The recent Court of Appeal decision in Vinnlustodin HF v
Sea Tank Shipping AS (the Aqasia) concerned a £367,839
claim by charterers against disponent owners in respect of contaminated fish
oil in bulk carried on board a tanker. The charter party provided for the
carriage of fish oil in bulk from Iceland to Norway and provided for lumpsum
freight. The charter party also specifically incorporated Article IV (5) of the
Hague Rules.
The owners accepted liability for the damaged cargo but argued
that they were entitled to limit their liability to £54,730.90 by relying on
the limitation amount per package or unit under Article IV (5), namely £100 per
tonne. The owners claimed that the parties had clearly intended Article IV (5)
to apply to a bulk cargo, having incorporated it into a charter party where
bulk cargo was the only type of cargo contemplated.
The matter was referred to the court. For the purposes of Article
IV (5), it was agreed that the definition of a 'package' could not apply to
bulk cargoes, so the question for the court was whether the definition of a
'unit' could apply.
At first instance, Sir Jeremy Cooke held that the owners could not
limit their liability, as Article IV (5) does not apply to bulk or liquid
cargoes as they are neither packaged nor unitized. He held that a 'unit' meant
a physical unit for shipment and not a unit of measurement, such as a metric
tonne. In any event, he added that even if the latter interpretation was wrong,
'unit' must then refer to 'freight unit'. As the charter party provided for
lumpsum freight (i.e., freight is paid irrespective of the cargo quantity), the
limit could not apply to bulk cargoes. The owners appealed.
The main issue considered by the Court of Appeal was whether a
'unit' in Article IV (5) of the Hague Rules refers to:
- a physical item of cargo or
shipping unit; or
- a unit of measurement used to
denominate or quantify cargo in the contract of carriage.
In rejecting the owners' appeal, the Court of Appeal upheld the
first-instance decision and found that the word 'unit' in Article IV(5) of the
Hague Rules meant a physical item of cargo, not a unit of measurement for the following
reasons:
- The word 'package' clearly refers
to a physical item and the use of the words 'package' and 'unit' together
suggests that both words concern physical items rather than units of
measurements.
- This is also evident from Article
III(3)(b) of the Hague Rules, which refers specifically to both the weight
or quantity of cargo: "After receiving the goods into his charge the
carrier or master shall issue a bill of lading showing… either the number
of packages or pieces, or the quantity, or weight, as the case may
be".
- Giving the word 'unit' different
meanings for different types of cargoes (ie, physical items and units of
measurements) also creates an obvious problem. The example used was
unpackaged items such as cars, where bills of lading not only specified
the number of units in the sense of the number of cars, but also their
weight. Which of the two was to be taken to be the 'unit' for limitation
purposes was unclear.
In light of the court's interpretation of Article IV, it did not
matter what the parties intended when they incorporated it into the charter party.
In order to limit liability for bulk or liquid cargoes in these circumstances,
the owners should have:
- included a deeming provision in a
charter party giving Article IV(5) and 'unit' a different meaning; or
- incorporated the Hague Rules
package limitation, which include a weight factor.
This case confirms that Article IV(5) of the Hague Rules does not
apply to bulk and liquid cargoes and therefore a carrier cannot limit liability
for such cargoes under said rules – an issue which has been lacking direct
authority for over 90 years.
For ease of reference the particular article of the rules is quoted
below.
Article IV(5) of Hague Rules
5 (a) Unless
the nature and value of such goods have been declared by the shipper before shipment
and inserted in the bill of lading, neither the carrier nor the ship shall in
any event be or become liable for any loss or damage to or in connection with
the goods in an amount exceeding the equivalent of 666.67 units of account per
package or unit or units of account per kilo of gross weight of the goods lost
or damaged, whichever is the higher.
(b) The total
amount recoverable shall be calculated by reference to the value of such goods
at the place and time at which the goods are discharged from the ship in
accordance with the contract or should have been so discharged.
The value of
the goods shall be fixed according to the commodity exchange price, or, if
there be no such price, according to the current market price, or, if there be
no commodity exchange price or current market price, by reference to the normal
value of goods of the same kind and quality.
(c) Where a
container, pallet or similar article of transport is used to consolidate goods,
the number of packages or units enumerated in the bill of lading as packed in
such article of transport shall be deemed the number of packages or units for
the purpose of this paragraph as far as these packages or units are concerned.
Except as aforesaid such article of transport shall be considered the package
or unit.
(d) The unit of
account mentioned in this Article is the special drawing right as defined by
the International Monetary Fund. The amounts mentioned in
h_visby/art/art04_5asub-paragraph (a) of this paragraph shall be converted into
national currency on the basis of the value of that currency on a date to be
determined by the law of the Court seized of the case.
(e) Neither the
carrier nor the ship shall be entitled to the benefit of the limitation of
liability provided for in this paragraph if it is proved that 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.
(f) The
declaration mentioned in sub-paragraph (a) of this paragraph, if embodied in
the bill of lading, shall be prima facie evidence, but shall not be binding or
conclusive on the carrier.
(g) By
agreement between the carrier, master or agent of the carrier and the shipper
other maximum amounts than those mentioned in sub-paragraph (a) of this
paragraph may be fixed, provided that no maximum amount so fixed shall be less
than the appropriate maximum mentioned in that sub-paragraph.
(h) Neither the
carrier nor the ship shall be responsible in any event for loss or damage to,
or in connection with, goods if the nature or value thereof has been knowingly
mis-stated by the shipper in the bill of lading.
6. Goods of an
inflammable, explosive or dangerous nature to the shipment whereof the carrier,
master or agent of the carrier has not consented with knowledge of their nature
and character, may at any time before discharge be landed at any place, or
destroyed or rendered innocuous by the carrier without compensation and the
shipper of such goods shall be liable for all damages and expenses directly or
indirectly arising out of or resulting from such shipment. If any such goods
shipped with such knowledge and consent shall become a danger to the ship or
cargo, they may in like manner be landed at any place, or destroyed or rendered
innocuous by the carrier without liability on the part of the carrier except to
general average, if any.
Δεν υπάρχουν σχόλια:
Δημοσίευση σχολίου