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Carriers and their agents not liable for theft of cargo from port terminal

The facts

Two containers (out of a consignment of 13) of Chivas Regal were shipped from Felixstowe to Sydney.

The bill of lading was adaptable to either “combined transport” or “port to port” shipment.

“Combined transport” was defined in the bill as arising when the place of acceptance and/or the place of delivery were indicated on the face of the bill. “Port to port” shipment arose when the carriage called for by the bill was not combined transport i.e. this was the default position.

The box on the face of the bill sv “PLACE OF ACCEPTANCE” was qualified by “Applicable only when document used as combined transport B/L place of acceptance/delivery always to be an address…”.  “Felixstowe” was inserted in this box.  The box for “PLACE OF DELIVERY” was left blank. 

The bill of lading incorporated the carriers’ applicable tariff clause which read as follows: “Container/goods will be released if the bill of lading and/or delivery/sub-delivery order is accompanied by a copy of the relevant customs entry endorsed by the Australian customs authority showing full description of the goods”.

The bill of lading contained a Himalaya clause reading as follows: “Every such person [sub-contractor] shall have the benefit of every exemption from liability, defence, limitation, condition and liberty herein contained, as if provisions were expressly for his benefit, and in entering into this contract, the carrier, to the extent of this provision, does so not only on his own behalf but also as agent and trustee for such persons”.

Clause 4, dealing with port to port shipment incorporated the Hague/Visby rules and provided:  “The carrier shall not in any circumstances whatsoever be liable for any loss of or damage to the goods howsoever caused occurring…. after they are discharged at the ocean vessel’s rail at the port of discharge”.

Clause 8(3) read: “The exemptions, limitations, terms and conditions in the bill of lading shall apply whether or not the loss or damage is caused by negligence or actions constituting fundamental breach of contract”.

Clause 17(2) read: “Where the carriage called for by this bill of lading is a port to port shipment the carrier shall be at liberty to commence discharging the goods immediately on arrival at the port of discharge without notice onto any wharf craft or place and the carrier shall be at liberty to discharge continuously irrespective of weather, by day and by night, Sundays and holidays included, any custom of the port to the contrary notwithstanding.  The merchant shall take delivery of the goods upon discharge.  All expenses incurred by reason of the merchant’s failure to take delivery of the goods as aforesaid shall be for the merchant’s account.”

The discharge of the containers commenced a day after the berthing of the vessel.  They were discharged onto the wharf and left in the control of the terminal operator.

Six days later the 2 containers in question were found to be missing from the terminal.

The consignees instituted action against the shipowners, the stevedores and the terminal operator.

The shipowners relied on the exemption clauses while the stevedores and the terminal operator relied on the Himalaya clause.


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