Aprile S.PA. v Elin Maritime Ltd

JurisdictionEngland & Wales
JudgeStephen Hofmeyr
Judgment Date18 April 2019
Neutral Citation[2019] EWHC 1001 (Comm)
Docket NumberClaim No.: CL-2017-000626
CourtQueen's Bench Division (Commercial Court)
Date18 April 2019

[2019] EWHC 1001 (Comm)

IN THE HIGH COURT OF JUSTICE

BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES

QUEEN'S BENCH DIVISION

COMMERCIAL COURT

Royal Courts of Justice

Rolls Building, 7 Rolls Buildings

Fetter Lane, London EC4A 1NL

Before:

Stephen Hofmeyr QC

(Sitting as a Judge of the High Court)

Claim No.: CL-2017-000626

Between:
(1) Aprile S.PA.
(2) Globtainer Logistique Sarl
(3) Algerian Qatari Steel S.P.A.
(4) Danieli & C Officine Meccaniche S.P.A.
(5) Aig Europe Ltd
(6) Assicurazioni Generali S.PA.
(7) L'algérienne Des Assurances 2A
Claimants
and
Elin Maritime Limited
Defendant

Max Davidson (instructed by Roose+Partners) for the Claimants

James Leabeater QC (instructed by Reed Smith) for the Defendant

APPROVED JUDGMENT

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

Stephen Hofmeyr QC (Sitting as a Judge of the High Court):

A. Introduction

1

The Defendant, Elin Maritime Limited of the Marshall Islands (“ the Owner”), is the owner of the motor vessel “ ELIN” (“ the Vessel”).

2

By a non-negotiable bill of lading numbered EL1601LCBDJD01 issued at Bangkok, Thailand, on 10 June 2016 (“ the Bill of Lading”), Sealite Shipping Co. Ltd., as agent for and on behalf of the Master, Captain Chagas Hector Beniga, for and on behalf of the Owner acknowledged shipment on board the Vessel of 201 packages of cargo (said to weigh 838.821,00 kgs and to measure 3,937.69 CMB) described as “IMPORTATION DES FOURNITURES ET EQUIPMENTS DU PROJECT DU COMPLEXE SIDERURGIQUE DE BALLARA PORTION OFF-SHORE” in apparent good order and condition for carriage from the port of Leam Chabang, Thailand, to the port of Djen-Djen, Algeria.

3

The Fourth Claimant, Danieli & C Officine Meccaniche S.P.A, (acting through the First Claimant, Aprile S.P.A.), the Second Claimant, Globtainer Logistique SARL, and the Third Claimant, Algerian Qatari Steel S.P.A, are named in the bill of lading as the shipper, the consignee and the notify address, respectively. The Fifth and/or Sixth and/or Seventh Claimants insured the cargo on the voyage. The Claimants are referred to collectively as “ the Cargo-interests”.

4

During the voyage, between around 2 and 6 July 2016, the Vessel encountered heavy seas and some of the cargo was lost and/or damaged. A part of the cargo which was lost and/or damaged was indisputably carried in the Vessel's holds. The damage to this cargo is not relevant for present purposes. There is a dispute as to whether the balance of the cargo which was lost and/or damaged was carried in the Vessel's holds or on deck. The Owner alleges that the balance of the cargo which was lost and/or damaged was carried on deck. The Cargo-interests do not admit that this was so. That dispute may need to be determined hereafter. However, for present purposes the parties have agreed that the court must assume that the balance of the cargo which was lost and/or damaged was in fact carried on deck. For ease of reference, this cargo is referred to hereafter “ the deck cargo”.

5

The Cargo-interests' claim is brought in contract, tort and bailment. They allege that the loss of and/or damage to the deck cargo was caused by the Owner's breach of duty and/or the contract contained in or evidenced by the Bill of Lading. In particular, they allege that the Owner failed:

(1) to deliver the deck cargo in the same good order in which it had been on shipment;

(2) properly and carefully to load, stow, carry, care for and discharge the deck cargo in breach of contract and/or duty and in breach of Article III, Rule 2 of the Hague, alternatively Hague-Visby Rules;

(3) properly to lash and/or stow the deck cargo sufficiently for the voyage; and/or

(4) to exercise due diligence to make the ship seaworthy at the commencement of the voyage and, in particular, to make the ship and her holds fit for the reception, carriage and preservation of the deck cargo stowed in it.

6

The Owner denies liability on the ground, amongst others, that liability for the carriage of deck cargo was excluded by express terms in the Bill of Lading.

B. The preliminary issue

7

At a Case Management Conference in this matter held on 2 November 2018, Picken J ordered the trial of the following preliminary issue:

Whether, on a true construction of [the Bill of Lading], the Defendant is not liable for any loss or damage to any cargo carried on deck howsoever arising, including loss or damage caused by unseaworthiness and/or the Defendant's negligence.”

8

The preliminary issue raises a point of construction of the Bill of Lading which the Cargo-interests invite me to answer in the negative. The Owner invites me to answer the preliminary issue in the affirmative.

C. The Bill of Lading

9

Page 1 of the Bill of Lading provides, inter alia, as follows:

Conditions of Carriage

(1) All terms and conditions, liberties and exceptions of this Contract, dated as overleaf, including the Law and Arbitration Clause, are herewith incorporated.

(2) General Paramount Clause

(a) The Hague Rules contained in the International Convention for the Unification of certain rules relating to Bills of Lading dated Brussels the 25th August 1924 as enacted in the country of shipment, shall apply to this Bill of Lading. When no such enactment is in force in the country of shipment, the corresponding legislation of the country of destination shall apply but in respect of shipments to which no such enactments are compulsorily applicable, the terms of the said convention shall apply.

(b) Trades where the Hague-Visby Rules apply.

In trades where the International Brussels Convention 1924 as amended by the Protocol signed at Brussels on February 23 1968 – the Hague Visby Rules – apply compulsorily, the provisions of the respective legislation shall apply to this Bill of Lading.

(c) The Carrier shall in no case be responsible for loss of or damage to the cargo, howsoever arising prior to loading into or after discharge from the Vessel or while the cargo is in the charge of another Carrier, nor in respect of deck cargo or live animals.

For particulars of cargo, freight, destination, etc., see overleaf.”

10

On page 2, the Bill of Lading provides, inter alia, as follows:

“FREIGHT AS PER BOOKING NOTE

(of which 70 pckgs as per attached list loaded on deck at shipper's and/or consignee's and/or receiver's risk; the carrier and/or Owners and/or Vessel being not responsible for loss or damage howsoever arising)

Freight payable as per CHARTER PARTY dated 2016 May 23 rd

SHIPPED at the Port of Loading in apparent good order and condition on board the Vessel for carriage to the Port of Discharge or so near thereto as she may safely get the goods described above.

Weight, measure, quality, condition, contents and value unknown.

IN WITNESS whereof the Master or Agent of the said Vessel has signed the number of Bills of Lading Indicated below all of this tenor and date, any one of which being accomplished the others shall be void. …”

11

Attached to the Bill of Lading is a list of 70 packages said to have been loaded on deck: 6 simply “ on deck”, 16 on hatch no. 2, 27 on hatch no. 3 and 21 on hatch no. 4.

12

The Cargo-interests allege that the Bill of Lading incorporated the germane terms of a charterparty dated 23 May 2016 (“ the Charterparty”). The Owner does not accept that the Charterparty was the charterparty incorporated into the Bill of Lading or that the terms produced by the Cargo-interests are necessarily complete. However, for the purposes of the trial of the preliminary issue, the parties have agreed that the court must assume that the Bill of Lading incorporated the germane terms of the Charterparty in the form produced by the Cargo-interests.

13

The Charterparty provided, inter alia, as follows:

Charterparty

LASHING/SECURING/DUNNAGE IF ANY, TO BE FOR OWNERS ACCOUNT AND

ARRANGEMENT

CONLINE BILLS 2000 FORM TO BE USED.

OTHERS AS PER CONLINE 2000.”

14

The Cargo-interests allege, further, that the Charterparty incorporated the terms of “CONLINEBOOKING 2000”, alternatively CONLINEBILL 2000.

15

CONLINEBOOKING 2000 provides, inter alia, as follows:

3. Liability for Carriage Between Port of Loading and Port of Discharge.

(a) The International Convention for the Unification of Certain Rules of Law relating to Bills of Lading signed at Brussels on 25th August 1924 (“the Hague Rules”) as amended by the Protocol signed at Brussels on 23 February 1968 (“The Hague-Visby Rules”) and as enacted in the country of shipment shall apply to this Contract. When the Hague-Visby Rules are not enacted in the country of shipment, the corresponding legislation of the country of destination shall apply, irrespective of whether such legislation may only regulate outbound shipments.

When there is no enactment of the Hague-Visby Rules in either the country of shipment or in the country of destination, the Hague-Visby Rules shall apply to this Contract save where the Hague Rules as enacted in the country of shipment or, if no such enactment is in place, the Hague Rules as enacted in the country of destination apply compulsorily to this Contract.

The Protocol signed at Brussels on 21 December 1979 (“the SDR Protocol 1979”) shall apply where the Hague-Visby Rules apply, whether mandatorily or by this Contract. The Carrier shall in no case be responsible for loss of or damage to cargo arising prior to loading, after discharging, or with respect to deck cargo and live animals.

9. Loading and Discharging.

(a) Loading and discharging of the cargo shall be arranged by the Carrier or his

Agent.

16. Stowage

(a) The Carrier shall have the right to stow cargo by means of containers, trailers, transportable tanks, flats, pallets, or similar articles of transport used to consolidate goods.”

...

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1 firm's commentaries
  • Carrier not liable for loss of or damage to cargo - The Elin
    • Australia
    • Mondaq Australia
    • August 22, 2019
    ...for negligence and unseaworthiness The preliminary issue, which was determined in Aprile S.P.A. and Others v Elin Maritime Limited [2019] EWHC 1001 (Comm) by Stephen Hofmeyr QC in the High Court in England and Wales, was whether or not the carrier was liable for loss or damage to cargo carr......

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