APRILE SPA AND OTHERS V ELIN MARITIME LTD

[2019] EWHC 1001 (Comm), Queen's Bench Division, Commercial Court, Stephen Hofmeyr QC (sitting as a High Court Judge), 18 April 2019

Bills of lading - Deck cargo - Seaworthiness obligation - Implied term - Carrier's obligation to deliver in like condition - Exclusion of liability - Common law

The defendant was the owner of the MV Elin and the claimants were the cargo interest in respect of a cargo of supplies and equipment for an offshore project shipped on board under a non-negotiable bill of lading issued by an agent on behalf of the owner for carriage from Thailand to Algeria. The bill of lading contained the following exclusion: "The carrier shall in no case be responsible for loss of or damage to the cargo, howsoever arising ... in respect of deck cargo". Some of the cargo was lost overboard in heavy seas. For present purposes it was assumed that it had been carried on deck. The cargo interests brought claims in contract, tort and bailment, alleging a breach of duty, or of the contract contained in or evidenced by the bill of lading. Owners denied liability on the ground that it was expressly excluded by the bill of lading. Cargo interests argued notably that the exclusion was ineffective in the face of an overriding obligation of seaworthiness and suggested alternative interpretations of the exclusion. The question for trial was whether, on a true construction of the bill of lading, the defendant was not liable for any loss of or damage to any cargo carried on deck howsoever arising, including loss or damage caused by unseaworthiness or the defendant's negligence. It was assumed that the bill of lading terms (including incorporated charterparty terms) and common law applied, but not the Hague or Hague-Visby rules.