Lloyd's Maritime and Commercial Law Quarterly
MISDELIVERY AND TIME BARS
The Captain Gregos
In The Captain Gregos,1 owners of crude oil alleged that part of the oil had been stolen by the carriers at the time of delivery in Rotterdam. The carriers issued an originating summons to determine whether, the one-year limitation period prescribed by Art. III, r. 6 of the Hague-Visby Rules having elapsed between delivery and suit, they were discharged from all liability.
The carriers argued, first, that the words of Art. III, r. 6 of the Hague Rules, that referred merely to “all liability”, had been redrafted in the Hague-Visby Rules as “all liability whatsoever”, and that this was intended and apt to include claims for non-delivery. Secondly, the carriers argued that the travaux préparatoires of the Hague-Visby Rules supported this view of their meaning. Thirdly, they argued that, as a case such as theft was expressly excluded from the unit limitation in Art. IV in Art. IV, r. 5(e), construction expressio unius suggested that cases of theft were not excluded from Art. III, r. 6.
The carriers’ case failed because the attention of the court was focused largely on whether the theft occurred during “discharge”, in particular the “discharge” mentioned in Art. II of the Rules. From this perspective the court (Hirst, J.) concluded that Art. III, r. 6 did not apply.
It will be recalled that Art. II of the Rules provides that:
under every contract of carriage of goods by sea the carrier, in relation to the loading, handling, stowage, carriage, custody, care, and discharge of such goods, shall be subject to the responsibilities and liabilities, and entitled to the rights and immunities hereinafter set forth.
With this before him, the judge continued:2
The first question which I have to decide is whether delivery is in any way within the scope of the Art. II “package”. Article II describes the various stages at which the carrier bears responsibilities and liabilities, and is entitled to rights and immunities; this begins with loading and ends with discharge of goods … The “package” so described thus seems to me inherently inapt to embrace delivery, which imports concepts of possessory or proprietary rights, alien in my judgment to these carefully listed transportational stages … Once the conclusion is reached that delivery is outside the scope of Art. II, which is of course the key
1. Cia. Portorafti Commerciale S.A. v. Ultramar Panama Inc. (The Captain Gregos) [1989] 2 All E.R. 54.
2. At p. 62 (emphasis added).
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