Kyokuyo Company Ltd v A.P. Møller — Maersk A/S trading as "Maersk Line"
| Jurisdiction | England & Wales |
| Judge | Mr Justice Andrew Baker |
| Judgment Date | 29 March 2017 |
| Neutral Citation | [2017] EWHC 654 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 29 March 2017 |
| Docket Number | Case No: CL-2014-000360 |
[2017] EWHC 654 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Andrew Baker
Case No: CL-2014-000360
Robert Thomas QC and Benjamin Coffer (instructed by Clyde & Co LLP) for the Claimant
Sara Masters QC and Daniel Bovensiepen (instructed by Messrs Bentley Stokes & Lowless) for the Defendant
Hearing date: 1 March 2017
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.
Introduction
The claimant claims as receiver of three container loads of frozen tuna, shipped at Cartagena (Spain) for carriage by the defendant ('Maersk Line') to Japan. Using the labels adopted in the evidence:
i) Container A was discharged to the claimant at Yokohama on 15 February 2013.
ii) Container B was discharged at Yokohama on or about 22 February 2013; the claimant says it was then carried by road to Shimizu and delivered to the claimant there on 27 February 2013.
iii) The Replacement Container was discharged at Yokohama on or about 1 March 2013; the claimant says it was then carried by road to Shimizu and delivered to the claimant there on 5 March 2013. The contents of this container were shipped in Container C, but re-stuffed into the Replacement Container at Barcelona after a possible malfunction of Container C's refrigeration equipment.
The three container loads of tuna comprised frozen bluefin tuna loins, each weighing at least c.20 kg, and up to c.75 kg, and bags of frozen bluefin tuna parts, each bag weighing 20 kg ± c.10%. The frozen loins were stuffed into the containers as individual items of cargo, without any wrapping, packaging or consolidation. The bags were stuffed into the containers as individual bags, without (additional) wrapping or packaging, and without consolidation. The three loads were made up as follows:
i) Container A contained 206 frozen loins and the bags (said by the claimant to number 460).
ii) Container B contained 520 frozen loins.
iii) Container C / the Replacement Container contained 500 frozen loins.
The claimant alleges that the tuna as delivered to it was damaged through raised temperatures during carriage and/or rough handling during re-stuffing into the Replacement Container (in the case of the Container C tuna). It says that the damage should be valued for the purposes of compensation at c.¥ 121 million (then c.£858,000) in aggregate.
It is common ground that Maersk Line's liability (if any) is governed by its standard terms and conditions of carriage current at the time ('the Maersk Terms') and by either the Hague-Visby Rules or Articles I to VIII of the Hague Rules, Article IV rule 5 of which creates monetary limits of liability. Those limits are £100 'per package or unit' in the Hague Rules (and that is £100 sterling, not gold value, in the absence of Article IX) and, in the Hague-Visby Rules, the greater of 666.67 units of account 'per package or unit' or 2 units of account 'per kilogramme of gross weight of the goods lost or damaged'. The unit of account under the Hague-Visby Rules is the IMF's special drawing right ('SDR'), currently worth c.£1.10 so that 666.67 units of account is worth c.£733.
The parties disagree as to which set of Rules applies; and in either case as to how the limit of liability thereunder falls to be applied. In particular (as to the latter), whether it be Hague or Hague-Visby, the parties disagree as to whether the material 'package or unit' is the container or the individual tuna loins (or bags). The arguments are not identical as between the older and newer Rules, because of the requirement under the latter for an enumeration in the bill of lading of the contents of containers in container shipments in terms that satisfy Article IV rule 5(c), if cargo interests are to avoid the container being the only relevant 'package or unit'. Article IV rule 5(c) was introduced by the Visby Protocol amendments.
By an order made by consent in October 2016, Knowles J. directed the trial of four preliminary issues and this is my judgment upon that trial. Knowles J. made his order after Statements of Case but before any other case management in the claim; and since the parties were agreed, he did so on paper (without a hearing). The issues ordered to be tried as preliminary issues were these:
i) Is liability limited pursuant to Article IV r 5 of the Hague Rules or is it limited pursuant to Article IV r 5 of the Hague-Visby Rules (whether applicable compulsorily or contractually)?
ii) Whichever of the Hague or Hague-Visby Rules applies, does limitation fall to be calculated by reference to the Cargo in all three containers collectively, or should limitation be calculated by separate treatment of the Cargo in each container individually?
iii) If liability is limited pursuant to Article IV r 5 of the Hague Rules, are the relevant packages or units the containers or the individual pieces of tuna?
iv) If liability is limited pursuant to Article IV r 5 of the Hague-Visby Rules, are the containers deemed to be the relevant package or unit for the purposes of Article IV r 5(a), or are the individual pieces of tuna the relevant packages or units? In particular:
a) For the purposes of Article IV r 5(c), is it relevant to look at what is enumerated in the Draft Bill of Lading, or is it only relevant to look at what is enumerated in the Waybills?
b) Were all or any of the individual pieces of tuna, packages or units enumerated in the relevant document as packed in each container for the purposes of Article IV r 5(c)?
The reference to a 'Draft Bill of Lading' and 'Waybills' in Issue (iv)(a) above will become meaningful when I set out the facts, below. I should record now though that at trial Mr Thomas QC for the claimant conceded that the answer to Issue (iv)(a) is 'the latter' (look at the Waybills only), so I shall say no more about that Issue in this judgment.
The agreed, and ordered, terms for the trial of the preliminary issues included that they were to be tried, " on the basis only of the common ground set out in the first witness statement of Paul Charles Crane dated 19 September 2016, the documents in Exhibit PCC 1 [to that statement], and relevant provisions of COGSA 1971, the Hague Rules and the Hague-Visby Rules." Mr Crane is the partner at Bentley, Stokes and Lowless with conduct of the case on behalf of Maersk Line. His statement sets out matters of common ground that are in addition to matters of common ground on the pleadings and that are, as he explains, " agreed, so they would not need to be revisited and proved subsequent to any preliminary issues hearing". Thus, the agreed proposal that the court order this trial of preliminary issues was put forward on the basis that " The preliminary issues are not reliant on hypothetical assumptions".
The Facts
I have described the cargo in paragraph 2 above. That description is common ground. The rest of what I say about the facts in this section of this judgment is also all part of the common ground upon the basis of which it was agreed and ordered that the preliminary issues are to be determined.
Containers A, B and C were received by Maersk Line at Cartagena pursuant to a contract or contracts of carriage incorporating the Maersk Terms and containing an implied term entitling the shippers to demand that a bill or bills of lading be issued by Maersk Line. (For brevity's sake, in the rest of this section I shall express myself on the basis that there was a single contract covering all three Containers rather than separate contracts, one per container, which is in my judgment the correct analysis as I explain in the next section.)
The contract was for carriage to and discharge at Yokohama. Carriage was booked by Ricardo Fuentes e Hijos SA ('Fuentes'), as confirmed by a Maersk Line Booking Confirmation dated 16 November 2012. Fuentes is named in the Booking Confirmation as both the party making the booking and the 'Contractual Customer', although in the e-mail correspondence leading to the final booking Fuentes stated that the booking was " for Kyokuyo" and that the containers being booked for Japan were " All in Kyokuyo's name".
The booking was for the carriage of twelve 'Super Freezer' 40' x 9'6" containers at — 60°C, from Cartagena Terminal to Maersk Yokohama Terminal via Valencia and Singapore. The booked voyage itinerary was for carriage by Maersk Tangier from Cartagena to Valencia, Maersk Emden from Valencia to Singapore and Skagen Maersk from Singapore to Yokohama.
Maersk Line drew up and provided to the claimant a draft, straight consigned bill of lading ('the Draft B/L') numbered 558670598 (which was the Booking Confirmation number). A bill of lading issued in the form of the Draft B/L would have acknowledged shipment of " 11 containers said to contain 5782 PCS FROZEN BLUEFIN TUNA LOINS", listing those containers (which included Containers B and C) and the number of " PCS" and weight of tuna in each, and " 1 Container Said to Contain 666 PCS, 206 PCS FROZEN BLUEFIN TUNA LOINS, 460 BAGS FROZEN BLUEFIN TUNA OTHER PARTS", identifying Container A as that container, repeating its contents as "666 PCS" and stating a weight for those contents.
The typed cargo description I have just summarised came in the section of the Draft B/L headed " PARTICULARS FURNISHED BY SHIPPER", below the standard-form introduction, " Kind of Packages; Description of goods; Marks and Numbers; Container No./Seal No."
Towards the bottom of the front page of the Draft B/L, " 12 containers" was entered under the standard-form words, " ...
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