France

Court of Appeal of Paris 17 October 2007,

Someport Walon

v.

SNC GE Energy Products

(2008 DMF 250)

By contract dated 30 July 1999 S.A. Someport Walon agreed with GE Energy to carry materials for the construction of a gas plant in Bangladesh. During the transshipment in the port of Antwerp of a gas turbine from a barge to the m/v

Alemania

the turbine fell owing to the wire of the vessel's crane having broken.

GE Energy and its insurers brought proceedings against Someport Walon and others in the Tribunal de Commerce of Paris claiming damages in the amount of US Dollars 3,033,172. By judgment of 30 May 2005 the Tribunal de Commerce found Someport Walon liable for the full amount of the claim on the ground that the carrier could not invoke the limit of liability pursuant to Article 4(5)(e) of the Hague-Visby Rules. Someport Walon appealed to the Cour d'Appel Paris.

Held, by the Cour d'Appel of Paris, that:

[1]  The obligation under article 3(1) of the Hague-Visby Rules to exercise due diligence to make the ship seaworthy is a personal obligation of the carrier. Germany

Federal Supreme Court (Bundesgerichtshof) 26 October 2006 - M/v "Cita", I ZR 20/041

In the morning of 26 March 1997 the M/v "

Cita

" stranded off the Scilly Isles and sank. The cause of the stranding was that the first officer, who had been keeping watch on his own, had changed the course of the vessel and then had fallen asleep. The vessel was equipped with a functioning watch alarm the purpose of which was to ensure that the watch keeper does not fall asleep, but it had been switched off as it apparently was the general practice on board. After the establishment of a limitation fund by the time charterers of the vessel, who were the carrier, the assignees of certain cargo interests brought a claim against the fund for the amount of the loss and argued that the carrier was liable because the vessel had been unseaworthy because the behaviour of the first officer, who was only qualified as second officer, evidenced that he was unable to manage the vessel properly because he had been keeping watch without a second watch keeper, as required by the STCW Convention and without the watch alarm. The Landgericht Hamburg held in favour of the claimants but then its judgment was reversed b y the Court of Appeal. The timecharterers appealed against this latter judgment to the Federal Supreme Court.

Held, by the Federal Supreme Court (Bundesgerichtshof), that:

  [1]  The vessel was not unseaworthy under §559 HGB (corresponding to art.3.1 of the Hague-Visby Rules)because the manning complied with the Safe Manning Certificate and although the crew was unaware of the requirement of two watch keepers, it could not be assumed that such ignorance was due to any fault in the organisation on the part of the carrier since even if at the time of the occurrence the requirement of the two watch keepers was in force in England (the place of the casualty), it was not in force under the law of the vessel's flag and it would be too high a standard of duty to demand from the carrier that he research in advance the legal provisions that might apply to the route taken by the vessel in any particular time.*

* The Editor wishes to thank Mr. David Martin-Clark and BBL Rechtsanwälte of Hamburg for having made available information on this judgment.

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.

Hot-rolled coils, cold-rolled coils, and galvanized coils were loaded into the vessel at the load ports in Riga and Ventspils, Latvia.

The vessel departed from Ventspils on March 7, 1997 and arrived at its first stop, Camden, New Jersey, on March 28, 1997. During the voyage, the vessel encountered rough weather. The vessel's logs reported that the worst weather that the vessel encountered was wind that reached Beaufort Scale Force of 11-12 for about one hour on March 26. Captain Musial testified that he was aware that he might encounter Force 12 winds in the North Atlantic during the late winter. During the rest of the voyage, the vessel did not encounter winds exceeding Beaufort Scale 10, and most readings were below Beaufort Scale 9. Although Captain Musial filed a Note of Protest at the first port of call, he did not claim any structural damage to the ship as a result of the weather that the vessel had encountered during the voyage,

At the first discharge port, Camden, the vessel discharged cold-rolled coils from holds No. 1, 2, 4, and 7. Attending surveyors reported evidence of seawater entry into all of these holds. Another report at Camden criticized the vessel's condition and noted specific deficiencies in each of the seven hatch covers and hatch cover closing fixtures.

The vessel then travelled to New Orleans, where she discharged hot-rolled coils, cold-rolled coils, and galvanized coils from holds No. 1, 2, 3, 4, 6, and 7. Captain Rasaretnam, the cargo surveyor in attendance, reported that the vessel's hatch covers were in "apparent non-watertight condition, with signs of leakage and/or water ingress into all holds". The survey indicated positive silver nitrate reactions on the cargo in the stow of holds 1, 3, 4, 6, and 7, which confirmed that seawater had entered the holds. In New Orleans, the No. 1 hold of the vessel flooded up to 16 inches as a result of a crack in the plating that separated the No. 1 hold from the port wing ballast tank. Rasaretnam observed the flooding and inspected the crack. He believed that the crack was an extension of an old crack over which a doubler plate had been welded.

Held, by the U.S. District Court, Eastern District of Louisiana, that:

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(1) The carrier who failed to test the watertight integrity of the hatch covers through which seawater penetrated into the holds and to make the necessary repairs to the covers failed to exercise due diligence to ensure the seaworthiness of the vessel before the commencement of the voyage.

</dd><dt> </dt><dt>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 and Steel Coils and Western Bulk cross-appealed from the judgment of the U.S. District Court.

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http://www.comitemaritime.org/jurisp/ju_billading.html

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