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Action for indemnity (Art. 3(6 bis)) France Cour de Cassation (Ch. Com) 15 March 2005, M.me Maurel v. M. Tessah, Panalpina France Transports Internationaux and Delmas (2005 DMF 536)
M. Tessah purchased from Mrs. Maurel a press for delivery
at Douala. Mrs. Maurel requested Panalpina France Transports Internationaux to
perform the carriage for delivery of the press at destination by 14 January 1998
and Panalpina sub-contracted the carriage to Delmas. Since the press never arrived
at destination the buyer brought an action against the seller for the avoidance
of the contract. The seller on 22 November 1999 brought an action for indemnity
against Panalpina and Delmas. Held, by the Corte di Cassazione, that: [1] The action for indemnity reference to which is made in article 32(2) of law 18 June 1966 (corresponding to article 3(6 bis) of the Hague-Visby Rules) relates to the situation where the main action is based on a contract and therefore, an action brought against the carrier by the seller who is sued by the buyer because the goods sold never arrived at destination is the main action reference to which is made in article 31(1) (corresponding to article 3, paragraph 6, sub-paragraph 4 of the Hague-Visby Rules). Amount recoverable (Art. 4. 5(b)) Italy Corte di Cassazione 27 October 1998, n. 10692, Adriatic Shipping Company S.r.l. v. Continentale Italiana S.p.A.–The “Mirna” (2000 Dir. Mar. 505) A shipment of cereals in bulk was carried from Port Sudan to Venice on board the m/v Mirna. Upon its discharge in Venice it was found that foreign materials were mixed with cereals and that a shortage had occurred. The consignees, Cerealmangimi S.p.A., sued the agents of the carrier before the Tribunal of Venice claiming damages and stating inter alia that they had to replace a part of the cargo by purchasing other goods of the same quality. The claim was rejected in part by the Tribunal of Venice and its judgment was affirmed by the Court of Appeal of Venice. Cerealmangimi then appealed to the Supreme Court. Held, by the Corte di Cassazione, that: (1) The liability of the carrier is not excluded by the lack of proof by the consignee that he has replaced the goods lost or damaged with other goods or that he has incurred an expense for such purpose. The invoice price of the goods can be presumed to correspond to their market price. England J. C. MacWilliams Co. Inc. v. Mediterranean Shipping Company S.A. – The “Rafaela S.” (C.A.) [2003] EWCA Civ. 556; [2003] 2 Lloyd's Rep. 113; 2003 A.M.C. 2035 Four containers with printing machinery were carried from Durban to Felixstowe on the m/v Rosemary and then from Felixstowe to Boston, their final destination, on the m/v Rafaela S. Both vessels were owned by or demise chartered to Mediterranean Shipping Co. S.A. (MSC) of Geneva. A straight bill of lading was issued by MSC at Durban. On the way to Boston the machinery was badly damaged. One of the issues decided by the arbitrators to which the dispute was submitted was whether the straight bill of lading was a bill of lading or a similar document of title within the English Carriage of Goods by Sea Act 1971 which gives to the Hague-Visby Rules the force of law. If the Hague-Visby Rules did not apply, the US Cogsa limit of liability of US$ 500 per package would have applied. The arbitrators decided that this was not the case and their decision was upheld by the Commercial Court. Permission was given to the claimants to take a second appeal to the Court of Appeal Held, by the Court of Appeal, that:
Germany The MV "New York Express", Oberlandesgericht Hamburg (Court of Appeal) 2 November 2000, (Transportrecht 2001, p. 87)* Two containers with machinery were carried from Bremerhaven to Newark/New Jersey on the MV New York Express. The carrier issued an express cargo bill. The express cargo bill provided for the application of German law. After discharging had been completed at Newark and in the course of the handling of the cargo on the terminal, the terminal operator being the carrier's subcontractor, part of the cargo was damaged. The consignee claimed damages from the carrier under the contract of carriage. The issue to be decided by the Court was whether the express cargo bill constituted a bill of lading.
* By the courtesy of Dr. Cristoph Horbach, Lebuhn & Puchta Rechtsanwälte, Hong Kong Special Administration Region Carewins Development (China)
Limited v. Bright Fortune Shipping Limited and Carewins Development (China) Limited
v. Hecny Shipping Limited, High Court of the Hong Kong Special Administrative
Region, 27 July 2006 In March 2003 Carewins Development (China) Limited
of Hong Kong gave instructions to Bright Fortune Shipping Limited and to Hecny
Shipping Limited for the carriage from Hong Kong to Los Angeles of 45 containers
of footwear products. All bills of lading were issued by Bright Fortune on its
form but some were signed by Bright Fortune "as agents only" and on
the reverse side the clause headed "Definitions" so provided, inter
alia: Held, by the High Court of the Hong Kong Special Administrative Region, that: [1] A straight
bill of lading must be surrendered to the carrier in order obtain delivery of
the goods. Burden of proof (Art. 3.(1)-(2); Art.4.(1)-(2)) United States Steel Coils, Inc. v. M/v "Lake Marion", in rem; Lake Marion, Inc. and Bay Ocean Management, Inc., in personam - v. Western Bulk Carriers K/S Oslo - v. Itochu International, Inc. United States Court of Appeals for the Fifth Circuit, May 13, 2003 (2003 AMC 1408) Steel Coils, Inc., an importer of steel products
with its principal office in Deerfield, Illinois, ordered flat-rolled steel from
a steel mill in Russia. Itochu International, Inc., which then owned ninety per
cent of the stock of Steel Coils, purchased the steel and entered into a voyage
charter with Western Bulk Carriers K/S Oslo for the m/v Lake Marion to
import the steel to the United States. Western Bulk had time chartered the vessel
from Lake Marion. Inc. As Lake Marion, Inc.'s manager, Bay Ocean Management,
Inc. employed the master and crew of the vessel. Held, by the U.S. Court of Appeals for the Fifth Circuit, that: (1)
COGSA provides a complex burden-shifting procedure. Initially, the plaintiff must
establish a prima facie case by demonstrating that the cargo was loaded in an
undamaged condition and discharged in a damaged condition and for the purpose
of determining the condition of the goods at the time of receipt by the carrier,
the bill of lading serves as prima facie evidence that the goods were loaded in
the condition therein described. If the plaintiff presents a prima facie case,
the burden shifts to the defendants to prove that they exercised due diligence
to prevent the damage or that the damage was caused by one of the exceptions set
forth in section 1304(2) of COGSA, including "[p]erils, dangers, and accidents
of the sea or other navigable waters" and "[l]atent defects not discoverable
by due diligence." If the defendants show that the loss was caused by one
of these exceptions, the burden returns to the shipper to establish that the defendants'
negligence contributed to the damage. Finally, if the shipper is able to establish
that the [defendants'] negligence was a contributory cause of the damage, the
burden switches back to the [defendants] to segregate the portion of the damage
due to the excepted cause from that portion resulting from the carrier's own negligence. Cargoworthiness (Art. 3. 1(c)) Italy Court of Appeal of Venice 1 March 1999, Plaumann & Co. GmbH v. Adriatica di Navigazione - The “Egizia” (2001 Dir. Mar. 1450) Plaumann and Co. GmbH of Hamburg purchased 480 tons onions which were loaded in Alexandria, Egypt on the m/v Egizia of Adriatica di Navigazione S.p.A. and carried from Alexandria to Trieste. A clause was inserted in the bills of lading to the effect that the consignment consisted of perishable goods and that the vessel was not responsible for damages. At discharge the goods were found to be seriously damaged and their sale for human consumption was denied. Plaumann and Co. commenced proceedings before the Tribunal of Venice against Adriatica di Navigazione claiming damages. The claim was rejected by the Tribunal of Venice and Plaumann and Co. appealed to the Court of Appeal of Venice. Held, by the Court of Appeal of Venice, that: (1) The bill of lading clause which exonerates the carrier from liability in respect of damage to perishable goods stowed in the holds is null since it is in conflict with Art. 3 r. 1(c) of the Hague-Visby Rules which expressly provides that the carrier has the duty to make the holds fit and safe for the reception, carriage and preservation of the goods, as well as with Art. 3 r. 8 which provides that any clause relieving the carrier from liability is null and void. England Effort Shipping Co. Ltd. v. Linden Management S.A. and Another–The “Giannis NK” House of Lords 22 January 1998 ([1999] 1 Lloyd’s Rep. 337). In November 1990 a cargo of ground-nut extraction mill pellets was loaded into hold 4 of the m/v Giannis NK. Cargoes of bulk wheat pellets had been loaded into other holds at previous loading ports. The ground-nut pellets were fumigated after loading and an SGS certificate was issued. The vessel then crossed the Atlantic, discharged at St. Juan in Puerto Rico part of the grain pellets and then proceeded to Rio Haina in the Dominican Republic to discharge the balance of the cargo. Upon arrival it was inspected by the Agricultural Authorities and live insects and shed skins were found in the cargo and the vessel was quarantined. After fumigation live insects were still found in the vessel holds and the vessel was ordered to leave the port with both the ground-nut cargo and the wheat cargo still on board. Then the vessel sailed back to St. Juan and after examination of the cargo by the State Department of Agriculture a notice was served on the owners requiring them either to return the cargo to its country of origin or to dump it at sea. The vessel then proceeded out to sea and dumped both the ground-nuts and the balance of the wheat still on board. The owners claimed against the charterers and the shippers stating the ground-nuts cargo was a dangerous cargo by reason of the fact that it contained khapra beatle and claimed that they could recover from the shippers pursuant to art. IV, r. 6 of the Hague Rules which were incorporated into the contract of carriage evidenced by the bill of lading. Judgment in favour of the claimant was issued by the Commercial Court ([1994] 2 Lloyd’s Rep. 171) and the decision of the Commercial Court was affirmed by the Court of Appeal ([1996] 1 Lloyd’s Rep. 577). Leave to appeal to the House of Lords was granted. Held, by the House of Lords, that: (1) The word “dangerous” in the expression “goods of … [a] dangerous nature” must be given a broad meaning. Goods may be dangerous if they are dangerous to other goods, even though they are not dangerous to the vessel itself. A groundnut cargo is of a dangerous nature if it is liable to give rise to the loss of the other cargo loaded on the same vessel by dumping at sea. The liability of the shipper under article 4(6) of the Hague Rules is strict irrespective of fault or neglect on his part. United States Contship Containerlines, Ltd. v PPG Industries, Inc. - The "Contship France", United States Court of Appeals for the Second Circuit 21 March 2006 (not yet reported) PPG Industries, Inc. shipped 512 drums of Cal Hypo aboard the Contship France, operated by Contship Containerlines, Inc. which sailed from Charleston, South Carolina in late September 1997. Upon the ship's arrival in Tahiti, a fire broke out. The source of the fire was one batch of Cal Hypo, consisting of 80 drums each weighing 425 pounds. The particular type of Cal Hypo at issue, designated "UN 2880" by Department of Transportation regulations, is known to be flammable. When exposed to heat at or above its "critical temperature," Cal Hypo will generate heat from decomposition faster than the heat can dissipate, resulting in a "thermal runaway" that can ignite surrounding materials. The critical temperature of a given drum of Cal Hypo depends in part on the volume of the drum. Contship brought proceedings against PPG in the US District Court, Southern District of New York, claiming damages. Contship conceded awareness (based on published specifications) that Cal Hypo could ignite at temperatures over 55°C; and PPG conceded awareness that the cargo could ignite at lower temperatures. After a bench trial, the district court found that the proximate cause of the fire was Contship's failure to consider the impact of heat on the cargo when it stowed the cargo in a spot that sustained temperatures of at least 47°C. On appeal, Contship argued that the district court erred in dismissing its claims of strict liability and duty to warn. Held, by the United States Court of Appeals for the Second Circuit, that: [1] A carrier cannot invoke
strict liability if it knows that a cargo poses a danger and requires gingerly
handling or stowage, and nevertheless exposes the cargo to the general condition
that triggers the known danger, regardless of whether the carrier is aware of
the precise characteristics of the cargo. American Home Assurance Co. v. M/v Tabuk et Al., United States District Court, Southern District of New York, November 5, 2001 (2002 AMC 184) One container in which one hundred missiles, placed on pallets had been stowed, was loaded on the deck of the m/v Tabuk for carriage from Wilmington to Kuwait. In the course of the voyage the container was lost overboard during a storm. American Home Assurance Co. indemnified the shipper, Raytheon System Company and brought an action against the m/v Tabuk and the carrier, United Arab Shipping Company, claiming US$ 2,560,250.00 in damages, stating that the package limitation was not applicable because the stowage of the container on deck was an unreasonable deviation and in any event the deviation was per se unreasonable, the total number of containers on deck exceeded that contemplated in the stowage manual of the ship and the container was improperly secured. Held, by the U.S. District Court, Southern District of New York, that:
Belgium Cour de Cassation 1 December 2000, The “Kintampo” (www.cass.be) Two containers were carried on deck by the Kintampo without this having been mentioned in the bill of lading. The consignee claimed damages in respect of loss of or damage to the cargo. By judgment of 24 February 1997 the Cour d’Appel of Antwerp held that the failure by the carrier to declare in the bill of lading that the cargo had been loaded on deck prevented him to invoke the limit of liability. The carrier appealed to the Supreme Court. Held, by the Cour de Cassation, that: (1) Article 91A paragraph I(c) of book II of the Code of Commerce, corresponding to article 1(c) of the Hague-Visby Rules whereby the provisions of the Convention are not applicable to goods which by the contract are stated as being carried on deck and are so carried requires such declaration only in order to protect the third party holder of the bill of lading and not in order to allow the carrier to benefit of the limit of liability. The decision that the carrier who carries goods on deck without so stating in the bill of lading cannot benefit of the limitation of liability is not in conflict with article 91 of book II of the Code of Commerce which gives effect to the Hague-Visby Rules. France Court of Appeal of Orleans 9 April 2004, Ahlron MTE and Lloyd's of London v. Alstom Power Turbomachines and Others (2004 DMF 549).
GEC-Alsthom and GEC-Alsthom Electromécanique instructed
a forwarding agent, Someport Walon, to procure the carriage of parts of an electrical
plant, including two steam turbines, from Bourget (France) to Kawas (India). Several
cases were carried by road to Antwerp and loaded on board the Ethnos under
time charter to Maritime Transport Entreprises (subsequently called Alhron MTE)
who issued, through its agent Navitainer, a clean bill of lading. During the passage
the vessel went through a storm in the Gulf of Gascogne and the content of one
of the cases, loaded on deck, was seriously damaged. Alstom Power Turbomachines,
to which the rights of GEC-Alsthom and GEC-Alsthom Electromécanique had
been assigned, and its insurers commenced proceedings against Ahlron MTE and Someport
Walon in the Tribunal de Commerce of Paris in order to obtain the payment of the
damages suffered by the cargo.
Portugal Supremo Tribunal de Justiça 31 May 2001, Victor Hugo Garcia Hierro Cardinali v. Vieira & Silveira Transporte Maritimos S.A. and Empresa do Cabresante Lda. – The “Alfama” (unreported) The owners of the Circ Cardinali instructed an agent in Funchal, Empresa Cabresante, to load on board the m/v Alfama, owned by Vieira & Silveira Transporte Maritimos S.A. various materials of the circ in view of intended performances in Lisbon. All such materials, including a trailer, were loaded on deck. In particular, the trailer had necessarily to be stowed on deck owing to its dimensions. During the passage the weather conditions worsened and on account of a sudden rolling movement of the vessel, the trailer fell overboard. Held, by the Supremo Tribunal de Justiça, that: (1) Pursuant to Art. 4(2)(q) of the Hague Rules, which is made applicable to deck cargo by Art. 9(3) of D.L. 352/86 when stowage on deck is made with the consent of the shipper, and of Articles 798 and 799 Civil Code the carrier is not liable for the loss of cargo stowed on deck on account of bad weather if he proves that such loss is due to deficiencies of the cargo that the carrier did not know and could not have known by the exercise of the diligence of an average man. United States Steel Coils, Inc. v. M/v “Lake Marion” et Al., United States District Court, Eastern District of Louisiana, November 23, 2001 (2002 AMC 1680)Western Bulk voyage chartered the Lake Marion
to Itochu International or its guaranteed nominee. The parties used a standard
GENCON form with a typewritten “rider”. Under Clause 2, the owner warranted
that the vessel would be seaworthy and equipped to carry the cargo. Clause 31
of the rider incorporates a number of standard shipping terms into the charter
party as if written in extenso. In particular, Clause 31 incorporates the USA
Paramount Clause. Held, by the U.S. District Court, Eastern District of Louisiana, that:
The vessel interests appealed and Steel Coils and Western Bulk cross-appealed from the judgment of the U.S. District Court. Duty to load and discharge the cargo (Art. 3 (2)) England Jindal Iron and Steel Co. Ltd. and Others v. Islamic Solidarity Shipping Company Jordan Ltd. - The "Jordan II", (H.L.) 25 November 2004 [2005] 1 Lloyd's Rep. 57; 2005 AMC 1
By a charterparty on the Stemmor form dated 4 December 1997
the owners chartered the Jordan II to TCI Trans Commodities A.G. for a
voyage from Mumbai in India to Barcelona and Motril in Spain. Jindal Iran and
Steel Company Limited and Hiansa S.A. were respectively the sellers and purchasers
of 435 steel coils. The goods were shipped from Mumbai aboard the vessel as evidenced
by two bills of lading on the Congenbill form, both dated 2 January 1998, which
were issued on behalf of the shipowners at Mumbai. The bills of lading contained
or evidenced contracts of carriage from Mumbai to Motril. The bills of lading
named Jindal Iron and Steel Company Limited as the shippers and Hiansa S.A. as
consignees and incorporated the voyage charterparty. The Hague-Visby Rules as
enacted in Indian legislation were applicable to this shipment. They correspond
to the draft Hague Rules as enacted in the United Kingdom by the Carriage of Goods
by Sea Act 1924, which in material respects are the same as the Hague-Visby Rules
scheduled to the Carriage of Goods by Sea Act 1971. Held, by the House of Lords, that:
Entry into force of the 1968 and 1979 Protocols (Art. 13 of the 1968 Protocol and Art. VIII of the 1979 Protocol) Italy Corte di Cassazione 14 February 2001, No. 2155, Brendani AB v. Magazzini Generali & Frigoriferi S.p.A. (2002 Dir. Mar. 227). A consignment of paper rolls carried on the m/v Lech was discharged in Naples in damaged conditions. The consignee sued the carrier in Naples. The Tribunal of Naples held the carrier liable for the damage and its decision was affirmed by the Court of Appeal of Naples who found that the provisions of the Hamburg Rules applied, since its ratification had been authorized by Italy with Law 25 January 1983, No. 40. The carrier appealed to the Supreme Court. Held, by the Corte di Cassazione, that: (1) The 1968 and 1979 Protocols to the 1924 Bill of Lading Convention entered into force in Italy on the same day when such Convention ceased to be effective following its denunciation. Evidentiary value of the bill of lading (Art. 3. 4) England The Owners of the cargo lately laden on board the ship "David Agmashenebeli" v. The Owners of the ship "David Agmashenebeli" (High Court of Justice - Q.B.D. (Admiralty Court)) [2003] 1 Lloyd's Rep. 92. On 10 April 1995
Agrosin Pte Ltd. of Singapore sold to Grand Prestige Enterprises of Hong Kong
35,000 metric tons urea in bulk C&F Free Out CQD one safe berth one safe port
South China for delivery during May 1995 and commenced negotiations for the charter
of the m/v David Agmashenebeli from Baff Shipping, Riga. The latter
company on 19 April 1995 entered into a voyage charter under which it chartered
the vessel from Meezan Shipping and Trading Inc. of Toronto who had time chartered
it from its owners Georgian Shipping Company of Valletta, Malta. Clause 45 of
the charter party between Meezan and Baff provided: Held, by the Queen's Bench Division (Admiralty Court), that:
Germany Oberlandesgericht Hamburg (Court of Appeal), 9 November 2000 (Transportrecht 2001, page 92)* A lot of wheat was carried from Tianjin to Rotterdam. The carrier issued a bill of lading providing for the application of German law stamped with "said to weigh" and containing a "free in liner out, loaded and stowed free in at owners' nominated berth" clause. The consignee claimed damages from the carrier under the bill of lading because the carrier had delivered less wheat than described in the bill of lading. The issue to be decided by the court was whether the carrier could rely on the stipulations contained in the bill of lading so as not to be responsible for the difference in weight.
* By the courtesy of Dr. Cristoph Horbach, Lebuhn & Puchta Rechtsanwälte, Excepted perils – Act of public enemies (Art. 4.2(f)) United States Anvil Knitwear, Inc. v. Crowley American Transport, Inc. et Al. (United States District Court, Southern District of New York, 27 July 2001, 2001 AMC 2382) In May, 1999, Anvil Knitwear, Inc. contracted with Crowley American Transport, Inc. to transport shipments of tee-shirts from a manufacturing plant in Santa Barbara, Honduras, C.A., to its United States’ plant in South Carolina. Pursuant to this contract, Crowley issued a bill of lading on June 18, 1999, covering the 786 cartons of cotton tee-shirts that were packed into a container. The bill of lading covered the transportation of the container from Santa Barbara, Honduras, to the load port, Puerto Cortes, Honduras, the ocean transportation via the Ambassador, and the ultimate delivery in South Carolina. The bill of lading stated that the Carriage of Goods by Sea Act of the United States, 46 U.S.C. app. §1300, et. seq. would govern the contract throughout the entire time Anvil’s goods were in Crowley’s possession. The “exceptions clause” of the bill of lading set out a long list of events for which Crowley could not be held liable, including hijacking. Crowley’s local agent, Transportes Hispanos, picked up Anvil’s cartons on or about June 16, 1999 from Anvil’s vendor, M.J. Honduras S.A. Shortly after departing from the vendor’s plant, the truck carrying the shipment was hijacked and the goods were stolen. Both parties have stipulated to the fact the Transportes Hispanos driver, Mr. Ramon Enrique Rosales, was not in any way involved with the hijacking. Held, by the U.S. District Court, Southern District of New York, that: (1) Hijacking, mentioned in an exception clause of a bill of lading, is not sufficiently similar to some COGSA §1304(2) exceptions and more specifically to the exception under §1304(2(f) – act of public enemies – so to fall thereunder and, therefore, it falls under §1304(2)(q). Therefore the carrier has the burden of proving the absence of fault. Excepted perils – Actual fault or privity (Art. 4. 2(q)) Japan Court of Appeals of Tokyo 1 October 2001, Tokyo Kaijo-kasai Hoken KK. v. Coastal Magic Shipping Ltd. (Kin’yu Shoji Hanrei no. 1132, p. 16)* Fish meal carried in bags from Ecuador to Japan was found on arrival damaged partly by heat and partly by moisture and mould. The consignee sued the carrier claiming damages. The carrier alleged that the damage had been caused by inherent defect of the cargo because of the insufficient antioxidant added to the fish meal. The consignee denied that allegation and stated that the damage had been caused by rain water that entered into the hold due to the improper closure of the hatches and because of the improper stowage of the cargo. Held, by the Court of Appeals of Tokyo, that: (1) The carrier is exonerated from liability pursuant to Art. 4(2)(q) in respect of damage by mould to fish meal stowed in bulk in the lower deck since the IMDG code permits fish meal of Class 9 to be so stowed. * A summary of this judgment has been kindly supplied by Prof. Souichirou Kozuka of the Sophia University, Tokio - s-kozuka@hoffman.cc.sophia.ac.jp France Cour d'Appel of Rouen 23 May 2001, Hanjin Shipping Co. Ltd. v. Thyssen Ascenseurs S.A. (2002 DMF 44). A container with parts of elevators was shipped by Thyssen Ascenseurs S.A. on the m/v Hanjin San Francisco of Hanjin Shipping Co. Ltd. for carriage to Haiphong in China. The container was transhipped at Hong Kong on the Vosa Carrier but never arrived at destination. It was subsequently found that it had been confiscated by a Chinese Coastguard vessel and that such confiscation had been illegal. Thyssen Ascenseurs S.A. commenced proceedings against Hanjin Shipping Co. Ltd. in the Tribunal de Commerce of Le Havre, whose judgment, allowing the claim, was appealed by the carrier.
Excepted Perils – Burden of proof (Art. 4. 2) Italy Tribunal of Genoa 4 December 2002, Llloyd Italico Assicurazioni S.p.A. v. Grandi Traghetti S.p.A. di Navigazione – m/v “Maringa” [2004] Dir.Mar. 1473 A
consignment of 1995 bags of coffee, stuffed in containers supplied by the carrier,
was loaded at Matadi on the m/v Maringa and carried to Genoa and then by
rail from Genoa to the inland terminal of the carrier at Rivalta Scrivia. Held, by the Tribunal of Genoa, that:
Court of Appeal of Genoa 6 June 2002, Ignazio Messina & Co. S.p.A. v. Pietro Trombi – m/v “Jolly Rubino” [2004] Dir.Mar. 191 On
9 May 1995 a car owned by Pietro Trombi was loaded on the m/v Jolly Rubino
in Genoa. Place of destination was Abidjan, where the vessel was supposed to call
in the outward voyage. The car was however discharged heavily damaged when the
vessel called at Abidjan in the homeward voyage. Held, by the Court of Appeal of Genoa, that:
United States United States of America v. Ocean Bulk Ships, Inc., m/v “Overseas Harriette” and m/v “Overseas Marilyn” (United States Court of Appeals-5th Circuit 10 April 2001) (2001 AMC 1487) Between 1994 and 1996, the United States, through its Commodity Credit Corporation (CCC), and with the assistance of several private relief organizations, shipped cargoes to famine-stricken areas of Africa on behalf of the Agency for International Development (AID). The cargoes were shipped under various charter parties made expressly subject to COGSA on the m/v Overseas Harriette and the m/v Overseas Marilyn, vessels owned by the defendants, Ocean Bulk Ships, Inc., and Transbulk Carriers, Inc. The shipments included a variety of foodstuffs such as vegetable oil, corn, and bulgur wheat, which were shipped to the African ports of Mombasa, Kenya; Beira and Maputo, Mozambique; Freetown, Sierra Leone; and Tema, Ghana. Clean bills of lading were issued for each shipment after the cargo was stowed, indicating that the cargo was received by the carrier in good condition. Unfortunately, the goods were not received in the same quantity or quality when discharged in Africa. Survey reports documenting the loss and damage indicated several problems. Some parts of the cargo were simply not received at all. Some parts of the cargo were received in a damaged and unusable condition. The total amount of documented loss and damage to the cargo was $203,319.87. In December 1998, the United States filed the first of five lawsuits, seeking damages for the lost and damaged cargo under COGSA. In February 1999, these suits were consolidated. In September 1999, the matter was tried to the bench. In December 1999, the district court entered judgment in favor of the United States for the limited sum of $7,300.08, the amount of damage that the defendants admit occurred prior to discharge. The judgment was appealed. Held, by the U.S. Court of Appeals for the 5th Circuit, that: (1) There does not appear to be any consensus among circuits, or even in the 5th Circuit, concerning which Cogsa party bears the burden of persuasion (and the risk of non persuasion) with respect to the applicability of the statutory exceptions codified at § 1304(2)(a)-(p) once the shipper makes out a prima facie case. (2) The exception codified at § 1304(2)(q) requires the carrier to bear the burden of persuasion. (3) Without regard to whether the carrier’s rebuttal burden under § 1304(2)(n) is one of production or persuasion, the law is absolutely clear that the carrier must do more than offer mere speculation as to the cause of lost or damaged cargo. When the carrier’s negligence is at least a concurrent cause of the loss, the carrier bears the burden of establishing which portion of the loss is not attributable to its negligence. Excepted perils - Fire (Art. 4.2 (b) England Papera Traders Co. Ltd. and Others v. Hyundai Merchant Marine Co. Ltd. and Another - The “Eurasian Dream” [2002] 1 Lloyd’s Rep. 719.On July
23, 1998, a fire started on deck 4 of the pure car carrier Eurasian Dream
while in port at Sharjah. The fire, which was not contained or extinguished by
the master and crew, eventually destroyed or damaged the vessel’s cargo of
new and second-hand vehicles and rendered the vessel itself a constructive total
loss. Held,
by the Queen’s Bench Division (Commercial Court), that: Excepted perils – Inherent vice (Art. 4. 2(m)) Japan Court of Appeals of Tokyo 1 October 2001, Tokyo Kaijo-kasai Hoken KK. v. Coastal Magic Shipping Ltd. (Kin’yu Shoji Hanrei no. 1132, p. 16) * Fish meal carried in bags from Ecuador to Japan was found on arrival damaged partly by heat and partly by moisture and mould. The consignee sued the carrier claiming damages. The carrier alleged that the damage had been caused by inherent defect of the cargo because of the insufficient antioxidant added to the fish meal. The consignee denied that allegation and stated that the damage had been caused by rain water that entered into the hold due to the improper closure of the hatches and because of the improper stowage of the cargo. Held, by the Court of Appeals of Tokyo, that: (1) The excepted peril under Art. 4(2)(m) cannot be invoked to the extent that the damage to a cargo of fish meal has been caused by rain entered into the hold due to the hatch cover having not been properly closed. * A summary of this judgment has been kindly supplied by Prof. Souichirou Kozuka of the Sophia University, Tokio - s-kozuka@hoffman.cc.sophia.ac.jp Scotland Albacora S.r.l. v. Westcott & Laurence Line Limited (Inner House, Court of Session, Edinburgh, 23 March 1965 (reported 1965 S.L.T. 270) * Following a voyage from Glasgow (Scotland) to Genoa (Italy) a cargo of fish shipped on board the m.v. Maltasian was found to be damaged. The bills of lading provided that the liability of the carrier would be determined by the Hague Rules contained in the 1924 Convention on Bills of Lading. The damage was caused by bacteria within the fish cargo. The bacteria, although present while the fish were alive, multiplied when temperature in the holds increased. The issue arose as to whether the cargo had been properly and carefully carried by the vessel in terms of Article 3 of the Convention; and whether the carrier might benefit from the exception contained in Article 4 of the Convention as “damage arising from inherent defect, quality or vice of the goods”. Held, by the Court of Session (Inner House), that: (1) The damage to cargo was caused by ‘inherent vice’ within the meaning of the 1924 Convention; the Defenders were not negligent in the carriage, and accordingly were not liable to the shipper for any losses sustained. * The synopsis of this decision has been kindly prepared by Ed Watt, LLB (Hons) LLM, Solicitor, Henderson Boyd Jackson W.S., 19 Ainslie Place, Edinburgh EH3 6AU, UK. Fax +44 131 225.2086 – E-mail: e.watt@HBJ.co.uk – Internet: www.shippinglawyer.com Excepted perils - Latent defects (Art. 4.2(p)) Italy Corte d’Appello of Genoa 28 December 1998, Hori Maschinen und Anlagen GmbH v. Tarros S.p.A.–The “Vis” (2000 Dir. Mar. 538) A consigment of potatoes, loaded at Tripoli, Lybia on the m/v Vis of Tarros S.p.A., arrived to La Spezia, Italy in damaged conditions owing to the excessive duration of the voyage caused by the breakdown of the vessel’s engine. The consignees, Hori Machinen und Anlagen GmbH, sued Tarros before the Tribunal of Genoa claiming damages. The judgment of the Tribunal, allowing a very small amount to the claimant, was appealed both by the claimant and by the carrier who alleged that the engine breakdown was due to a latent defect. Held, by the Corte d’Appello of Genoa, that: (1) Failing the proof that before sailing it has carried out all necessary checks in respect of the conditions of the engine, the carrier cannot invoke, in order to exonerate himself from liability, the possibility that the damage occurred after the commencement of the voyage was due to a latent defect. Excepted perils – Perils of the Sea (Art. 4. 2(c)) Australia Great China Metal Industries Co. Ltd. v. Malaysian International Shipping Corp.–The “Bunga Seroja” (High Court, 22 October 1998, 1999 AMC 427): A consignment of 40 cases of aluminium can body in coils loaded in Sydney on board the m/v Bunga Seroja was partly damaged during the passage from Sydney to Keelung, Taiwan on account of heavy weather. Great China Metal Industries Co. Ltd., to which the property in the goods had passed, claimed damages from the carrier, Malaysian International Shipping Corp. but the claim was rejected by the trial Judge whose decision was affirmed by the New South Wales Court of Appeal. The claimant appealed to the High Court of Australia contending that the exception of perils of the sea did not apply because damage to the cargo resulted from sea weather conditions which could reasonably be foreseen and guarded against. The question to which the submission primarily was directed was the meaning and effect of art. 4 r. 2(c) of the Hague Rules. Held, by the High Court of Australia, that: (1) The perils of the sea exception cannot be limited to those events which are beyond the ordinary experience of mariners or that are wholly unforeseen or unpredicted. France Cour d'Appel of Aix-en-Provence 14 May 2004, Compagnie Marocaine de Navigation v. Comitran, Office de Commercialisation et d'Exportation and Covea Fleet - The "Al Hoceima" (2005 DMF 322) In March 1987 the
Moroccan company Office de Commercialisation et d'Exportation-OCE loaded at Tangiers
on board the Al Hoceima, of Compagnie Marocaine de Navigation-COMANAV 47
trailers with its merchandise. The trailers were owned by Rentco France and had
been let by Rentco to OCE. Held, by the Cour d'Appel of Aix-en-Provence, that:
-- United States Steel Coils, Inc. v. M/v “Lake Marion”, et Al., United States District Court, Eastern District of Louisiana, November 23, 2001 (2002 AMC 1680) Western Bulk voyage chartered the Lake Marion to Itochu International
or its guaranteed nominee. The parties used a standard GENCON form with a typewritten
“rider”. Under Clause 2, the owner warranted that the vessel would be
seaworthy and equipped to carry the cargo. Clause 31 of the rider incorporated
a number of standard shipping terms into the charter party as if written in
extenso. In particular, Clause 31 incorporated the USA Paramount Clause. Held, by the U.S. District Court, Eastern District of Louisiana, that:
Steel Coils, Inc. v. M/v "Lake Marion", in rem; Lake Marion, Inc. and Bay Ocean Management, Inc., in personam - v. Western Bulk Carriers K/S Oslo - v. Itochu International, Inc. United States Court of Appeals for the Fifth Circuit, May 13, 2003 (2003 AMC 1408) The vessel interests appealed from the judgment of the US District Court and Steel Coils and Western Bulk cross-appealed. Held, by the U.S. Court of Appeals for the Fifth Circuit, that:
Excepted perils - Seaworthiness as an “overriding obligations” (Art. 4. 2) England Paper Traders Co. Ltd. and Others v. Hyundai Merchant Marine Co. Ltd. and Another - The "Eurasian Dream" (2002) 1 Lloyd's Rep. 719. On
July 23, 1998, a fire started on deck 4 of the pure car carrier Eurasian Dream
while in port at Sharjah. The fire, which was not contained or extinguished by
the master and crew, eventually destroyed or damaged the vessel’s cargo of
new and second-hand vehicles and rendered the vessel itself a constructive total
loss. Held, by the Queen’s Bench Division (Commercial Court), that:
Identity of the carrier (Art. 1(a)) France Cour de Cassation 5 November 2003, Compagnie Maritime d'Affrètement v. Power Shipping Company - The "Oriental Knight" (2004 DMF 368) On 14 June
1992 several containers in which drums of phosphorus were stuffed were loaded
in Hong Kong on board the Oriental Knight by Power Shipping Company.
Court of Appeal of Aix-en-Provence 25 April 2005, Möller A.P. v. GIE Réunion Européenne and Others - The "Christian Maersk" (2006 DMF 207) A refrigerated container was loaded at the Havre by Omega Trading on board the Christian Maersk with destination Cotonou. A bill of lading with the heading "Maersk Line" was issued by S.A. Maersk France as agents. On arrival a destination the cargo of apples stuffed in the container was found damaged and its insurers, Les Mutuelles du Mans IARD Assurance, GIE Reunion Européenne and other insurance companies, acting in subrogation of the shipper, brought proceedings in the Tribunal de Commerce of Salon de Provence against Möller A.P. and the master of the vessel. By judgment dated 7th September 2001 the Tribunal de Commerce of Salon de Provence held that the defendants were liable for the payment to the plaintiffs of the insurance indemnity. The defendants appealed and A.P. Moller stated that from the bill of lading it appeared that S.A. Maersk France had acted as agents for Dampskibsseslskabet af 1912 Aktieseiskab and Aktieselskabet Svendborg as carrier. Held, by the Court of Appeal of Aix-en-Provence, that: [1] Even though the name of A.P.Möller did not appear on
the bill of lading, that name appeared on the stationery of S.A. Maersk France
from which the claim had been handled; that although A.P. Möller had stated
that the names of Dampskibsseslskabet af 1912 and Aktieselskabet Svendborg appeared
in small type in the bill of lading under the signature of S.A. Maersk France,
followed by the description as carrier, in the verso of the bill of lading they
were described as owners or charterers, whilst from the ships registry the owner
was indicated as Maersk A/S Arthus; that no explanation was given as to the capacity
in which the two companies had acted in connection with the carriage in question;
that there appeared to be a flow and a curtain of smoke created by the drafters
of the bill of lading and by S.A. Maersk France which permits, on the strength
of the doctrine of the "apparence" to hold that A.P. Möller had
acted as carrier. Hong Kong Special Administration Region Carewins Development (China)
Limited v. Bright Fortune Shipping Limited and Carewins Development (China)
Limited v. Hecny Shipping Limited, High Court of the Hong Kong Special Administrative
Region, 27 July 2006 (The summary of facts may be found in the section "Bills of lading") Held, by the High Court of the Hong Kong Special Administrative Region, that: [1] Where a bill of lading is signed by
the person whose name appears on its heading "as agent only" and contain
on its reverse side a carrier's identity clause carrier must be deemed to be the
person whose name is indicate in the identity clause. Jurisdiction Clause (Art. 3. 8) United States Kanematsu USA, Inc. et Al. v. m/v Ocean Sunrise et Al., U.S. District Court, Eastern District of Louisiana, 23 May 2003 (2003 AMC 2200) A shipment of steel tubing was carried on the m/v Ocean Sunrise from Japan to New Orleans, Louisiana and Houston, Texas. When the steel tubing arrived at the ports of New Orleans and Houston, the tubing was allegedly damaged and depreciated in value. Plaintiffs, Kanematsu USA Inc., and Mitsubishi Corporation, as owners of the cargo, and Tokio Marine & Fire Insurance Company, as insurer of the cargo, brought an admiralty action under the Carriage of Goods by Sea Act, 46 U.S.C. app. §1300, et seq. seeking recovery for the damage to the cargo. Defendant Sirhan Compania Maritime S.A., the vessel owner, filed a motion to dismiss in favor of litigation in Japan, based on a forum selection clause in the bill of lading.
Reed & Barton Corp. and Others v. MV “Tokio Express” and Others (U.S.D.C. Southern District of New York 22 February 1999, 1999 AMC 1088) Plaintiffs Reed & Barton Corp. and Others brought an action against MV “Tokio Express” and the shipowners of the vessel Pol Gulf International (Pte.) Ltd. to recover damages in admiralty for non delivery and damage to cargoes on board the “Tokio Express”. Defendants moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(d) on the grounds of a mandatory forum selection clause in the bill of lading covering the action. The clause so provided: 25. Law and jurisdiction. Except as otherwise provided specifically herein any claim or dispute arising under this bill of lading shall be governed by the law of the Federal Republic of Germany and determined in the Hamburg Courts to the exclusion of the jurisdiction of the Courts of any other place. In the event this clause is inapplicable under local law then jurisdiction and choice of law shall lie either in the port of loading or port of discharge at carrier’s option. Held, by the U.S. District Court, Southern District of New York, that: (1) A jurisdiction clause in a bill of lading whereby any claim or dispute arising thereunder shall be governed by German law and shall be determined in the Hamburg Courts is broad enough to cover in rem claims and the unavailability of in rem proceedings in Germany does not deprive the plaintiffs of their substantive rights under COGSA when they have agreed to accept a Letter of Undertaking giving up their right to arrest the vessel. Limits of liability (Art. 4. 5) Australia El Greco (Australia) Pty Ltd. v. Mediterranean Shipping Company S.A., Federal Court of Australia, Queensland District Registry, 10 August 2004 (2004 AMC 2886) (The summary of facts may be found in the section "General principles - Rules of interpretation") Held, by the Federal Court, that:
Germany The MV "New York Express", Oberlandesgericht Hamburg (Court of Appeal) 2 November 2000, Transportrecht 2001, p. 87 * Two containers with machinery were carried from Bremerhaven to Newark/New Jersey on the MV New York Express. The carrier issued an express cargo bill. The express cargo bill provided for the application of German law. It further contained a Paramount Clause in favour of the US COGSA extending the application of the US COGSA also to losses and damages occurring prior to the loading and after the discharging of the cargo. After discharging had been completed at Newark and in the course of the handling of the cargo on the terminal, the terminal operator being the carrier's subcontractor, part of the cargo was damaged. The consignee claimed damages from the carrier under the contract of carriage. The issue to be decided by the Court was whether the limitation of liability was effective.
*
By the courtesy of Dr. Cristoph Horbach, Lebuhn & Puchta Rechtsanwälte, Vorsetzen 35, D-20459 Hamburg - cristoph.horbach@lebuhn.de
Italy Tribunal of Naples 27 February 2004, Fertilizers and Chemicals Ltd. v. Grimaldi Compagnia di Navigazione S.p.A. [2004] Dir.Mar. 451 A truck loaded at Rotterdam on the m/v Grande Africa, of Italian flag, with destination Lagos, was not delivered at destination. Fertilizers and Chemicals Ltd., holder of the bill of lading issued by the carrier, Grimaldi Compagnia di Navigazione S.p.A., commenced proceedings against Grimaldi in the Tribunal of Naples, claiming as damages the value of the truck, in the amount of US$ 24,727. The carrier invoked the application of the limit of liability of the Hague-Visby Rules.
A consignment of textiles, stowed in a container carried from Quingdao to Naples
on the m/v Hua Li He, arrived in damaged conditions and the consignee,
Embroidered Centre S.r.l., brought proceedings against the agents in Naples of
the carrier, Cosco S.r.l. and the logistic provider, Air Seatransport Inc., in
the Tribunale of Naples.
Japan The Buen Viento, Chiho Saibansho (District Court) of Tokyo, 16 October 2003, Kaijihou Kenkyûkaishi no.178, p.66.* The owners of the Buen Viento, that has sunken during a voyage from Japan to the United States, commenced limitation proceedings under the Japanese law that implemented the LLMC Convention (Act on Limitation of Liability of Shipowners) in the District Court (Chiho Saibansho) of Tokyo. The owners of some valuable cargo claimed the full value of the cargo but other claimants objected that the amount of the claim should be calculated on the basis of the per kilo limitation set out by the Japanese law that implemented the Hague-Visby Rules (International Carriage of Goods Act).
* By the courtesy
of Prof. Souichirou Kozuka of the Sophia University, Tokio - s-kozuka@hoffman.cc.sophia.ac.jp Tokyo Chiho Saibansho (Tokyo District Court) 13 May 1998, Nicholas D. Carner v. Global Silver Hawk, Inc. et al. (Hanrei Jihô no. 1676, p. 129) * Nicholas D. Carner shipped on board the “Silver Hawk” owned by Global Silver Hawk Inc. unspecified goods and, at the time he entered into the contract of carriage, declared to the carrier the value of the goods that had been delivered to it. However the declaration of the value was not inserted in the bill of lading. Upon arrival at destination in Japan, loss and damage was found in the consignment and the shipper sued the carrier before the Tokyo District Court claiming payment of the damages on the basis of the value declared to the carrier. The carrier denied the validity of the declaration of value on the ground that it had not been inserted in the bill of lading. Held, by the Tokyo District Court, that: (1) The declaration of the nature and value of the goods does not need to be endorsed on the bill of lading when it is made to the performing carrier. *
Summary prepared by by Prof. Souichirou Kozuka, Sophia University, Tokyo.
New Zealand Dairy Containers Ltd., Moriah Co. Ltd. and Posteel v. The Ship “Tasman Discoverer” and Tasman Orient Line CV (High Court of New Zealand-Auckland Registry 27 July 2001, [2002] 1 NZLR 265; [2002] 2 Lloyd's Rep. 528 * During the voyage from Busan (Korea) to Tauranga (New Zealand) 55 coils of electrolytic tin plates part of a consignment of 70 coils loaded on board the m.v. Ta | ||