Lloyd's Maritime and Commercial Law Quarterly
LIMITING LIABILITY FOR MISDELIVERY
The MSC Amsterdam
Paul Todd*
In
The MSC Amsterdam, cargo was misdelivered from a container yard, after it had been discharged from the carrier’s ship. The liability for such misdelivery has been long-established, but the importance of the case lies in its consideration of how a carrier can limit the amount. There is, in Longmore LJ’s judgment, a considered analysis of when the Hague or Hague-Visby regimes (including the package limitation) can extend beyond discharge, and of the ability of carriers alternatively to limit their liability for post-discharge misdelivery, by express contractual provision. There is lengthy consideration of the application of the Hague-Visby Rules to carriage from South Africa (a non-Contracting State which has nonetheless enacted legislation bringing the Rules into force), and of assessment of damages for conversion, where there is a significant market rise after the initial conversion, but during the period of detention of the goods.
In Trafigura Beheer BV
v. Mediterranean Shipping Co SA (The MSC Amsterdam
),1
the Court of Appeal had once again to consider the consequences for a shipowner of delivering cargo without production of a genuine bill of lading. The shipowner’s liability in such cases, even where (as in The MSC Amsterdam
) the bill of lading was forged, has long been beyond doubt. In The MSC Amsterdam
, however, the issue was whether the carrier could limit his liability, either by invoking the Hague Rules, or by express contractual provision. The decision throws light upon the application and interpretation of the Hague(-Visby) Rules, and there is also discussion of conversion damages, where there is a continuing detention of goods on a rising market, and where limits to liability do not apply. However, the importance of The MSC Amsterdam
is less what it actually determines (it does not finally determine much of substance), than that the discussion may signal the future direction of the law, at least up to Court of Appeal level.
Context, facts and issues
Trafigura were FOB purchasers and shippers of a cargo of 360 tonnes of copper cathodes,2
shipped in 18 containers on board MSC’s vessel MSC Amsterdam
, for a voyage from Durban to Shanghai, where it was discharged and taken to a container yard. A fraudulently
* Professor of Law, University of Plymouth.
1. Trafigura Beheer BV
v. Mediterranean Shipping Company SA (The MSC Amsterdam)
[2007] EWCA Civ 794; [2007] 2 Lloyd’s Rep 622; [2007] 2 CLC 379. Longmore LJ delivered the judgment of the court.
2. Though the bill of lading was issued to their FOB sellers, Trafigura were the shippers in reality: [2007] EWHC 944 (Comm); [2007] 1 CLC 594, [7], [42] (Aikens J).
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