Jurisprudence on Interpretation of Hague-Visby Rules: Excepted Perils

United StatesAnvil 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

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

Staff Author

UK P&I

Date30/09/2010