7263307 properly carry keep and care for cargo

8/3/2019 7263307 Properly Carry Keep and Care for Cargo

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CHAPTER 26PROPERLY CARRY, KEEP AND CARE FOR CARGO

Prof. William Tetley, Q.C.

This text was researched with a generous grant of Social Sciences and HumanitiesResearch Council of Canada (SSHRC).

INDEX

I. IntroductionII. Historical Background

1) Introduction 2) Bailment 3) Common carriage 4) The Hague/Visby Rules

5) The Rules - the basic framework for today's cargo litigationIII. Stringent ObligationIV. Erroneous DecisionsV. A Personal Obligation of the CarrierVI. Not an Absolute ObligationVII. Burden of ProofVIII. Obligations When Receiving Cargo

1) Obligation to study cargo 2) Obligation to refuse cargo 3) Instructions for special cargoesIX. Lack of Due Diligence, Improper Care of Cargo and Exculpatory ExceptionsX. Obligation to Sell Cargo

XI. Proper Care of Cargo -- Multimodal TransportXII. Examples of Proper and Improper Care

1) In general 2) Freeze damage 3) Contamination 4) Fire damage 5) Water or moisture damage 6) Rust 7) Lack of ventilation 8) HeatXIII. The Domestic Law of France

XIV. The Hamburg RulesXV. Conclusion


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CHAPTER 26PROPERLY CARRY, KEEP AND CARE FOR CARGO

I. Introduction

The basic obligations of the carrier in respect of cargo under the Hagueor Hague/Visby Rules are set out in art. 3(2):

"Subject to the provisions of Article 4, the carrier shall properly andcarefully load, handle, stow, carry, keep, care for, and discharge thegoods carried." (Emphasis added.)

It is noteworthy that the obligation is not only to "carry" but also to

"keep" and to "care for". This is very explicit language.

II. Historical Background

1) Introduction

The Hague and Hague/Visby Rules have not merely modified theresponsibility of bailees and carriers at common law for the care ofcargo but have replaced them with a new set of rules. The Hague andHague/Visby Rules also distinguish themselves from the law governingbailees and carriers by applying to the "ship", as well as to the

"carrier", and by applying as well in civil law jurisdictions, where theterms "common carrier" and "bailee" are unknown and have no place.

It is therefore dangerous, without proper warning to the reader, tocompare the responsibility of the carrier under the Hague orHague/Visby Rules with the responsibilities of bailees and commoncarriers under the common law. In the light of the foregoing caveat, itwould nevertheless seem useful to compare the responsibility ofbailees and common carriers, on the one hand, and of carriers and theship under the Hague and Hague/Visby Rules, on the other.

2) Bailment

When a bailee at common law is entrusted with goods for reward, he is"bound to ordinary diligence and to a reasonable exercise of skill"(1)and he is only responsible for losses occasioned by the ordinarynegligence of himself or of his servants.(2) The bailee, however, hasthe burden of proving that he or his servants were not negligent.(3)


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3)Common carriage

The shipowner's liability at common law depends on whether or not heis deemed to be a common carrier. If he is not, he will incur noresponsibility beyond that of any ordinary bailee for hire, that is to

say, the responsibility of ordinary diligence.(4) If, on the contrary, theshipowner is deemed to be a common carrier, the common law willimpose upon him exceptionally stringent obligations.(5)

It will not be enough for him to show that he was not negligent. Hemust deliver the goods at destination in the same condition in whichhe received them and his failure to do so will make him strictly liable,i.e. liable as an insurer.(6) The carrier may, however, escape liabilityby proving that one or more of the common law exceptions (i.e. act ofGod, Queen's (public) enemies, inherent vice, etc.) are applicable.(7)

4) The Hague/Visby Rules

The Hague and Hague/Visby Rules have modified some of theexceptional obligations imposed at common law on the carrier. Theobligation to provide a seaworthy ship is no longer absolute. Art. 3(1)only requires that the carrier prove that he exercised due diligence tomake the ship seaworthy before and at the beginning of the voyage.The obligation of the carrier in respect to caring for the goods at art.3(2) is that he act "properly and carefully" in performing his varioustasks, such as loading, stowing, etc. This obligation is slightly lessstringent than that of the insurer at common law. It lasts from loadingto discharge (the "tackle to tackle" period)(8) (including anydischarge, storage and transshipment operations conducted duringthat period which are authorized by the bill of lading(9)).The Hagueand Hague/Visby Rules carrier may also exculpate himself by any ofthe exceptions in art. 4(2)(a) to (q) and is furthermore protected bythe package or kilo limitation and the one-year delay for suit. Finally,and most importantly, the carrier's obligations are fixed by art. 3(8),which declares them to be of public order or of public policy. Inconsequence, they may not be reduced even by agreement of thecarrier and cargo interests.

5) The Rules - the basic framework for today's cargo litigation

The Hague and Hague/Visby Rules now provide the basic legalstructure for the adjudication of claims arising from the carriage ofgoods by water under bills of lading in and between most countries ofthe world. Consequently, common carriage is now irrelevant invirtually all bill of lading cases, and bailment is considered only very


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rarely in such litigation.(10) In fact, claims in tort generally are lessfrequent under Hague/Visby than they were under Hague, now thatart. 4bis(1) of Hague/Visby provides that the defences and limits ofliability of the carrier under those Rules apply whether the action isfounded in contract or in tort. The Hamburg Rules, at art. 7(1),

similarly provide that those defences and limits are the same,"whether the claim is founded in contract, in tort or otherwise."

In the United States, marine cargo claims are now treated as subjectto a single, statutory remedy (COGSA), rather than to an array ofcommon law claims,(11) thereby excluding bailment(12) and othertort remedies such as negligence. This is so despite the fact thatmarine cargo claims are regarded in the United States as "hybrid"claims sounding in both contract and in tort.(13)In short, bailment andcommon carriage are now matters of primarily academic and historical

interest in regard to the carrier's duty to care properly and carefullyfor cargo which it carries by sea under bills of lading.

III. Stringent Obligation

Care of the cargo under the Hague or Hague/Visby Rules is a stringentobligation, because art. 3(2) states that the carrier shall "properly andcarefully" care for the goods. The obligation therefore is not only to act"carefully" but also "properly". There is nothing in the Hague or

Hague/Visby Rules referring to due diligence to care for the cargo. Theonly references to "due diligence" in the Hague and Hague/ VisbyRules are at arts. 3(l) and 4(1), both in respect to making the vesselseaworthy, and at art. 4(2)(p) which refers to latent defects of theship "not discoverable by due diligence". Nevertheless, courts,particularly in the United States, continue to refer to due diligence tocare for cargo.

The reference to due diligence in caring for cargo has resulted infurther errors. Some courts have stated that the carrier need proveonly due diligence to care for cargo in order to exculpate itself. This is

incorrect - the carrier must prove the cause of the loss,(14) that heexercised due diligence to make the vessel seaworthy in respect of theloss,(15) and then he may prove one of the exculpatory exceptionslisted at art. 4(2)(a) to (q). At this point, lack ofproper and careful careof cargo is an argument available to the claimant, who uses it to showthe true cause of the loss and to contradict the exculpatory exceptionsraised by the carrier.(16)


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IV. Erroneous Decisions

There are a number of erroneous judgments, relying for the most parton one another, which state that the carrier need exercise only duediligence to care for cargo. A study of these judgments indicates thatthe theory, besides being contrary to the wording of the Rules, doesnot appear to be based on any valid precedent. Thus, in Calif. PackingCorp. v. Matson Navigation Co.,(17) it is stated: "As respondent maintains,if he can show due diligence in protecting the cargoes, he need not

show how the damage did, in fact, come about." The Court citesPettinos Inc. v. American Export Lines(18) as authority. This latter judgmentrelies on The Vermont,(19) which, it is submitted, is erroneous.(20)

Over the years, the same erroneous thinking has unfortunatelyaffected decisions on the burden of proof under COGSA.(21) Even theFifth Circuit, in recent years, has espoused the position that after thecargo claimant makes its prima facie case of carrier liability, "... theburden then shifts to the carrier to prove that it exercised due diligence toprevent the damage or that harm was occasioned by one of the exceptedcauses set out in 46 U.S.C. 1304(2)."(22) (Emphasis added).

The above statement is patently wrong, because 46 U.S. Code Appx.1304, i.e. COGSA at sect. 4, does not refer to due diligence to care for

the cargo, but only to due diligence to make the vessel seaworthybefore and at the beginning of the voyage, as required by sect. 3(1).The standard of proper and careful conduct in sect. 3(2), being closeto that of an insurer, is higher than the standard of due diligence insect. 3(1) and it continues from loading to discharge, as opposed tobeing limited to the pre-voyage period. As one U.S. court has correctlyput it: "The duty of care for the cargo is statutorily and conceptuallydifferent from the duty of due diligence to provide a seaworthyvessel."(23)

V. A Personal Obligation of the Carrier

The duty to look after the cargo carefully and properly is an obligationpersonal to the carrier. In consequence, carriers may not be excusedfor improper care of cargo by arguing that the loss or damage isattributable to their having followed the advice of competent


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independent contractors whose services they retained. In this regard,a number of English decisions have stressed the similarity between thecarrier's personal duty of due diligence in respect of seaworthiness andits personal duty of proper care of the goods carried. In InternationalPackers London Ltd. v. Ocean Steam Ship Co., Ltd., McNair J. held:(24)

"The obligation imposed by Art. III, r. 2, like the obligation imposed byArt. III, r. 1, to exercise due diligence to make the ship seaworthy, isan obligation imposed upon the shipowner himself which he cannotescape on proof that he employed a competent independent contractorwho was in fact negligent.... I can see no difference in principlebetween the shipowner's obligation under Art. III, r. 1, and that underArt. III, r. 2. As a matter of law, therefore, I would hold that thedefendants would be liable if the surveyor gave negligently wrongadvice."

This interpretation of art. 3(2) was approved by Lord Merriman inRiverstone Meat Co. v. Lancashire Shippng Co. (The Muncaster Castle),(25) thelandmark House of Lords decision on the carrier's non-delegable dutyof due diligence as regards seaworthiness under art. 3(1). It was alsoreiterated by McNair J. in Leesh River Tea Co. v. British Indian Steam NavigationCo.(26) Keeping, caring for and carrying the cargo may therefore beconsidered to be "non-delegable" responsibilities of the carrier.

With respect to the other obligations which the carrier must dischargeunder art. 3(2), however, notably loading, stowage and discharge, the

United Kingdom takes the position that the parties to the contract ofcarriage are free to agree to transfer some or all of those duties to theshipper, consignee or charterer (e.g. by inserting "FIO" clauses in thebill of lading).(27) Accordingly, the carrier is required to load, stow anddischarge carefully and properly, but only to the extent that it hasundertaken contractually to perform those specific functions.(28)

In the United States, judicial opinion is divided on the question ofwhether or not loading, stowing and discharging are "delegable" or"non-delegable" duties, but the majority opinion is that they are "non-

delegable" obligations, and that their transfer to cargo by contractviolates sect. 3(8) of U.S. COGSA.(29) It has been held that becauseof the non-delegable character of the carrier's duty under sect. 3(2) ofCOGSA,(30) "... a carrier may not insulate itself from liability forbreach of this duty by the use of independent contractors."(31)


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VI. Not an Absolute Obligation

The obligation under art. 3(2), although a stringent one, is notabsolute. The carrier must fulfill his obligations "properly andcarefully", which does not mean, however, in a manner absolute and

perfect. Lord Pearson, in Albacora S.R.L. v. Westcott & Laurance Line Ltd.,stated:(32)

"The word 'properly' adds something to 'carefully', if 'carefully' has a

narrow meaning of merely taking care. The element of skill or soundsystem is required in addition to taking care."

Lord Reid believed that "properly" meant in accordance with a sound

system and went on:(33)

"... the obligation is to adopt a system which is sound in light of all the

knowledge which the carrier has or ought to have about the nature ofthe goods."

The same understanding of "properly and carefully" prevails in British

Commonwealth countries(34) and in the United States.(35)

The addition of the word "properly" to the word "carefully" makes thedegree of care very close to the common carrier's obligation of insurer,

as opposed to the bailee's obligation of reasonable care and ordinarydiligence.(36) Proper care of the cargo involves a consideration of

whether the carrier and its servants, agents and contractors haveacted competently in accordance with contemporary industry

standards.(37)

The word "properly" does not define the scope of the voyage or theport of discharge; rather they are decided upon by the parties in the

bill of lading.(38)

Because the obligations imposed by art. 3(2) are not absolute, but

remain subject to art. 4, the carrier may avoid liability by proving thatthe loss or damage was in fact caused by one of the exceptions of art.

4(2)(a) to (q). U.S. COGSA, at sect. 3(2),(39) omits the introductorywords "Subject to the provisions of Article 4" which figure at thebeginning of art. 3(2) of the Hague and Hague/Visby Rules. Thisomission does not, however, make the obligation of proper and carefulcare of the cargo absolute in the United States or more stringent than

in jurisdictions where the Rules themselves apply.(40)


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VII. Burden of Proof

The burden of proof in relation to care of cargo is the same as in the

case of stowage, and is initially on the claimant. Because most, if notall, of the evidence is available to the carrier, however, the burden ofproof soon shifts to the carrier, once the claimant has made initial

proof of improper care.(41)

VIII. Obligations When Receiving Cargo

1) Obligation to study cargo

The carrier must study cargo carefully before loading, in order to beable to care for it. This was stated in Drummond Coal Co. v. InteroceanShipping Co.:(42)

"The Carriage of Goods by Sea Act, 46 U.S.C. 1300 et seq., renders itmandatory for a shipowner to use all reasonable means to ascertainthe characteristics of the goods tendered for shipment."

In Granite State Ins. Co. v. M/V La Pampa, it was held that:(43)

"While the bulk soybeans were aboard the LA PAMPA, it was the

obligation of Buries Markes, Ltd. [the shipowner and manager]properly and carefully to handle, carry, keep, and care for the cargo.United States Carriage of Goods by Sea Act, 46 U.S.C. 1303(2). Ithad the duty to exercise due care to ascertain and consider the natureand characteristics of the cargo, and it was 'under a continuing duty toprotect' the goods, including 'an obligation to inspect' for deteriorationwhich might occur because of delays or because of the inherentcondition of the cargo."

The carrier, in studying cargo, must learn from the past and must

employ modern methods and up-to-date practices. Roskill J. in TheFlowergate(44)gave a warning to carriers of future shipments of cocoa:

"... I wish to make it clear that my decision in favour of the defendants

on the facts of this case does not, and must not, be understood to

involve that shipowners can in future safely and without financial riskto themselves continue to accept cocoa for shipment in West Africa for

delivery in North-West Europe whatever its moisture content may be


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and then, if and when damage occurs, successfully set up the same

defence as that which has succeeded in this case. This case has

revealed much regarding the shipment and carriage by sea of cocoawhich seems not to have been hitherto generally known among

shipowners and their masters and officers and others immediately

concerned with the day-to-day practical side of the problem. If in thefuture, and in the light of what is now known, shipowners continue toaccept cocoa for shipment merely on the strength of its apparentcondition, and heedless of the implications of what its pure condition

may in fact be by reason of its moisture content, they may find it said

against them hereafter that they have engaged themselves to carrythat cocoa safely to destination, whatever that moisture content may

ultimately prove to be."

The Courde Cassation(45)held that in respect of lobster tails which were

described by the shipper as "frozen", the carrier should have verifiedthe actual condition of the cargo which in fact was "surgels" (deepfrozen) and therefore required being kept at -18 C. It thereforeupheld the Courd'Appel de Douai,(46)which had declared that the carrierwas a specialist who must enquire as to how the cargo should becarried, being alerted by the word "frozen" appearing on the bill oflading. The Courd'Appel de Paris,(47) on the other hand, held that thecarrier was not responsible for products which should have beencarried at -18 C. ("surgels"), when the goods were shipped as merelyrequiring "refrigerated stowage" and the tariff rate was for goods thatwere "congels" (frozen) rather than "surgels" (deep frozen).

2) Obligation to refuse cargo

A carrier is not obliged to accept cargo if he cannot give it properstowage and care during the voyage. Rather he should refuse thecargo or advise the shipper that he cannot provide proper stowage andcare. Thus in The Ensley City(48)it was stated:

"There is no absolute obligation on a vessel to accept a cargo. Indeed,it should not be accepted unless it can be given the type of stowage

that its character requires, and the placing of conditions in a bill oflading does not relieve the vessel of the obligation to take appropriate

care of the cargo."

More recently, in A. & D. Properties, Inc. v. M//V Volta River, it was similarlyheld that:(49)

"A carrier is not obligated to load a cargo which, through no fault of


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the carrier, cannot be carried without danger to the vessel, her crewand her other cargo."

In other words, when the carrier cannot properly and carefully carrycargo which is presented to him for carriage, the carrier should either

refuse the cargo or obtain the consent of the shipper to carry thegoods under special terms and conditions. A non-responsibility clausein the bill of lading may be ineffectual, being contrary to art. 3(8), asmay be the exculpatory exceptions of art. 4(2) such as inherent defector insufficient packing because of disclosure of the particular nature ofthe cargo by the shipper.(50)

It is interesting to note that in cases where negligent cargo stowagehas been held to compromise the safety of the ship, rendering thevessel unseaworthy, the courts have alluded to the carrier's obligationto refuse the cargo. In Waterman Steamship Corp. v. Virginia Chemicals,Inc.,(51) for example, where a cargo inflammable when mixed withwater was stowed contrary to applicable U.S. Coast Guard regulations,thereby jeopardizing the vessel's safety, the Court stated thatbecause:

"Waterman Steamship Corporation accepted a hazardous cargo ofsodium hydrosulfite... having done so, 'it then accepted the obligationsto carry [the cargo] to safety'. Verbeeckv. Black Diamond Steamship Corp.269 F.2d 68 at 70, 1960 AMC 163 at 166 (2 Cir. 1959)."(52)

In A.R. Lantz Co., Inc. v. United Trans-Caribbean,(53) where the shipownerhad failed to maintain the ship's refrigeration equipment in propercondition, making the vessel unseaworthy for the carriage of frozenshrimp, the Court followed the same principle and stated that "... theowner effectively created and continued the conditions resulting [in]the casualty", because despite the surveyor's findings, the carrier tookcharge of the cargo, decided to commence the voyage in question anddid not transship the cargo as suggested.(54)

3) Instructions for special cargoes

We have seen that the carrier is obliged to study cargo; but theshipper has the reciprocal obligation to give special instructions forspecial cargoes (i.e. unusual shipments).(55) Thus, the Cour d'Appel deParis(56) held that where tractor radiators, which contained water,froze and cracked, and there had been no special recommendation

concerning the cargo, the carriers were not responsible.


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American courts have not hesitated to apply this principle. In Tenneco

Resins, Inc. v. Davy International, AG,(57) for example, where chemicalcatalyst was shipped in metal drums, the manufacturer of the catalystneglected to stencil on the sides of the drums, in plain view and inaccordance with industry practice, the international umbrella symbol

indicating that the drums were not watertight. On most of the drums,the symbol was instead stenciled onto the lids of the drums, where itwas invisible to the carrier after the drums were placed on pallets andstacked in tiers on flats and stackmasters prior to loading. Nor did themanufacturer instruct the carrier prior to loading as to the need tokeep the drums dry. The Court exempted the carrier from liability formoisture damage to the catalyst, on the ground that the shipper hadfailed to meet its obligation to advise the carrier of any specialrequirements of the cargo.(58) The Court noted that: "This view placesthe burden of inspection and ascertainment of special stowage needs

on the party most likely to know of or best equipped to discover suchneeds."(59)

The same principle and precedent were applied in Sun Co. Inc. v. S.S.Overseas Arctic,(60) a case involving a charterparty governed by U.S.COGSA. High-temperature fuel oil, which solidifies or congeals at hightemperatures and often requires heat to remain in a liquid state, wasloaded by the charterer, contrary to the industry standard,(61) at anaverage temperature below its "pour point" (the temperature at whichthe oil begins to solidify, so that it can no longer be poured). Althoughthe vessel's master informed the charterer of the loading temperature

of the oil before the ship departed the load port, the shipper did notinform the carrier of the cargo's pour point nor instruct it to increasethe temperature. Moreover, during the voyage, the master compliedwith his obligation under the charterparty to maintain, but not toincrease, the loading temperature of the oil. The Fifth Circuit dismissedthe charterer's argument that the carrier had an obligation, undersect. 3(2) of COGSA, to know the special characteristics and heatingrequirements of the cargo, holding:(62)

"... this Circuit has rejected the argument that carriers have a legal

duty to learn the special needs of their cargo. Tenneco Resins, Inc., 1990AMC at 406, 881 F.2d at 214. To the contrary, we have ruled that thecharterer 'has an obligation to inform the carrier of the cargo's specialrequirements.' Id. (emphasis added). We have determined that thisview properly places the burden to discern cargo's special stowageneeds upon the party which will most likely know or have access toknowledge of such needs. Id. (quoting O'Connell Machinery Co. v. M/VAmericana, 1986 AMC 2822, 2827, 797 F.2d 1130, 1134 (2 Cir. 1986))."


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The carrier was therefore exculpated from liability for the loss,attributable to the act or omission of the shipper.

In Cigna Insurance Co. of Puerto Rico v. M/V Skanderborg,(63) the carrier wasnot responsible where tins of olive oil were ruined by rust as a result of

being packed by the shipper in unventilated containers provided by thecarrier, where the inadequacy of the packing was non-apparent to thecarrier and the shipper had given no special instructions as to the typeof containers needed.(64)

Special shipping instructions are not necessary if the care required bycertain commodities is well known in the trade, as in the case of liquidtallow.(65)

Once a carrier receives special instructions, he must follow those

instructions, or negotiate new terms and conditions, or refuse thegoods. Otherwise, he will be responsible for the consequences.(66) InTransatlantic Marine Claims Agency, Inc. v. S.S. Zyrardow,(67) for example, thecarrier was found liable for the deterioration of a cargo of bananaswhere it had failed to heed the charterer's instructions calling for theventilation of the storage holds sixty hours after the closing of thecompartments, in order to rid the compartments of high levels ofcarbon dioxide and ethylene, which accelerate the ripening process.

The Cour d'Appel de Rouen(68) also held a carrier liable for failing tomaintain a containerized cargo of frozen shrimp at the temperature of

-18 C or lower, as specified by the shipper, and for the fact that therewas no thermometer inside the container. Another carrier was found atfault, by the Tribunal de Commerce de Marseille,(69) for failing to maintain acontainer's refrigeration system in operation during the voyage and fornot ascertaining the proper refrigeration temperature at which thechemical concerned should be carried, the Court dismissing its defencethat the shipper's instructions on this matter had been imprecise.

In another case decided by the Cour d'Appel de Dijon,(70) a freightforwarder (commissionnaire de transport) was found responsible for one-half

the damages sustained by a shipment of photographic material,because it had not indicated on the bill of lading that the relevantpackages were to be shipped in reefer containers, as the shipper hadspecified, but had merely indicated that the bill of lading wascomplementary to an earlier bill which it had issued for similar goodssent on another ship. The carrier was found responsible for the otherhalf of the damage for not having secured a proper substitute vessel tocarry the second shipment.


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IX. Lack of Due Diligence, Improper Care of Cargo and Exculpatory Exceptions

The courts, in the final analysis, must decide whether the cargo loss ordamage results from: a) a lack of due diligence to make the vesselseaworthy; b) improper care of the cargo or c) one of the exculpatoryexceptions protecting the carrier.

In Royal Ins. Co. of America v. S/S Robert E. Lee,(71) the Court had toconsider all three of those issues, in a claim resulting from thepuncturing of a LASH barge carrying bags of wheat flour, causing thewetting of most of the bags. The Court found that the carrier hadexercised due diligence to make the barge seaworthy at the beginningof the voyage, but had failed to keep and care properly for the cargo,

in permittting the barge to be moored at an unsafe pier prior to itstowage to the carrying ship, where there was a danger of its beingpunctured. The defence of error of navigation was dismissed, thecarrier having failed to discharge its burden of proving that the bargehad been holed while it was being towed to the carrying ship and thatan error of navigation had caused the holing.(72)

In The Isla Fernandina,(73) the Court concluded that damage sustainedby a banana cargo had not been caused by an error of management orany latent defect not discoverable by due diligence. Rather, the cause

was improper care of the cargo in that: a) the ship's generators, owingto their age and condition, lacked sufficient power to preserve thebananas when one generator failed; b) the inoperative state of anothersystem prevented accurate monitoring of the cargo's temperature; c)fans used following the failure of a temporary replacement generatorcreated fluctuating temperatures, causing some of the bananas toripen and others to chill; d) the shipper's letters of instruction hadbeen breached as to the temperatures required and their recordingduring the voyage. Had they been cared for properly, the bananascould have lasted 40 days at sea and would have arrived in amerchantable condition, despite the ship's grounding and a six-day

period spent searching for a replacement generator.

If the vessel is not properly equipped to handle the cargo, the courtsare likely to find that the vessel is unseaworthy and that there hasbeen a lack of due diligence to equip the ship properly before and atthe commencement of the voyage. In A.R. Lantz Co, Inc. v. United Trans-Caribbean,(74) the Court found that the vessel was unseaworthy to


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carry frozen shrimp, because it was missing the necessary spare partsto maintain the refrigeration unit and one generator was inoperative,making the "vessel's refrigeration system unsuitable before the vesselbroke ground."(75) In making this decision, the Court followed thefinding of the Second Circuit in Atlantic Banana Co. v. M/V Calanca,(76)

which found that improper maintenance and the inoperativerefrigeration equipment made the vessel unseaworthy.

A similar example is the case ofAssociated Metals v. Olympic Mentor,(77)where water-sensitive steel coils were damaged by sweat due to lackof proper ventilation. The Court held that the shipowner's failure toprovide equipment to monitor the temperature and relative humidity inthe holds of the ship was a lack of due diligence on the part of thecarrier, which rendered the vessel unseaworthy to carry a steel coilcargo. As a result, the ship was unable to properly care for goods of

that type. In addition, the vessel relied on natural ventilation that wasinadequate for the type of cargo concerned and lacked fans ormechanical ventilating devices to prevent sweating.(78)

It appears that if the cargo is negligently stowed, to the point ofcompromising the safety of the vessel or other cargo, the court willfind the vessel unseaworthy, as illustrated by the finding in WatermanSteamship Corp. v. Virginia Chemicals, Inc.(79) In that case, the negligentstowage of the hazardous cargo, which was flammable when mixedwith water, caused a fire. The negligent stowage prevented early

discovery of the fire, as well as preventative safety measures and easy

disposal of the cargo once ignited. The Court found that stowing thehazardous cargo of sodium hydrosulfite in a lower hold and thenwalling in the cargo with palletized tape "...[was] negligent and

rendered the vessel unseaworthy."(80)

Courts also strive to distinguish cases where the loss or damage

results from lack of proper care of the cargo from those where theeffective cause of the harm is one of the exculpatory exceptions of art.

4(2)(a) to (q) of the Hague or Hague/Visby Rules.

In Banana Services Inc. v. M/S Tasman Star,(81) for example, a fruit cargowas damaged when a fire on board disabled the ship's refrigerationcontrol panel, making it impossible to refrigerate the fruit properly.The Court found that the real cause of the loss was the fire, which,although it did not directly ignite the cargo, nevertheless validlyexculpated the carrier from liability under the fire exception of sect.4(2)(b) of U.S. COGSA(82) and the U.S. Fire Statute.(83)


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Conversely, in Ins. Co. of N. America v. M/V Frio,(84) involving thawdamage to a cargo of frozen orange juice concentrate, the carrierfailed to establish either the defence of insufficient packaging or theexception of inherent defect of the goods, and was held liable becauseit had not rebutted the presumption resulting from the plaintiff's proof

that the concentrate had been loaded in good condition and wasdischarged damaged.

The Belgian Cour de Cassation(85) has held that the failure to perform,or to perform correctly, acts aimed principally at safeguarding the

cargo does not constitute an error of navigation or management of theship under the Belgian Maritime Law(86) (Belgium's enactment of the

Hague/Visby Rules).

Whenthe loss is due to both a validly excepted cause and lack of

proper care, the carrier is responsible, unless he can separate the lossresulting from each cause. This was clearly stated by the U.S.

Supreme Court in The Vallescura:(87)

"... the carrier must bear the entire loss where it appears that theinjury to cargo is due either to sea peril or negligent stowage, or both,and he fails to show what damage is attributable to sea peril."

If the carrier can separate the losses, then he is responsible only forthe loss caused by his improper care. This has been described as a"difficult task".(88)

In Lekas & Drivas v. Basil Goulandris,(89) a cargo of cheese was shipped ona vessel which met with an excepted peril (restraint of princes). Thisdelayed the voyage and the cheese spoiled. The claimant tried toprove that the spoilage arose because of improper care of the cargo,arguing that the cheese should have been sold or refrigerated at anintermediate port where the vessel was delayed. The Second Circuitexculpated the carrier stating:

"To hold that when a carrier has shown that the loss arose as a

consequence of a restraint of princes, sect. 4(2)(g), it still has theburden of negating any other fault or neglect of its agents or servantswould be to read the qualification of (q) into (a)-(p), althoughCongress did not put it there. It follows that libellant had the burden ofshowing circumstances from which a trier of the facts could properlyconclude that the master's failure to dispose of the cheese at Adenwas a breach of sect. 3(2). Had libellant done this, we would have aparallel to Schnell v. Vallescura, with one cause proved to be excepted and


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the other not, and the teaching of that case, which we assume to beapplicable to COGSA in this respect, would then place uponrespondents the burden of showing how much of the damages camefrom the excepted as distinguished from the unexcepted cause.However, libellant did not sustain the burden required to bring it to

that stage."

Aperil or a restraint of princes or a reasonable deviation does not, ofcourse, absolve the carrier from care of cargo. A carrier was justifiedin deviating to Malta in order to discharge cargo because his ship hadbeen requisitioned for the Falklands War. Nevertheless he was heldresponsible for failing to care for the cargo in Malta.(90)

In The Oakhill(Eisenerz v. Federal Commerce),(91) a ship went aground dueto an error in navigation. The cargo of different grades of pig iron was

negligently mixed and damaged when removed at an intermediaryport, in order to repair the ship. The carrier was held liable. The Courtpointed out that the loss was directly due to a lack of care of cargoand not to an error in navigation.

Similarly, in Granite State Ins. Co. v. M/V La Pampa,(92) where the claimantproved that the carrier had failed to take all reasonable and necessarymeasures to prevent sweat damage to a cargo of soybeans, and toventilate the hold in question, the carrier was held liable for the entireloss under the Vallescura Rule, because, despite some evidence that thesoybeans had a higher than normal moisture content upon loading, the

carrier "...has not met the burden of showing what part, if any, of thedamage is attributable to such a condition."

On the other hand, in Trade Arbed, Inc. v. M/V Swallow,(93) where theclaimant proved that salt water corrosion damaged a steel cargo, thecarrier was able to show that some of the cargo had not beendamaged. The Court rejected the carrier's defence that all of thedamage had been caused by an unexplained "selective attack" of saltwater on the damaged cargo, but, citing the Vallescura Rule, heldthat:(94)

"...the proof offered by the defendants to demonstrate the selectivenature of the attack satisfies the defendants' burden of segregatingthe portion of the loss caused by their negligence or breach of dutyand the portion caused by something for which the carrier is notresponsible."


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X. Obligation to Sell Cargo

It is possible that under certain circumstances, a carrier may beobliged to land and sell cargo to prevent it from deteriorating. In Lekas

& Drivas v. Basil Goulandris,(95) itwas held that:

"... circumstances may arise when the master of a ship has not merelythe authority but, under sect. 3(2) ofCOGSA, the duty to sell cargo thatis at risk of further deterioration, communicating with the owner if thatis feasible, but still having both the authority and duty if it is not."

XI. Proper Care of Cargo -- Multimodal Transport

Goods are often carried today under a multimodal (combined)transport contract, with the ocean carrier assuming responsibility forthe merchandise, not merely until its discharge from the ship, but untilits final delivery by a road, rail or air carrier whom it hires.(96) Theocean carrier then remains liable for loss of or damage to the goodsuntil delivery of the cargo by that contractor, who acts as the carrier'sagent in performing the non-marine leg of the transportation.(97) Theobligation of the ocean carrier (the contracting carrier) properly andcarefully to keep, carry and care for the goods, as prescribed by art.3(2) of the Hague or Hague/Visby Rules, is then extended to deliveryof the goods by the carrier's agent (the performing carrier).(98) Thevarious defences and exceptions of art. 4(2)(a) to (q) are then alsoavailable to the ocean carrier, who, of course, has the burden of proofof their application.(99) The ocean carrier, under such a multimodalcontract, can then be held liable, together with the performing road,rail or air carrier, for the latter's negligence in securing properdelivery, as well as for its own negligence in the selection of anincompetent contractor.(100)

XII. Examples of Proper and Improper Care

1) In general

The following are useful general considerations pertinent to, andparticular examples of, the obligation to "properly and carefully ...carry, keep, care for ... the goods carried":

Vimar Seguros Y Reaseguros v. M/V Sky Reefer:(101) The "properly andcarefully" obligation was characterized by the U.S. Supreme Court as


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one of several "substantive obligations and particular procedures that3(8) [of U.S. COGSA] prohibits a carrier from altering to itsadvantage in a bill of lading."

Cross Equipment, Ltd. v. Hundai Merchant Marine (America) Inc.:(102) COGSA

sect. 3(8) does not invalidate a bill of lading clause permitting thecarrier to repair the cargo while it is in the carrier's custody, in orderto be able to discharge it "properly and carefully," as required by sect.3(2).

Ace Bag & Burlap Co., Inc. v. Sea-Land Service, Inc.:(103) The duty of care ofcargo under U.S. COGSA applies only from the loading of the goodsuntil the cargo is released from the ship's tackle, with the Harter Actapplying to the period after discharge; nevertheless, COGSA'sapplication may be extended from discharge through delivery by the

bill of lading.

Majestic Electronics, Inc. v. M/V Jin He:(104) Where a carrier loses thegoods, or negligently fails to protect them from theft, the carrier mayhave failed to meet its duty of care under COGSA.

Orient Merchant-Olau Gorm:(105)The vessel ignored warnings of ice in theSt. Lawrence River and then unjustifiably abandoned the voyage whenlocked in the Great Lakes during the winter. The Court held that whilethus detained, the carrier had the duty to care for the cargo by theleast expensive reasonable method and could not charge for storage

on board.

2) Freeze damage

In Pueblo International, Inc. v. Puerto Rico Marine Management, Inc.,(106) theshipper had requested the carrier to maintain its cargo of apples andpears at 34 Fahrenheit during transit in reefer containers. The bill oflading provided for a permissible margin of error of plus or minus 5Fahrenheit. Because the shipper knew or should have known thatapples and pears suffer injury at temperatures below 29.3 F. and29.2 F. respectively, it had exposed the fruit to a serious risk offreeze damage by specifying a carrying temperature of 34 F., in viewof the 5 F. margin of error. The temperature inside the reefer unitshad never fluctuated above or below the 5 variance permitted, norwas there any malfunction in the refrigeration system. The carrier thusestablished that the freeze damage resulted from the act of theshipper (COGSA, sect. 4(2)(i)(107)), rather than from any impropercare of the cargo on its part.(108)


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3) Contamination

In Hershey Foods Corp. v. Waterman Steamship Corp.,(109) a cargo of peanutswas contaminated by aflatoxin when delivered to the consignee.

Although the carrier had exposed the cargo to heat caused by directsunlight and had not properly ventilated it during the voyage(conditions conducive to the growth of the mold which causesaflatoxin), the Court held that the shipper had failed to prove its primafacie case that the peanuts were free of aflatoxin when delivered to thecarrier, because the testing methods employed at loading wereoutdated and the sample used was inadequate. Nor was there proofthat the peanuts had taken any harm while being transported to thecarrying ship aboard the defendant's barges.(110)

4) Fire damage

Liberty Shipping Lim. Procs.:(111) Once a fire has started, a carrier still hasan obligation to cargo to extinguish it and to avoid damage.(112)

Waterman Steamship Corp. v. Virginia Chemicals, Inc.:(113). The carrier couldnot invoke the exemption of U.S. COGSA sect. 4(2)(b) in respect of ashipboard fire, because its stowage, contrary to applicable CoastGuard regulations, of a cargo of sodium hydrosulfite, which becomesinflammable when mixed with water, proximately caused the fire, thusconstituting "actual fault or privity" on the part of the defendant'smanaging officers and agents.

5) Water or moisture damage

Arrondissementsrechtbank Rotterdam:(114) The vessel owner is responsiblefor damage to a cargo of sugar because it used securing planks whichexuded moisture, to which sugar is vulnerable.

6) Rust

InETS GustaveBrunet, S.A. v. M.V. Nedlloyd Rosario,(115) lace-makingmachines packed in open-top containers and carried on deck sustainedcorrosion damage due to exposure to salt water during a stormy NorthAtlantic crossing from the United States to France. The carrier washeld liable, on the ground that deck carriage constituted an"unreasonable deviation".(116) In addition, the Court, dismissing thedefence of insufficiency of packing,(117) found that the carrier hadviolated sect. 3(2) of COGSA(118) by its improper care of the cargo, inparticular by: a) using tarpaulins that did not fully cover the


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containers; b) stowing the containers on deck facing the wind; c) notattempting to repair ripped tarpaulins during the voyage when theweather permitted; and d) failing to carry extra tarpaulins aboard thevessel.(119)

7) Lack of ventilation

InAll American Trading Corp. v. S/S New York Maru,(120) a cargo of nailsarrived in damaged condition as a result of sweat damage, caused byimproper ventilation. The court held that the carrier could haveforeseen the resulting condensation and did not take proper care ofthe cargo by putting the nails in a container which lacked adequateventilation, when a container offering adequate ventilation wasavailable, albeit at greater expense.

The Starsin:(121) "In truth, the breach of duty of care consists... in

exposing goods in the shipowner's possession to the risk of damage bycarrying them in holds which have been rendered unfit for the cargoby lack of dunnage, lack of ventilation and by the presence of cargolikely to create condensation."

8) Heat

In Insurance Co. of N. America v. M/V Frio Brazil,(122) the carrier failed tomaintain the reefer unit containing pallets of orange juice concentrateat the required cool temperature and stowed it beside drums ofwarmer concentrate, resulting in a heat transfer between the drumsand the pallets. The resulting deterioration of the orange juiceconcentrate rendered the carrier liable.

9) Theft

The carrier is responsible for theft of cargo aboard the vesselperpetrated by its own servants or agents, where it cannot establishany defence under art. 4(2)(a) to (q) of the Hague and Hague/VisbyRules. In addition, the carrier, where it acts as a multimodal carrierunder a combined transport bill of lading, may also incur liability for

pilferage of the goods resulting from the fault or negligence ofindependent contractors acting as its agents ashore (e.g., stevedores,warehousemen and on-carriers). A case in point is the decision inHartford Ins. Co. v. M/V OOCL Bravery,(123) where the ocean carrier, undera multimodal bill of lading, was found liable for the post-dischargepilferage of bicycles from a container which had no anti-theft devicesand which was left unattended on a truck on a public road at night bya truck driver employed by the ocean carrier's inland trucker.


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XIII. The Domestic Law of France

The Decree of December 31, 1966, at art. 38, has a provision similarto art. 3(2) of the Hague Rules, which reads:

"Notwithstanding all clauses to the contrary, the carrier will proceed ina proper and careful way with the loading, handling, stowage,transport, care and unloading of the cargo. The carrier owes the cargothe standard of care conforming to the agreement between the partiesor the convention used by the port of loading." (Translation)

This obligation applies, not only during the "tackle to tackle" period(i.e. from loading to discharge), but during the whole of the carrier's

period of responsibility provided for by art. 27 of Law No. 66-420 ofJune 18, 1966, being the period from the "prise en charge" (the time thecarrier takes physical possession of the goods to be shipped) untildelivery.(124)

This article is seen to be the equivalent of art. 3(2) of theHague/Visby Rules. The carrier's obligation is to transport the cargo insuch a way that it arrives at its destination in the same state as it wasdelivered to the carrier.(125) It has been interpreted to mean that thecrew must take all customary steps, including such measures as

ventilation, care of refrigeration equipment, closing the hatches in astorm, to ensure that the cargo does not sustain damage.(126) Frenchauthors also consider that part of the carrier's duty to care for thecargo could include making arrangements for its transshipment shouldthe vessel become unseaworthy, as prescribed by art. 40 of theDecree of December 31, 1966.(127). If the cargo does not arrive at itsdestination in the same condition, then the carrier is held liable andthe lack of care of the cargo is considered a commercial fault, unlessthe carrier falls under the exculpatory provisions of the last paragraphof art. 27 of the Law of June 18, 1966, which reads:

"The shipper or his legal representative will however in all cases, beentitled to show that the loss or damage is due in whole or in part to afault of the carrier or his servants, other than a fault prescribedhereinabove in sub-paragraph b)." (i.e. error in navigation)(Translation)

The French catch-all paragraph, coming as the last paragraph of art.


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27, which lists the exculpatory exceptions, is in some ways in a morelogical position than art. 3(2) of the Hague and Hague/Visby Rules,which comes before the exceptions of art. 4(2) and therefore must bepreceded by the words: "Subject to the provisions of Article 4 .... ".Art. 27 last paragraph also makes it clear that claimant has the burden

of proof.

A study of the jurisprudence in France shows no marked difference,however, as between care of the cargo under the domestic Law ofJune 18, 1966 and the Hague and Hague/Visby Rules. In every case,the carrier must exercise a high degree of care of the cargo and theclaimant must prove the fault of the carrier or his representatives inlaw. It should be added that France has a tradition of demanding ahigh degree of "care" from carriers, although the second paragraph ofart. 38 of the Decree of December 31, 1966 is not severe and reads:"It (the carrier) must afford the goods reasonable care in accordancewith the agreement between the parties or the practices at the port ofloading."(Translation)

For example, the Cour d'Appel d'Aix(128)held a carrier responsible forimposing the use of its pallets on the shipper, which pallets were made

of new humid wood, resulting in damage to a cargo of bagged flour.

The carrier could not invoke any of the exceptions under art. 27.

The Cour d'Appel de Rouen(129) held a carrier responsible for damagecaused by excessive moisture to a cargo of coffee, partly because

there was no convincing proof that the humidity in the containers wasexcessive before departure, and partly because the carrier hadpossession of the containers for 168 days before delivery, for a voyage

that should have taken no more than thirty days.

The Cour d'Appel de Rouen(130) also held a carrier responsible for thawdamage to a cargo of frozen raspberries, because they were not keptat the contracted temperature throughout the voyage. In this case, theCourt made it very clear that substantial proof must be presented in

order to invoke the exception of act of the shipper under art. 27(g) of

Law No. 66-420 of June 18, 1966. In this case, a graph showing theinternal temperature of the container throughout the voyage was not

sufficient proof that the raspberries were not properly frozen at

loading.

It is also interesting to note that while clauses in bills of lading

exempting the carrier from liability due to the late arrival of the cargo

(e.g. loss of market) are valid, such clauses do not exempt the carrier


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from liability where the damage to the cargo itself results directly from

the tardiness. Thus the Cour d'Appel de Versailles(131) held that thecarrier was responsible for the over-ripeness of a cargo of fruit causedby its late delivery, where the fruit was loaded nine days later than the

carrier had promised and on a different vessel.

One difference between the law of France and the Hague/Visby Rulesis how the courts treat the intersection of exculpatory exceptions and

improper care. Unlike the Hague/Visby Rules, where the carrier is held

totally responsible for the damage unless the damage caused by

improper care can be separated from the damage falling under one ofthe exculpatory exceptions, the rule in France is that reparation for

damage is proportional to the causal nature of each element

concerned.(132) For example, the Cour de Cassation(133) held that thecarrier had to indemnify for partial damage to a printing press which

had a latent defect that was aggravated by the conditions of thecarriage.

XIV. The Hamburg Rules

The Hamburg Rules have no particular provision similar to art. 3(2) of

the Hague and Hague/Visby Rules. Rather art. 5(l) of the HamburgRules encompasses the obligations in art. 3(2) when it states:

"The carrier is liable for loss... unless the carrier proves that he, hisservants or agents took all measures that could reasonably be required

to avoid the occurrence and its consequences."

This may, however, be a slightly lighter degree of care than "properly

and carefully" of art. 3(2) of the Hague and Hague/Visby Rules.

XV. Conclusion

"I recommend to you to take care of minutes:for hours will take care of themselves."

Lord Chesterfield, Letters to his Son, November 6, 1747 (published 1774)

Proper and careful transportation of cargo is perhaps the most basicand obvious duty of the carrier of goods by sea. Proper carriage nolonger entails the liability of the carrier known to traditional commonlaw and civil law. Nevertheless, the standard of care, in respect of


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keeping, caring for and carrying the goods, under the Hague andHague/Visby Rules (a standard also implicit under the more generalwording of the Hamburg Rules), is definitely higher than that of thebailee at common law or the "bon pre de famille" (prudent administrator)at civil law. Although not "absolute", it is a stringent standard,

approximating that of the insurer, which should not be confused withthe "due diligence" standard applicable to the carrier's obligation inregard to seaworthiness of the vessel. Proper care of cargo requires,not just ordinary prudence, but a rigorous observance of "bestpractices" current in the contemporary shipping industry, as adaptedto the specific cargo and voyage at hand. To act properly and carefullywith respect to the cargo is also a personal obligation of the carrier.Depending on the circumstances, it may entail the requirement thatthe carrier study, and even refuse, cargo, or sell it to avert itsdeterioration. It certainly includes observing special instructions that

may be given by the shipper, as well as those requirements which thenature and characteristics of the goods obviously necessitate, toensure their arrival at destination in a sound and marketable condition.And while the proper care obligation is one which, under Hague andHague/Visby, normally exists only "from tackle to tackle", it mayextend to delivery in the context of multimodal carriage under thoseRules or corresponding national statutes, and, under the HamburgRules, the obligation (implied in the general terms of art. 5(1))extends from "port to port". Proper care of cargo remains afundamental concept in any regime of maritime transportation, whichcarrier ignore or minimize at their peril.

1.

1 Story on Bailment, 8 Ed., Boston, 1870, para. 457, at p. 396.

2.

2 A shipowner, when acting as a common law bailee for reward, isalso liable for the damage to the cargo caused by the negligence of asub-contractor's employees: B.R.S. Ltd. v. Arthur V. Crutchley Ltd. [1968] 1Lloyd's Rep. 271 at p. 289 (C.A.); The Arawa [1977] 2 Lloyd's Rep. 416at p. 424 (per Brandon J.).

3.


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3 N.E. Palmer, Bailment, 2 Ed., 1991 at p. 49: "When goods are injuredor lost while in the possession of a bailee ... the bailee must proveeither that he took the appropriate care of them or that his failure todo so did not contribute to the loss." As to the standard of proof to beattained by a negligent bailee who desires to establish that his

negligence did not cause the loss, the issue was discussed, but notdecided, by Sachs LJ. in B.R.S. Ltd. v. Arthur V. Crutchley, Ltd. [1968] 1Lloyd's Rep. 271 at p. 289 (C.A.) See also Travers & Sons Ltd. v. Cooper[1915] 1 K.B. 73 (C.A.). See also W. Tetley, "Tug and Tow (AComparative Study - Common Law/Civil Law) - U.S., U.K., Canada andFrance" Il Diritto Marittimo 1991, 893 at p. 901.; Scrutton, 20 Ed.,1996, art. 105 at p. 200 and decisions cited there.

4.

4 Story, supra, para. 495, at pp. 440-41; Palmer, supra, at pp. 975-976.

5.

5 Coggs v. Bernard (1703) 2 Ld. Raym. 909 at p. 918, 92 E.R. 107 at p.112; Morse v. Slue (1671) 1 Ventris 198, at p. 238, 86 E.R. 129, at p.159; Rutter v. Palmer [1927] 2 K.B. 87 at p. 90 (C.A.); Canadian PacificForest Products Ltd., Tahsis Pacific Region v. Belships (Far East) Shipping (Pte.) Ltd.1996 AMC 2168 at p.2180 (Fed. C. Can.), upheld (1999) AMC 2606,[2000] ETL 93 (Fed. C.A.). See also Palmer, supra, at p. 976; W.

Tetley, ibid., at p. 899; Wilson, Carriage by Sea, 2 Ed., 1993 at pp. 249-252; Scrutton, 20 Ed., 1996, art. 105 at p. 200.

6.

6 Nugentv. Smith (1876) 1 C.P.D. 19 at pp. 26, 29-30, and 33 (perBrett J.).

7.

7 Palmer, 2 Ed., 1991 at pp. 976-979; Scrutton, 20 Ed., 1996, art.105 at p. 200. See also Nugentv. Smith, ibid., at p. 33, where Brett J.said: "We are, of opinion that the true rule, is that every ship-owner ormaster who carries goods on board his vessel for hire, is, in theabsence of express stipulation to the contrary, subject, by implication,by the common law of England:... by reason of his acceptance of thegoods to be carried, to the liability of an insurer, except as against theact of God, or the Queen's enemies."


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8.

8 In Germany, for example, it has been held that the carrier is notliable for loss or damage to the goods before loading or after

discharge, unless the claimant can produce a "combined transport"contract of carriage and prove the damage suffered by the goodsduring their actual carriage by sea, during the time when they wereunder the carrier's control. See Landgericht Hamburg, September 14,2000, [2000] ETL 759.

9.

9 Mayhew Foods v. OCL [1984] 1 Lloyd's Rep. 317 at p. 320.

10.

10 See Chap. 8: "Who May Claim or Sue?", supra.

11.

11 St. Paul's Fire & Marine Ins. Co. v. Marine Transportation Services Sea-BargeGroup, Inc. 727 F. Supp. 1438 at p. 1442; Sail America Foundation v. M/VT.S. Prosperity 778 F. Supp. 1282 at p. 1285, 1992 AMC 1617 at p. 1621(S.D. N.Y. 1991); Polo Ralph Lauren, L.P. v. Tropical Shipping & ConstructionCo., Ltd. 215 F.3d 1217 at p. 1220, 2000 AMC 2129 at p. 2131 (11 Cir.

2000).

12.

12 Bailment claims have been permitted in some cases, however, ongrounds of equity, where the defendant was not a "carrier" within themeaning of COGSA. See Tuscaloosa Steel Corp. v. M/V Naimo 1993 AMC 622at p. 626-627 (S.D. N.Y. 1992), where a claim in bailment was allowedagainst a shipowner and head charterer who were not bound by thebills of lading issued by the agent of the time sub-charterer outside the

scope of its authority, the bills not being in conformity with the mate'sreceipts). See also DB-Trade International, Inc. v. Astramar 1988 AMC 766 atp. 767 (N.D. Ill. 1987).

13.

13 Texport Oil Co. v. M/V Amolyntos 11 F.3d 361 at p. 367, 1994 AMC 815at p. 823 (2 Cir. 1993), rev'd on other groundsby Wilton v. Seven Falls


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Co. 515 U.S. 277 (1995); Associated Metals & Minerals Corp. v. M.VAlexander's Unity 41 F.3d 1007 at p. 1017, 1995 AMC 1006 at p. 1022 (5Cir. 1995); Polo Ralph Lauren L.P. v. Tropical Shipping & Construction Co., Ltd.,supra, 215 F.3d at p. 1221, 2000 AMC at p. 2132.

14.

14 Chap. 14: "The Cause of the Loss or Damage", supra.

15.

15 Chap. 15: "Due Diligence to Make the Vessel Seaworthy", supra.

16.

16 Chap. 6: "The Burden and Order of Proof".

17.

17 1962 AMC 2651 at p. 2653 (Cal. Mun. Ct. 1962).

18.

18 68 F. Supp. 759,1946 AMC 1252 (E.D. Pa. 1946).

19.

19 47 F. Supp. 877,1942 AMC 1407 (E.D. N.Y. 1942).

20.

20 See footnote 6 of the Introduction to Chap. 14: "The Cause of theLoss or Damage", where the Vermontis analysed. See also the decisionscontrary to the Vermontin footnotes 3, 4, 5, 7, 11, 12, 13, 15, 16, 17 &18 of the same Introduction. See in particular Socony Mobil v. Tex. Coast &Int'l559 F.2d 1008 at p. 1013, 1977 AMC 2598 at p. 2605 (5 Cir.

1977); Mimi Lim. Procs. 604 F.2d 254 at p. 262, 1979 AMC 1680 at p.1690 (4 Cir. 1979); C. Itoh & Co. (America), Inc. v. M/V Hans Leonhardt719F. Supp. 479 at pp. 505-506, 1990 AMC 733 at pp. 745-746 (E.D. La.1989), (a Harter Actdecision). For Canada, see Cargill Grain Co. Ltd. v. N.M.Paterson & Sons [1966] Ex. C.R. 22 at p. 33; Kruger Inc. v. Baltic Shipping Co.(1989) 57 D.L.R. (4th) 498 at p. 502 (Fed. C.A); Wirth Ltd. v. Belcan N.V.(1996) 112 F.T.R. 81 at p. 97 (Fed. C. Can.). For the U.K., see Gosse


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Millerd, Ltd. v. Canadian Govt Merchant Marine Ltd, [1927] 2 K.B. 432 at p.437, (1927) 28 Ll. L. Rep. 88 at p. 104; Levison v. Patent Steam CarpetCleaning Co. Ltd. [1978] Q.B. 69 at p. 82, [1977] 3 All E.R. 498 at p. 505(C.A. per Lord Denning M.R.).

21.

21 See, for example, General Foods Corp. v. S.S. Troubador 98 F. Supp.207 at p. 210, 1951 AMC 662 at p. 664 (S.D. N.Y. 1951), relying onAmerican Tobacco Co. v. S.S. Katingo Hadjipatera 81 F. Supp. 438 at p. 445,1949 AMC 49 at p. 57 (S.D. N.Y. 1948), which in turn cites TheShickshinny 45 F. Supp. 813, 1942 AMC 910 (S.D. Ga. 1942). The latterdecision (F. Supp. at p. 817, AMC at p. 915) does not refer to duediligence in the care of cargo, but rather merely requires the carrier toprove one of the exculpatory exceptions of art. 4(2)(a) to (q), and, in

the case of the (q) exception, to prove some other cause as well aslack of fault on its own part and on the part of its servants or agents.

22.

22 Quaker Oats Co. v. M/V Torvanger 734 F.2d 238 at p. 240, 1984 AMC2943 at p. 2945 (5 Cir. 1984), cert. denied 469 U.S. 1189, 1985 AMC2398 (1985); Tenneco Resins, Inc. v. Davy International, AG 881 F.2d 211 atp. 213, 1990 AMC 402 at p. 405 (5 Cir. 1989), Sun Co. Inc. v. S.S. OverseasArctic 27 F.3d 1104 at p. 1109, 1995 AMC 57 at p. 62 (5 Cir. 1994):"Once the charterer presents its prima facie case, the burden shifts tothe carrier to prove either that it exercised due diligence in preventingthe loss of the cargo or to prove that the loss was caused by one ofthe exceptions set out in 1304(2) of COGSA."; Tubacex Inc. v. M/V Risan45 F.3d 951 at p. 954, 1995 AMC 1305 at p. 1308 (5 Cir. 1995). Seealso Banana Services, Inc. v. M/V Fleetwave 911 F.2d 519 at p. 521, 1991AMC 439 at p. 442 (11 Cir. 1990); Royal Ins. Co. of America v. S/S Robert E.Lee 756 F. Supp. 757 at p., 762, 1991 AMC 1750 at p. 1756 (S.D. N.Y.1991). For a similar view in the United Kingdom, see The Sea Maas[1999] 2 Lloyd's Rep. 281 at p. 284.

23.

23 Garner Industries v. Wallenius Lines and Gulf Motorships 1989 AMC 2688 atp. 2694 (Tex. Ct. of Apps.1988).

24.


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24 [1955] 2 Lloyd's Rep. 218 at p. 236.

25.

25 [1961] A.C. 807 at p. 856, [1961] 1 Lloyd's Rep. 57 at p. 76

(H.L.).

26.

26 [1966] 1 Lloyd's Rep. 450 at p. 457. See also Scrutton, 20 Ed.,1996 at p. 431.

27.

27 "FIO" ("free in and out") or "FILO" ("free in liner out") or "FIOS"("free in and out, stowed") or "FIOST" ("free in and out stowed andtrimmed"). These terms, which really derive from chartering, but aresometimes included in bills of lading, transfer to the shipper orconsignee the carrier's ordinary responsibility for paying for andcontrolling either loading and discharge ("FIO"), loading only ("FILO"),loading, stowage and discharge ("FIOS") or loading, stowage,trimming and discharge ("FIOST").

28.

28 Pyrene Co. Ltd. v. Scindia Navigation Co. Ltd. [1954] 2 Q.B. 402 at pp.

417-418, [1954] 1 Lloyd's Rep. 321 at pp. 328-329; G.H. Renton & Co.Ltd. v. Palmyra Trading Corp. of Panama [1957] A.C. 149 at pp. 169-170 and174, [1961] 2 Lloyd's Rep. 379 at pp. 390-391 and 393 (H.L.); Ismailv. Polish Ocean Lines [1976] 1 Q.B. 893 at p. 900, [1976] 1 Lloyd's Rep.489 at p. 493 (C.A.); Scrutton, 20 Ed., 1996 at p. 431. The partiesmay also validly agree that the goods shall be discharged at the portof loading. See G.H. Renton & Co. Ltd., supra.

29.

29 See in particular Nichimen Co. v. M/V Farland and A/S Virgo 462 F.2d 319at p. 330, 1972 AMC 1573, at p. 1587 (2 Cir. 1972); Demsey & Assocs.,Inc. v. S.S. Sea Star 461 F.2d 1009 at pp. 1014-1015 and 1018-1019,1972 AMC 1440 at pp. 1446-1447 and 1453 (2 Cir. 1972); AssociatedMetals & Minerals v. M/V Arktis Sky 978 F.2d 47 at p. 50, 1993 AMC 509 atp. 513 (2 Cir. 1992); Tubacex, Inc. v. M/V Risan 45 F.3d 951 at p. 956,1995 AMC 1305 at p. 1310 (5 Cir. 1995); Sogem-Afrimet, Inc. v. M/V Ikan


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Selayang 951 F. Supp. 429 at p. 442, 1998 AMC 1366 at p. 1384 (S.D.N.Y. 1996). See also Chap. 24: "Properly and Carefully Load", supra.

30.

30 46 U.S.C. Appx. 1303(2).

31.

31 Great American Ins. Cos. v. M/V Romeral1999 AMC 2542 at p. 2547(E.D. La. 1998), citing Westinghouse Electric Corp. v. M/V Leslie Lykes 734F.2d 199 at p. 209, 1985 AMC 247 at p. 261 (5 Cir. 1984); AgricoChemical Co. v. SS Atlantic Forest459 F. Supp. 638 at p. 647, 1979 AMC801 at p. 812 (E.d. La. 1978), aff'd 620 F.2d 487, 1982 AMC 3000 (5Cir. 1980).

32.

32 [1966] 2 Lloyd's Rep. 53 at p. 64 (H.L.). See also Silversandal(Bachev. Silver Line Inc.)110F.2d 60, 1940 AMC 731 (2 Cir. 1940).

33.

33 Ibid., at p. 58. See also Chris Foodstuffs Ltd. v. Nigerian National ShippingLine [1967] 1 Lloyd's Rep. 293 at p. 297 (C.A.). See also Scrutton, 20Ed., 1996 at p. 430.

34.

34 See, for example, Shipping Corporation of India Ltd. v. Gamlen Chemical Co.Australasia Pty. Ltd.[1980] 147 C.L.R. 142 at p. 163 (High C. of Aust.);Great China Metal Industries v. Malaysian International Shipping Corporation Berhad(The Bunga Seroja) (1998) 158 A.L.R. 1 at p. 43, 1999 AMC 427 at p.484, [1999] 1 Lloyd's Rep. 512 at p. 537 (High C. of Aust.).

35.

35 U.N./FAW World Food Programme v. M/V Tay 138 F.3d 197 at p.200,1998 AMC 2729 at p. 2732 (5 Cir. 1998): "One of the broadobligations imposed upon the carrier by COGSA is to 'properly andcarefully load, handle, stow, carry, keep, care for, and discharge thegoods carried.' 46 U.S.C. app. 1303(2). But as 1304 makes clear,this duty is not absolute; 1304 provides a number of exceptions to


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the above rule."

36.

36 See generally, Chap. 24: "Properly and Carefully Load", supra.

37.

37 Tenneco Resins, Inc. v. Davy International, AG 881 F.2d 211 at pp. 213-214, 1990 AMC 402 at p. 406 (5 Cir. 1989); Sun Co. Inc. v. S.S. OverseasArctic 27 F.3d 1104 at p. 1110 note 11, 1995 AMC 57 at p. 64 note 11(5 Cir. 1994).

38.

38 G.H. Renton & Co. Ltd. v. Palmyra Trading Corp. of Panama [1957] A.C. 149at p. 166, [1956] 2 Lloyd's 379 at p. 388(H.L.): "The appellantsargued that under article III, rule 2,the respondents were obliged,inter alia,properly to carry, and discharge the goods carried. Theappellants submitted that this involved discharging at a 'proper' portand that Hamburg was not such a port. The natural and ordinarymeaning of 'properly' in antithesis to 'carefully' in the phrase 'properlyand carefully load, handle, stow, carry, keep, care for and discharge' isin accordance with a sound system. It has not a geographicalsignificance."

39.

39 46 U.S.C. Appx. 1303(2).

40.

40 See Scrutton, 20 Ed., 1996 at p. 534, note 9. See also decisionssuch as Tubacex, Inc. v. M/V Risan 45 F.3d 951 at p. 956, 1995 AMC1305 at p. 1310 (5 Cir. 1995), holding that, even in respect of "non-delegable" duties set out in sect. 3(2) of COGSA (46 U.S.C. Appx.

1303(2)), defences such as an "act or omission of the shipper orowner of the goods, his agent or representative" in sect. 4(2)(i) (46U.S.C. Appx. 1304(2)(i)) and "any other cause without the fault orprivity of the carrier or the fault or negligence of the carrier's servantsor agents" under sect. 4(2)(q) (46 U.S.C. Appx. 1304(2)(q)) continueto be available to carriers. See also Itochu International, Inc. v. M/V WesternAvenir 1998 AMC 555 at p.564 (E.D. La. 1997).


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41.

41 The remarks found under the heading "Order and Burden of Proof"in Chap. 25: "Stow Properly and Carefully", supra, apply equally to theobligation to properly carry, keep and care for cargo, as do the

comments found in Chap. 6: "The Burden and Order of Proof", supra, atsects. II(1) and IV and the many decisions cited there, including, interalia, Gosse Millerd, Ltd. v. Can. Government Merchant Marine Ltd[1929] A.C.223 at p. 234, (1928) 32 Ll. L. Rep. 91 at p. 95 (H.L.); Quaker Oats Co.v. M/V Torvanger 743 F.2d 238 at p. 243, 1984 AMC 2942 at p. 2949 (5Cir. 1984), cert. denied 469 U.S. 1189, 1985 AMC 2398 (1985);Associated Metals & Minerals Corp. v. M/V Arktis Sky 978 F.2d 47 at p. 51,1993 AMC 509 at p. 515 (2 Cir. 1992); Transatlantic Marine Claims Agency,Ltd. v. M/V OOCL Inspiration 137 F.3d 94 at p. 98, 1998 AMC 1327 at p.1330 (2 Cir. 1998); Rothfos Corp. v. M/V Nuevo Leon 2000 AMC 2054 at pp.

2058-2059 (S.D. Tex. 2000).; Wirth Ltd. v. Belcan N.V. (1996) 112 F.T.R.81 at p. 97 (Fed. C. Can.); Voest-Alpine Stahl Linz GmbHv. Federal Pacific Ltd.(1999) 174 F.T.R. 69 (Fed. C. Can.) at pp. 74 and 79.

42.

42 1985 AMC 1152 at p. 1162 (S.D. Ala. 1985), citing The Ensley City 71F. Supp. 444 at p. 449, 1947 AMC 568 at p. 576(D. Md. 1947), aff'd170 F.2d 25, 1948 AMC 1589 (4 Cir. 1948) and Sucrest Corp. v. M/VJennifer 455 F. Supp. 371 at p. 382, 1978 AMC 2520 at pp. 2525-2526(D. Me. 1978).

43.

43 1987 AMC 1189 at p. 1193 (E.D. La. 1986), citing Cook Industries, Inc.v. Barge UM-308 622 F.2d 851 (5 Cir. 1980); and Toyo Kisen KabushikiKaisha v. Wellman 89 F.2d 539, 1937 AMC 642 (4 Cir. 1937); and UnitedStates v. Lykes Bros. Steamship Co., Inc. 511 F.2d 218, 1975 AMC 2244 (5Cir. 1975).

44.

44 [1967] 1 Lloyd's Rep. 1 at p. 46.

45.

45 May 27, 1975, DMF 1975, 599.


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46.

46 October 19, 1973, DMF 1974, 94.

47.

47 February 11, 1972, DMF 1972, 353.

48.

48 71 F. Supp. 444 at p. 447, 1947 AMC 568 at 572 (D.Md. 1947),aff'd 170 F.2d 25, 1948 AMC 1589 (4 Cir. 1948).

49.

49 1984 AMC 464 at p. 471 (E.D. La. 1983), citing, inter alia, The EnsleyCity, supra. See also Armour & Co. v. Compania Argentina de Navegacion 1958AMC 332 at p. 338, [1958] 2 Lloyd's Rep. 49 at p. 52 (S.D. N.Y.1957), aff'd 263 F.2d 323, 1959 AMC 938 (2 Cir. 1959); Cigna Ins. Co. ofPuerto Rico v. M/V Skanderborg 897 F. Supp. 659 at p. 662, 1996 AMC 600at p. 603 (D. P.R. 1995). See also Atlantic Consolidated Foods Ltd. v. TheDoroty [1979] 1 F.C. 283 at p. 295, [1978] ETL 550 at p. 562. "Ifthecarrier cannot provide that special type of service [carefullyrefrigerated holds for carrying tuna fish], he must refuse to carry thatparticular type of shipment."

50.

50 The Grumant[1973] 2 Lloyd's Rep. 531 at p. 534 (Fed. Ct. ofCanada); The Split[1973] 2 Lloyd's Rep. 535 at p. 539 (Fed. Ct. ofCanada), where the Court referred to the first edition ofMarine CargoClaims on this point.

51.

51 651 F. Supp. 452 at p. 456, 1988 AMC 2681 at pp. 2688-2689 (S

D. Ala. 1987).

52.

52 See also Levatino Co. v. American President Lines, Ltd. 233 F. Supp. 697at p. 701, 1964 AMC 1247 at p. 1254 (S.D. N.Y. 1964), aff'd 337 F.2d729, 1964 AMC 2087 (2 Cir. 1964): "Respondent was not obliged toaccept carriage of the chestnuts but once it did respondent was


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charged with knowledge of the characteristics of the cargo it acceptedand it had the duty to give the chestnuts the care which theircharacter required."

53.

53 1988 AMC 2486 (S.D. Fla. 1987).

54.

54 Ibid. at p. 2496.

55.

55 See, for example, Jensen v. Matson Navigation Co. 71 F. Supp. 939,

1947 AMC 1082 (D. Hai. 1947), where an ocean carrier was notresponsible for damage to plaster objects destined for a wax museum,where the shipper failed to disclose their nature, thus preventing thecarrier from caring for them properly.

56.

56 February 4, 1953, DMF 1953, 385. See also Chap. 19: "Acts andFault of the Shipper" in respect to "Dangerous Cargo".

57.

57 811 F.2d 211, 1990 AMC 402 (5 Cir. 1989).

58.

58 Ibid., F. 2d at p. 214, AMC at p. 406.

59.

59 Ibid., citing O'Connell Machinery Co. v. M/V Americana 797 F.2d 1130 at

p. 1134, 1986 AMC 2822 at p. 2827 (2 Cir. 1986).

60.

60 27 F3d 1104, 1995 AMC 57 (5 Cir. 1994).

61.


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61 The industry standard in question required high-temperature fueloil to be loaded at a temperature of twenty to thirty degrees F. aboveits "pour point".

62.

62 27 F.3d 1104 at p. 1112, 1995 AMC 57 at p. 67 (5 Cir. 1994).

63.

63 897 F. Supp. 659, 1996 AMC 600 (D. P.R. 1995).

64.

64 Ibid., F. Supp. at p. 662, AMC at p. 603. This point was really an

obiter dictum, however, as the Court found that the pliantiff had notmade out a prima facie case. In addition, the decision seemsquestionable, in the light of other decisions extending the carrier's duediligence duty in respect of seaworthiness to containers which itprovides for use aboard the vessel. See Houlden & Co. v. S.S. Red Jacket1977 AMC 1382 at pp. 1401-1402 (S.D. N.Y. 1977), aff'd withoutopinion, 582 F.2d 1271 (2 Cir. 1978); Eastman Kodak Co v. S.S. SealandVoyager 1991 AMC 2356 at p. 2361 (S.D. N.J. 1991), aff'd 958 F.2d362, 1992 AMC 1520 and 1816 (3 Cir. 1992). See also Zim IsraelNavigation Ltd. v. The Israeli Phoenix Assurance Company Ltd. (The Zim-Marseilles)[1999] ETL 535 at pp. 547-548 (Supr. C. of Israel).

65.

65 M. Golodetz Export Co. v. Lake Anja 751 F.2d 1103, 1985 AMC 891 (2Cir. 1985), cert. denied, 471 U.S. 1117, 1985 AMC 2398 (1985).Similarly, in Italusa Corp. v. M/V Thalassini Kyra 733 F. Supp. 209 at pp.216-217, 1990 AMC 1356 at p. 1366 (S.D. N.Y. 1990), involvingalleged improper storage of cheese in an unrefrigerated warehouseafter discharge, contrary to the Harter Act, the Court noted:"Furthermore, the melting properties of a particular cheese is not a

matter of common knowledge, such as the freezing properties ofliquids, that may reasonably be charged to the carrier."

66.

66 See White & Son Ltd. v. White Star Line Ltd. (The Hobsons Bay) (1933) 46Ll. L. Rep. 189, where the carrier did not follow the shipper'sinstructions as to the care of apples. The carrier was held responsible.


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See also Jones v. The Flying Clipper 116 F. Supp. 386, 1954 AMC 259(S.D. N.Y. 1953).

67.

67 898 F.2d 137, 1990 AMC 2193 at pp. 2195-2196 (2 Cir. 1990).

68.

68 Cour d'Appel de Rouen, August 25, 1993 (The Sederberg), DMF 1994,375.

69.

69 Tribunal de Commerce de Marseille, April 10, 1987, Revue Scapel 1988,

45, commentary by P. Bonassies, DMF 1988, no. 82 at pp. 160-161.

70.

70 Cour d'Appel de Dijon, December 1, 1987 (The Cap-Benat), Bulletin desTransports 1988, 605, commentary by P. Bonassies, DMF 1989, no. 81at p. 160.

71.

71 756 F. Supp. 757, 1991 AMC 1750 (S.D. N.Y. 1991).

72.

72 See also Westcoast Food Brokers Ltd. v. The Hoyanger [1979] 2 Lloyd'sRep. 79 (Fed. C. Can.), upheld (1979) 32 N.R. 82 (Fed. C.A.) (damageto apples was caused by their inherent defect of being too ripe forshipment to Canada when loaded in Argentina, rather than byimproper stowage or by any inadequacy or improper operation of theship's refrigeration equipment during the voyage).

73.

73 [2000] 2 Lloyd's Rep. 15 at pp. 34-36. See also Hof van Cassatie vanBelgi, September 25, 1992, [1993] ETL 213, where the carrier's lackof care in loading ballast water was found to be a fault in themanagement of the cargo, rather than in the management of the ship,so that the defence of art. 91, A, IV(2)(a) of the Belgian Maritime Law(similar to art. 4(2)(a) of the Hague/Visby Rules) did not apply.


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74.

74 1988 AMC 2486 (S.D. Fla. 1987).

75.

75 Ibid. at p. 2494.

76.

76 347 F.Supp. 447, 1972 AMC 880 (S.D. N.Y. 1972), aff'd 489 F.2d752, 1974 AMC 1894 (2 Cir. 1974).

77.

77 1997 AMC 1140 (S.D. N.Y. 1997).

78.

78 Ibid. at p. 1155.

79.

79 651 F.Supp. 452, 1988 AMC 2681 (S.D. Ala. 1987).

80.

80 Ibid., F. Supp. at p. 457, AMC at p. 2689.

81.

81 68 F.3d 418, 1996 AMC 260 (11 Cir. 1995).

82.

82 46 U.S.C. Appx. 1304(2)(b).

83.

83 46 U.S.C. Appx. 182.

84.


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84 729 F. Supp. 826 at p. 836, 1990 AMC 2506 at p. 2513 (M.D. Fla.1990).

85.

85 Hof van Cassatie van Belgi, September 25, 1992, [1993] ETL 213.

86.

86 Belgium incorporated the Hague Rules 1924 into the BelgianCommercial Code by its law of November 28, 1928, in force January22, 1929, which became art. 91 of Book II, Chapter III of the "Loiscoordonnes". Belgium ratified the Hague Rules 1924 on June 2, 1930and also became party to the Visby Protocol 1968 by its law of August28, 1978 and the Visby S.D.R. Protocol 1979 by its law of August 17,

1983. But its internal law (art. 91 of the Commercial Code) wasamended to give effect to the Hague/Visby Rules 1968/1979 only bythe law of April 11, 1989.

87.

87 Schnell & Co. v. S.S. Vallescura 293 U.S. 296 at p. 306, 1934 AMC 1573at p.1578 (1934). See Chap. 12: "Loss or Damage to Cargo", supra. Formore recent applications of the "Vallescura Rule", see Vana Trading Co. v.S.S. Mette Skou 556 F.2d 100 at p. 105, 1977 AMC 702 at p. 709 (2 Cir.1977), cert. denied cert. denied, 434 U.S. 892, 1978 AMC 1898

(1977); M. Golodetz Export Corp. v. S/S Lake Anja 751 F.2 1103 at p. 1111,1985 AMC 891 at p. 902 (2 Cir. 1985); Thyssen, Inc. v. S.S. Eurounity, 1994AMC 393 at p. 399 (S.D. N.Y. 1993), aff'd 21 F.3d 533, 1994 AMC1638 (2 Cir. 1994); Sun Co., Inc. v. S.S. Overseas Arctic 27 F.3d 1104 at p.1109, 1995 AMC 57 at p. 62 (5 Cir. 1994).

88.

88 C. Itoh & Co. (America) Inc. v. MV Hans Leonhardt719 F. Supp. 479 at p.502, 1990 AMC 733 at p. 740 (E.D. La. 1989) (a Harter Actcase).

89.

89 306 F.2d 426 at p. 432, 1962 AMC 2366 at p. 2375 (2 Cir. 1962).

90.

90 Sedco Inc. v. Strathewe 800 F.2d 27, 1986 AMC 2801 (2 Cir. 1986).


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91.

91 [1974] S.C.R. 1225.

92.

92 1987 AMC 1189 at p. 1194 (E. D. La. 1986).

93.

93 688 F. Supp. 1095, 1989 AMC 2218 (E.D. La. 1988).

94.

94 Ibid., F. Supp. at pp. 1106-1107, AMC at p. 2222.

95.

95 306 F.2d 426 at p. 431, 1962 AMC 2366 at p. 2373 (2 Cir. 1962);U.S. v. Lykes Bros. S.S. Co., Inc. 511 F.2d 218 at p. 225 note 15, 1975 AMC2244 at p. 2253 note 15 (5 Cir. 1975). See also Office of Supply v.Naftoporos 1987 AMC 697 (S.D. N.Y. 1985) where, before selling, thecarrier had first to attempt to salvage the cargo and, when that failed,was obliged to obtain cargo owner's consent to sell the cargo. See alsoCargill, Inc. v. S.S. Nasagbu 404 F. Supp. 342 at p. 347, 1976 AMC 515 at

p. 520 (M.D. La. 1975), where the solicitation of sealed bids in orderto dispose of a creosote-contaminated molasses cargo was found to be"reasonable and proper".

96.

96 Such contractual extension of the carrier's period of responsibilityto the post-discharge period is expressly permitted by art. 7 of theHague and Hague/Visby Rules, as well as by corresponding nationalstatutes such as U.S. COGSA (46 U.S.C. Appx. 1307). See, for

example, Seguros Illimani S.A. v. M/V Popi P 929 F.2d 89 at p. 94, 1991AMC 1521 at p. 1527 (2 Cir. 1991); Ins. Co. of N. America v. M/V Savannah1998 AMC 1029 at p. 1033 (S.D. N.Y. 1997). See generally, Chap. 44:"Through and Combined Carriage and Transshipment infra.

97.

97 See Asahi America, Inc. v. M/V Arild Maersk602 F. Supp. 25 at p. 27,


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1986 AMC 53 at p. 55 (S.D. N.Y. 1985); Hartford Fire Ins. Co. v. M/V OOCLBravery 79 F. Supp. 2d 316 at p.325, 2000 AMC 1305 at p. 1316,[2000] 1 Lloyd's Rep. 394 at p. 400, [2000] ETL 398 at pp. 411-412(S.D. N.Y. 1999), vacated and remanded on other grounds, 230 F.3d349, 2001 AMC 25 (2 Cir. 2000).

98.

98 Hartford Fire Ins. Co. v. M/V OOCL Bravery, ibid.

99.

99 Ibid., F. Supp. 2d at p.324, AMC at p.1314, Lloyd's Rep. at p. 399,ETL at p. 410.

100.

100 Ibid., F. Supp. 2d at pp. 325-326, AMC at pp. 1316-1317, Lloyd'sRep. at p. 400, ETL at p. 412 (ocean carrier liable where its inlandtrucking sub-contractor loaded a container of bicycles onto a trucklacking any anti-pilferage devices, thus facilitating theft of thecontainer when the truck driver negligently left the truck parked andunattended at night on a public road near his house). See also Cameco,Inc. v. S.S. American Legion 514 F.2d 1291 at p. 1296 (2 Cir. 1974).

101.

101 515 U.S. 528 at p. 535, 1995 AMC 1817 at p. 1822 (1995), citedin Fireman's Fund Ins. Co. v. M.V. DSR Atlantic 131 F.3d 1336 at p. 1339,1998 AMC 583 at p. 587 (9 Cir. 1997); Kelso Enterprises, Ltd. v. M/V WisidaFrost8 F. Supp. 2d 1197 at p. 1204, 1998 AMC 1351 at p. 1361 (C.D.Cal. 1998).

102.

102 1998 AMC 1035 at p. 1044 (E.D. La. 1997).

103.

103 1999 AMC 837 at p. 840 (D. N.J. 1998).

104.

104 1999 AMC 1700 at p. 1702 (C. D. Cal. 1999).


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105.

105 284 F. Supp. 34, 1968 AMC 974 (D. Col. 1968); upheld in appeal410 F.2d 1006, 1969 AMC 1658 (D. Col. Cir. 1969).

106.

106 1989 AMC 466 (D. P.R. 1988).

107.

107 46 U.S.C. Appx. 1304(2)(i).

108.

108 Ibid. at p. 469.

109.

109 1994 AMC 2970 (S.D. N.Y. 1994).

110.

110 Ibid. at pp. 2978-2980.

111.

111 1973 AMC 2241 (W.D. Wash. 1973).

112.

112 Generally, see Chap. 17: "Fire", supra.

113.

113 651 F. Supp. 418, 1988 AMC 2681 (S.D. Ala. 1987).

114.

114 March 24, 1970, [1970] ETL 561.

115.


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115 929 F. Supp. 694, 1997 AMC 803 (S.D. N.Y. 1996).

116.

116 Ibid., F. Supp. at p. 709, AMC at pp. 824-825.

117.

117 46 U.S.C. Appx. 1304(2)(n).

118.

118 46 U.S.C. Appx. 1303(2).

119.

119 929 F. Supp. at p. 708, 1997 AMC at p. 824.

120.

120 1988 AMC 2208 at p. 2211 (S.D. N.Y. 1987). See also TransatlanticMarine Claims Agency, Inc. v. S.S. Zyrardow 898 F.2d 137, 1990 AMC 2193 atp. 2196 (2 Cir. 1990), where the carrier's failure to ventilatecompartments filled with bananas accelerated their ripening, resultingin the carrier's liability for their deterioration.

121.

121 [2000] 1 Lloyd's Rep. 85 at p. 104.

122.

122 729 F. Supp. 826, 1990 AMC 2506 (M.D. Fla. 1990).

123.

123 76 F. Supp. 2d 316, 2000 AMC 1305, [2000] 1 Lloyd's Rep. 394,[2000] ETL 398 (S.D. N.Y. 1999), vacated and remanded on theground that the bill of lading was not governed by U.S. COGSA and thedispute was not within U.S. admiralty jurisdiction, 230 F.3d 549, 2001AMC 25 (2 Cir. 2000).

124.


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124 See, for example, Cour de Cassation, November 23, 1999 (The MetzLarnaca), DMF 2000, 827 (summ.), where the carrier was held liable fordamage which occurred during the voyage, as a result of improperweighing committed by a stevedore before loading. The carrier washeld jointly and severally liable with the stevedore for the damage,

because the fault was apparently committed after the carrier's "prise encharge"of the goods, and therefore during its period of responsibility.On the contrary, see also Cour d'Appel d'Aix, December 9, 1999, (The JollyRubino), DMF 2000, 828 (summ.), where responsibility for pre-loadingdamage could not be imputed to the carrier, absent any proof that the"prise en charge" had occurred at the time when the damage was done.

125.

125 French "doctrine" regarding care of cargo appears to treat the

general duty of caring for the goods under art. 38 of the Decree ofDecember 31, 1966 as an obligation de rsultat" ("obligation of result"),rendering the carrier liable for cargo damage unless a specificexception to liability applies. See Rmond-Gouilloud, 2 Ed., 1993,para. 561, referring to the "necessary care" of cargo as comprisingmeasures for attaining the "promised result" of ensuring that thegoods arrive at destination in the same condition as when they weretaken in charge by the carrier. See also Vialard, 1997, para. 458,referring to art. 38 as imposing an "obligation de rsultat".

126.

126 Rmond-Gouilloud, 2 Ed., 1993, para. 561. See also Rodire & duPontavice, 12 Ed., 1997, para. 355.

127.

127 Decree no. 66-1078 of December 31, 1966, at art. 40, provides:(translation) "In case of interruption of the voyage, the carrier or hisrepresentative, on pain of damages, shall act diligently to ensure thetransshipment of the goods and their on-carriage to the agreed port of

destination. This obligation burdens the carrier regardless of the causeof the interruption." The duty of transshipment under art. 40, unlikethe obligation of ordinary care under art. 38, is generally considered tobe, not an "obligation de rsultat", but a mere "obligation de moyens", or"obligation of means", permitting the carrier to avert liability for cargodamage by proving that it acted with diligence. See Rmond-Gouilloud, 2 Ed., 1993 at para. 562, who indicates that circumstancessuch as storms or strikes may impose special, unforeseen duties on


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the master (e.g. transshipment), but that such exceptional situationsimpose only an "obligation de moyens". See also Rodire & du Pontavice,12 Ed., 1997, para. 355, note 2; Vialard, 1997, para. 455.

128.

128 December 7, 1973, DMF 1974, 336.

129.

129 November 26, 1998, DMF 2000, 663.

130.

130 June 3, 1999, (The Hapag Lloyd Clement), DMF 2000, 459, obs. R.

Achard.

131.

131 September 30, 1999, (The Ile de la R

7263307 properly carry keep and care for cargo

Documents