and update the contract if the terms of the cooperation change in any way. This applies no matter how long-lasting the cooperation between the parties has been.
[Judgment by the Supreme Court on 5 April 2013. Case no. 82/2011 (second department)]
Авторы: Aage Krogh, Pia Mark, Lisa Brændstrup