The claimant, cargo interests, brought an action against the defendant, Owners of The Elin, following the loss of deck cargo in heavy seas. The cargo was carried under a non-negotiable bill of lading from Thailand to Algeria which provided as follows:
1 –on page 1: “The Carrier shall in no case be responsible for loss of or damage to the cargo, howsoever arising…. in respect of deck cargo”; and
2 –on page 2 that the 70 packages identified on the attached list were “loaded on deck at shipper’s and/or consignee’s and/or receiver’s risk, the carrier and/or Owners and/or Vessel being not responsible for loss or damage howsoever arising.”
The cargo interests brought a claim in contract, tort and bailment, alleging that the loss of the deck cargo was caused by the Owners’ breach of duty and/or the contract contained in or evidenced by the bill of lading. In particular:
Certain assumptions were agreed between the parties:
Owners denied liability and sought to rely on the two provisions in the bill of lading quoted above. They argued that the liability for the carriage of deck cargo was excluded by express terms in the bill of lading, including liability for negligence and unseaworthiness.
The cargo interests contended that the implied obligation of seaworthiness was fundamental and overriding, and an exclusion clause did not affect it unless clearly worded.
The High Court was asked to determine “Whether, on a true construction of [the bill of lading], the defendant is not liable for any loss or damage to any cargo carried on deck howsoever arising, including loss or damage caused by unseaworthiness and/or the defendant’s negligence.”
The Court held that viewed as a construction of the terms of the bill of lading, free from authority, the words of exclusion were effective to exclude liability for both negligence and unseaworthiness. The words of exclusion were clear. The Owners had no responsibility for cargo carried on deck whatever the cause. It was difficult to conceive of wider words of exemption. The exclusion covered any and every cause and there was no justification for excluding either negligence or unseaworthiness as a cause.
The court also reminded the parties when the Hague or Hague-Visby Rules would apply:
(a) Where the bill of lading states that the cargo is carried on deck but, in fact, the cargo is carried below deck; or
(b) Where the bill of lading is silent as to the location of the cargo but, in fact, the cargo is carried on deck.
Therefore, the exclusion clause will only be effective where the bill of lading states that the cargo is carried on deck and the cargo is in fact loaded and carried on deck.
This decision should be welcomed by the Members. While certain jurisdictions like Singapore (Sunlight Mercantile Pte Ltd v Ever Lucky Shipping Co Ltd  2 Lloyd’s Rep 174) and Canada (Belships v Canadian Forest Products Ltd  AMC 2606) have held that a carrier would not be able to avoid liability for unseaworthiness and negligence under similarly worded exclusions, the High Court reaffirmed that as a matter of English law a carrier would be able to avoid liability for any loss or damage to deck cargo “howsoever arising” or any similarly worded exclusion, even if the loss or damage is caused by unseaworthiness and negligence.
Members are also referred The UK P&I Clubs legal update dated 1 May 2019 , “Carrying Deck Cargo - at whose risk?” - https://www.ukpandi.com/knowledge-publications/article/carrying-deck-cargo-at-whose-risk-148391/ in which this case was discussed.