444. Trafigura Beheer BV v Mediterranean Shipping Co SA (the “MSC Amsterdam”) [2007] 2 CLC 379

Hague Rules/ Hague Visby Rules – proper law determines whether rules apply compulsorily –  HR/HVR applicable only to period of carriage – wide exemption clause not excluding liability for delivery without presentation of authentic bills of lading

 The facts

Copper in 18 containers was shipped from Durban to Shanghai under bills of lading containing the following clauses:

 “1(a) For all trades, except for goods shipped to and from the United States of America, this B/L shall be subject to the 1924 Hague Rules with the express exclusion of Article IX, or, if compulsorily applicable, subject to the 1968 Protocol (Hague-Visby) or any compulsory legislation based on the Hague Rules and/or the said Protocols. Where Hague-Visby or similar legislation is compulsorily applicable, the Hague-Visby Protocol 1979 (‘SDR’ Protocol) shall also apply whether or not mandatory.’

 ‘4(ii) The responsibility of the Carrier is limited to that part of the Carriage from and during loading onto the vessel up to and including discharge from the vessel and the Carrier shall not be liable for loss of or damage to the goods during the period before loading onto and the period after discharging from the vessel, howsoever such loss or damage may arise. Loading and discharge take place when the goods pass the vessel’s rail or ramp.

(iii) When the goods are in the custody of the Carrier and/or his subcontractors before loading and after discharge, whether being forwarded to or from the vessel or whether awaiting shipment landed or stored, or put into hulk or craft belonging to the Carrier, or pending transhipment, they are in such custody for the risk and account of the Merchant without any liability of the Carrier.’

By clause 2(a) the proper law of the contract was the law of England.

 Ship owners authorised delivery from the container terminal at the port of discharge against presentation of forged bills of lading.

Authentic bills of lading were presented shortly thereafter (in time to prevent the release of the goods).

Cargo owners, unable to obtain release to themselves, sued ship owners for the delivery of the cargo, alternatively, its value.

 Findings

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