Stow Properly and Carefully. Last updated 14-May-2015

The word "carefully" in Article III (2) has, so far as I am aware, received no significant judicial elaboration - certainly, none was drawn to my attention – and probably requires none. "Properly" has however been construed, on the basis of its natural and ordinary meaning, as "in accordance with a sound system" …
Per Donaldson in Volcafe Ltd & Ors v Compania Sud Americana De Vapores SA [2015] EWHC 516 (Comm) at para 15.

HVR Article III (1)(2). The concept of a sound system.

With exception of marine deviation only the Hague and Hague/Visby Rules have modified all other absolute obligations imposed at common law on the carrier. The obligation to provide a seaworthy ship is limited by Article III (1) to one of due diligence to make the ship seaworthy before and at the beginning of the voyage. Article III (2) provides that " the carrier shall properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried."

Obligation imposed by Article III (2) is evidently less stringent than that of the common carrier and similar to one of private carrier albeit it includes both loading and discharging operations, i.e. the "tackle to tackle" period. It is, however, more stringent than one of due diligence to make ship’s compartments ready, fit and safe for reception and carriage of goods as stated in Article III (1).

Minimal level of carrier’s obligations is fixed by Article III (8), which affirms that any further lessening of carrier’s liability, for loss or damage to, or in connexion with, goods arising from negligence, fault, or failure in the duties and obligations, otherwise than as provided in this Convention, shall be null and void and of no effect.

In Volcafe Ltd & Ors v Compania Sud Americana De Vapores SA [2015] EWHC 516 (Comm) Donaldson J. decided a question whether the carrier employed a sound system of stowing of cargo of coffee beans in bags. The bags in question were sent by several consignments in a total of twenty dry and unventilated 20 ft containers from 1 January 2012 to 6 April 2012 from Columbia to North Europe. It was discovered on delivery that each of the consignments and all of the containers save two have suffered some degree of damage from condensation. Before stuffing, the bare corrugated steel of the container was lined by the stevedores with Kraft paper. The cargo underwriters claimed that by improper application of Kraft paper as a material absorbing moisture inside container, the bags of coffee beans were carried in the immediate physical environment of a steel container carelessly or inadequately prepared to protect the cargo against damage from condensate. Thus the primary question was whether or to what extent that was properly effected and adequate to meet the threat of condensation, and, if not, whether the carrier was liable for any consequent damage.

Examining carrier’s duties under Article III (2) the learned judge stated that while the word "carefully" in Article III (2) has received no significant judicial elaboration, the word "properly" has however been construed, on the basis of its natural and ordinary meaning, as "in accordance with a sound system" in G.H.Renton v Palmyra Trading Corporation, [1957] A.C. 149 at page 166 by Lord Kilmuir L.C. He furthermore said at paras 15 and 46:

15. … Though judges have tended to address "carefully" and "properly" as separate requirements, and that is generally a helpful analytic approach, they can also be viewed as complementary components or aspects of a single contractual duty of care, so that it may not always be necessary – or sometimes even possible – to assign a breach of Article III (2) to one or other of them in isolation. This can be of particular relevance where the onus of proof comes into play.

46. … While it would be inappropriate to attempt a comprehensive definition of these words, not least because they are only a judicial gloss on the text of Article III (2), the concept of a sound system (and the base word "properly") must in my view require as a minimum that there exists a rational, adequate and reliable basis for concluding that it will prevent the otherwise threatened damage.

The judge pointed out that coffee beans were entirely typical of an extensively carried commodity with well-known propensity to generate moisture and potentially condensation during carriage in containers to colder climates. The lining of containers by the carrier with Kraft paper was done in recognition of the risk of damage from condensation. Therefore it was for the carrier to demonstrate a rational, adequate and reliable basis for concluding that its lining arrangements could be expected to prevent such damage from occurring during the contracted carriage. Since carrier failed to demonstrate such basis he was held to have failed to establish that it adopted a sound system.

Share this article on:


Readers’ comments:

Posted by:   

Be first to comment …
Leave your questions and comments here
:
:

Although author encourages visitors to leave their comments using this form, but if you unable or unwilling to use it for any reason you can forward your mail to info@lawandsea.net to contact with him.