Cтатья посвящена вопросам, связанным с палубным грузом. В частности, исследуется законодательство США и английская судебная практика. Особый интерес вызывают оговорки в договорах перевозки.
Under the terms of a fixture recap, BBC Chartering’s agents recorded that they had booked the carriage of two shipments of sand filter tanks for a water treatment plant. The first shipment of 13 tanks was completed without incident. The second shipment involved 10 sand filter tanks being loaded on a vessel called the M/VBBC Greenland in Italy. The cargo was bound for the USA.
During the voyage one of the tanks was lost overboard and another was damaged. The vessel owners/carriers and issuers of the bills of lading started legal proceedings in the USA after discharge, seeking various declarations that they were not liable to the cargo interests or, alternatively, that their liability was fixed by the United States Carriage of Goods by Sea Act 1936 (US COGS A 1936). In that case, they claimed their liability was fixed at US$1,000 (or US$500 per package).
The cargo interests estimated their loss at US$400,000. They argued that English law applied because an English arbitration and choice of law clause was incorporated into the bills of lading. They also argued that the Hague Visby Rules should automatically apply to the cargo carried because the sand filters had been loaded in Italy, which was a signatory to the Hague Visby Rules.
The owners rejected that statement and said that the Hague Visby Rules could not apply in this situation because the sand filter tanks were “deck cargo”, and deck cargo was exempted from the Hague Visby Rules. Article 1 (c) of the Hague Visby Rules states: “Goods includes goods, wares, merchandise, and articles of any kind whatsoever except live animals and cargo which by the contract of carriage is stated as being carried on deck and is so carried.”
The cargo interests said the owners were wrong and that the sand filter tanks were not deck cargo, because the master’s remarks on the front of the bill of lading did not mean that the cargo was to be carried on deck.
The cargo interests sought an anti-suit injunction in England for an order that the claim in the USA be stopped and that the claim be dealt with by the English court, pursuant to the arbitration clause that was incorporated into the bill of lading. As a result of some procedural applications in England, the English court was given the opportunity to review whether the USA courts or the English courts had jurisdiction and whether US COGS A 1936 or the Hague Visby Rules applied.
The front of the bill of lading carried the following comments:
The Master’s Remarks
- All Cargo loaded from open storage area.
- All Cargo carried on deck at Shipper’s/Charterer’s/ Receiver’s risk as to perils inherent in such seaworthiness of the vessel expressly waived by the Shipper/Charterer/Receiver. And in all other respects subject to provisions of the United States Carriage of Goods by Sea Act 1936.”
- On the back of the bill of lading the following clauses had been typed:
- “3. Liability under the contract
- (a) Unless otherwise provided herein the Hague rules … dated Brussels the 25th August 1924 as enacted in the country of shipment shall apply to this contract. When no such enactment is in force in the country of shipment, the corresponding legislation of the country of destination shall apply. In respect of shipments to which there are no such enactments compulsorily applicable, the terms of Articles I—VIII inclusive of the said Convention shall apply. In trades where the International Brussels Convention 1924 as amended by
the Protocol signed at Brussels on 23 February 1968 (The Hague Visby Rules) apply compulsorily, the provisions of the respective legislation shall be considered incorporated in this Bill of Lading… Unless otherwise provided herein, the Carrier shall in no case be responsible for loss of or damage to deck cargo…” The Law and jurisdiction clause was LM A A Terms. English Law to apply.
Special Clauses
I) In case the contract evidenced by this Bill of Lading is subject to the Carriage of Goods by Sea Act of the United States of America 1936 (US COGS A), then the provisions stated in the said Act shall govern before loading, and after discharge and throughout the entire time the cargo is in the Carriers’ custody… In the event that US COGS A applies, then the Carrier may, at the Carrier’s election, commence suit in a Court of proper jurisdiction in the United States in which case this Court will have exclusive jurisdiction.
II) If the US COGS A applies, and unless the nature and value of the cargo has been declared by the shipper before the cargo has been handed over to the Carrier and inserted in this Bill of Lading, the Carrier shall in no event be or become liable for any loss or damage to the cargo in any event exceeding US$500 per package or customary freight unit…”
On the face of it there appeared to be two different liability regimes. The carrier/owners were relying upon the USA trade clauses, while the cargo interest was relying on the Hague Visby Rules on the basis that the cargo had been loaded in Italy and the Rules were compulsorily applicable.
There was no dispute that the tanks had been carried on deck. However, they would only be considered deck cargo if the bill of lading stated that they would be carried as deck cargo. The court’s attention therefore focused on the master’s remarks on the front of the bill of lading.
The carriers argued that:
• The tanks were deck cargo because they were carried on deck and the bill of lading stated that. The tanks were therefore not “goods” within the meaning of the Hague Visby Rules. The contract was not for the carriage of goods within the meaning of the Rules.
• The carriage was subject to US COGS A 1936 because the bill of lading stated that. In the event, even if the tanks were not deck cargo, the carriage was still subject to COGS A 1936 because that was what the parties had agreed. In addition, they had also agreed USA jurisdiction.
The cargo interests argued that:
- English law applied because of the bill of lading terms. The Hague Visby Rules also applied.
- The contract was for the carriage of goods because, although they were carried on deck, they were “by the contract of carriage … stated as being carried on deck”.
The judge concluded that the tanks were “deck cargo”. He also decided that the Hague Visby Rules did not apply because the cargo was exempted by Article I of the Rules.
He also decided that the proper forum for the dispute was the United States if the parties had intended that COGSA 1936 was to apply to the carriage of these goods. In his view, the USA could only have exclusive jurisdiction in the event that COGSA 1936 definitely applied, notwithstanding that the Hague Visby Rules also applied. US COGSA 1936 and the Hague Visby Rules provided for different and inconsistent regimes. In the circumstances, he did not think that the party’s intention had been for the United States to have jurisdiction.
The case highlights the importance of the correct definition of deck cargo on the front of bills of lading.
Автор: Linda Jacques
Источник: Container Management. – 2012. – April. – P. 30 – 31.