QLU Summer 2017 Sept-3: 船荷証券に甲板積みが記載されていない甲板積み貨物へのヘーグ・ヴィスビー・ルールの適用
This next decision of the Federal Court of Canada reviews the Hague Visby Rules’ treatment of deck cargo
De Wolf Maritime Safety BV v Traffic-Tech International Inc (The “Cap Jackson”) Federal Ct (St Louis J) 2017 FC 23
De Wolf was the owner and consignee of a shipment described in a bill of lading as “One piece zodiac and Spare Parts”, shipped on board the vessel Cap Jackson from Vancouver to Rotterdam. The container was carried under a bill of lading issued by Traffic-Tech, which made no mention of on-deck carriage. The container was carried on deck and was washed overboard and lost during the voyage. The cargo owner was unaware that the cargo was being carried on deck, until it was notified of the loss. Canadian Court was asked to consider two questions: (1) Did the undeclared on-deck carriage of the cargo under the bill of lading prevent the defendant from relying on the Hague-Visby Rules? and (2) If it did not, what were the limitations applicable to the contract of carriage pursuant to the Hague-Visby Rules?
The judge held:
- Article I(c) of the Hague-Visby Rules, like Article 1(c) of the Hague Rules, defines “goods” as including “goods, wares, merchandise and articles of every kind whatsoever, except live animals and cargo which by the contract of carriage is stated as being carried on deck and is so carried”. In order for cargo not to be regarded as “goods”, it must not only be carried on deck, but also be stated in the contract of carriage as being so carried. Therefore, the Hague-Visby Rules will apply to cargo carried under deck while the bill of lading states that the cargo is carried on deck, and vice versa.
In this case, it is undisputed that the bill of lading did not mention on-deck carriage, and that the goods were carried on deck. As one of the two conditions is not met, the cargo cannot be excluded from the definition of “goods”, and it is thus subject to the Hague-Visby Rules.
- Traffic-Tech was entitled to limit liability under Article IV Rule 5(a) of the Hague-Visby Rules. The carriage of a container on deck did not amount to a fundamental breach or deviation but was a matter of construction of the contract (The Kapitan Petko Voivoda  2 Lloyd’s Rep 1).
- Article IV(5)(a) provides a limitation of liability to the carrier and the ship “in any event”, while Article IV(5)(e) provides that neither the carrier nor the ship shall be entitled to the benefit of this limitation of liability if “the damage resulted from an act or omission of the carrier done with intent to cause damage, or recklessly and with knowledge that damage would probably result”.
The question of issue of recklessness and intent of the carrier under article IV rule 5(e) of the Hague-Visby Rules was one of fact and not law and did not arise in the present case because no evidence was provided to support such claim.
This is a Canadian case but given that the judge relied on English authority when reaching a decision and the case relates to Hague Visby Rules and English Courts support themselves with Canadian and United States authorities when interpreting Convention law, it is suggested that the decision would be followed by the English Courts.