545. El Greco (Australia) (Pty) Ltd v Mediterranean Shipping Co SA (the “MSC Melbourne”) [2004] 2 Lloyds Rep 537

Hague Visby Rules – substantial quantity of individual prints and posters packed in a container – not “units” for purposes of limitation

The Facts

A cargo of posters and prints were loaded on board the vessel at Port Botany, Sydney in a 20 foot general purpose container. The vessel sailed for Antwerp where the container was transshipped onto the Aquitania bound for Piraeus. From Piraeus the container was transported by road to Aigion.

When packed into the container, the goods had been made up into approximately 2000 packages. The container was carried under a non-negotiable through Bill of Lading.

The description of the cargo on the face of the Bill was “said to contain: 200945 pieces, posters and prints – No. of pkgs.: 1.”

Clause 21 of the Bill of Lading read: “where the goods have been packed into containers or on behalf of the merchant, it is expressly agreed, that each container shall constitute one package for the purpose of application of limitation of the carrier’s liability.”

The Claimant alleged that the goods were damaged on arrival.

Findings

The judge at first instance found that the goods had been damaged by seawater during the voyage and that the carrier was liable.

The judge at first instance found that clause 21 was void as it offended Art.III rule 8.

She found the actual damages suffered to be AUS $ 63 570 which she awarded to the Claimant on the basis that limitation was to be calculated on the basis of 200945 units being enumerated on the face of the Bill of Lading.

Claimant appealed with regard to the extent of the damages fixed by the judge. The carrier cross appealed on 2 bases: clause 21 was not void and, in any event there was no proper enumeration of the packages/units in the container.

Allsop J, Black CJ concurring, and Beaumont J, dissenting upheld the cross appeal on the basis that there had been no proper enumeration of units on the face of the Bill of Lading.

To arrive at his conclusion, Allsop J made extensive reference to Sturley, The Legislative History of the Carriage of Goods by Sea Act and Professor Berlingieri and the Comite Maritime International (CMI), travaux préparatoires of the Hague Rules and the protocols of February 23, 1968 and December 21, 1979.

On the approach to the interpretation of the Hague Visby Rules as enacted in Australia, Allsop J referred to Lord Diplock in Fothergill v Monach Airlines Ltd as follows:

The language of that convention that has been adopted at the International Conference to express the common intention of the majority of the States represented there is meant to be understood in the same sense by the Courts of those States which ratify or accede to the Convention. Their national styles of legislative draftsmanship will vary considerably as between one another. So will the approach of their judiciaries to the interpretation of written laws and to the extent which recourse maybe had to travaux préparatoires, doctrine and jurisprudence as extraneous aids to the interpretation of the legislative text.

The language of an International Convention has not been chosen by an English parliamentary draftsman. It is neither couched in the Conventional English Legislative Idiom nor designed to be construed exclusively by English judges. It is addressed to a much wider and more varied judicial audience than is an Act of Parliament that deals with purely domestic Laws. It should be interpreted as Lord Wilberforce put it … “unconstrained by technical rules of English Law, or by English Legal Precedent, but on broad principles of general acceptation”.

The principles enshrined in the Vienna Convention were considered to be the “broad principles of general acceptation”: CMA CGM SA v Classica Shipping Co. Ltd.

Allsop J referred to an American decision, one of a number, Binladen BSB, which held that live plants packed loose in a container were not “units” for the purposes of limitation.

Although Allsop J agreed with the judge at first instance that clause 21 was void, he found that there had been no proper enumeration of units on the bill of lading and therefore that the default position, that the container was to be seen as the package, applied.

He said as follows:

Before the advent of containerization it followed from the practical everyday business of shipping goods that packages or units were as packed or as stowed. Shippers did not approach a carrier with loose bottles, loose posters or the like and ask it to carry them as they might do so with a car, a boiler or some article capable of being shipped as such, unless they were also requesting that the carrier make the goods up for transport prior to carriage. Thus, as I said earlier, before the advent of containerization, it was unlikely “except in the context of a debate about whether cargo was really bulk cargo or numerous pieces, or articles, or units of cargo” that there would arise for debate the question whether “unit” meant any article of cargo, however small and however unsuitable for transportation without being made up for transport or as to whether it meant an article of cargo suitable for carriage as such.”

He held further that:

An enumeration on the face of the bill of a number of pieces of cargo that could be packed in a variety of ways and therefore not showing the packages or units as packed, that is, how or in what number they are packed, will not be an enumeration called for by Art. IV rule 5(c).”

Accordingly the description of the cargo as 200945 “pieces, posters and prints” did not qualify as an enumeration of units for the purposes of The Hague Visby Rules.

Allsop J also dealt with, in passing, the question of a mistaken enumeration. In this regard he favoured the approach of Diamond QC in his famous article on The Hague Visby Rules that rule 5(c) only applies to the packages or units enumerated for which there is liability. – Diamond QC “The Hague Visby Rules [1978] LMCLQ 225.

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