AP Moller-Maersk A/S (t/a Maersk Line) v Kyokuyo Ltd, Court of Appeal - Civil Division, April 17, 2018, [2018] EWCA Civ 778,[2018] WLR(D) 224

Resolution Date:April 17, 2018
Issuing Organization:Civil Division
Actores:AP Moller-Maersk A/S (t/a Maersk Line) v Kyokuyo Ltd
 
FREE EXCERPT

Neutral Citation Number: [2018] EWCA Civ 778

Case No: A3/2017/1226/QBCMF

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

COMMERCIAL COURT

MR JUSTICE ANDREW BAKER

[2017] EWHC 654 (Comm)

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 17/04/2018

Before:

LADY JUSTICE GLOSTER

(VICE_PRESIDENT OF THE COURT OF APPEAL CIVIL DIVISION)

and

LORD JUSTICE FLAUX

- - - - - - - - - - - - - - - - - - - - -

Between:

- - - - - - - - - - - - - - - - - - - - -

- - - - - - - - - - - - - - - - - - - - -

Sara Masters QC and Daniel Bovensiepen (instructed by Bentleys, Stokes and Lowless) for the Appellant

Robert Thomas QC and Benjamin Coffer (instructed by Clyde & Co LLP) for the Respondent

Hearing dates: 13 and 14 March 2018

- - - - - - - - - - - - - - - - - - - - -

Judgment ApprovedLord Justice Flaux:

Introduction

  1. The appellant appeals against the Order of Andrew Baker J sitting in the Commercial Court dated 30 May 2017 whereby he determined a series of preliminary issues in favour of the respondent cargo interests. The appeal concerns the scope of the Hague and Hague-Visby Rules and their application to the carriage of goods by sea in containers.

    The factual background

  2. The factual background was common ground at the trial and before this Court. The respondent claims as the receiver of three container loads of frozen tuna shipped at Cartagena in Spain for carriage by the appellant to Japan. The containers formed part of an original booking for the carriage of 12 Super Freezer containers at -60°C from Cartagena Container Terminal to Maersk Yokohama Terminal via Valencia and Singapore. The cargo was booked by an entity called Fuentes on behalf of the respondent.

  3. The cargo in the three containers comprised frozen Bluefin tuna loins each weighing at least 20kg and up to 75kg and, in the case of container A, bags of frozen Bluefin tuna parts, each bag weighing 20kg plus or minus 10%. The containers were stuffed by the shippers and delivered to the appellant pre-stuffed. The frozen tuna loins were stuffed into the containers as individual items of cargo, without any wrapping, packaging or consolidation. The bags were stuffed into the containers as individual bags, without additional wrapping or packaging, and without consolidation. The three loads were made up as follows:

    (i) Container A contained 206 frozen loins and the bags (said by the claimant to number 460).

    (ii) Container B contained 520 frozen loins.

    (iii) Container C contained 500 frozen loins. That container was re-stuffed into the Replacement Container at Barcelona following a possible malfunction of the refrigeration equipment of Container C.

  4. It was common ground that the three containers were received by the appellant pursuant to a contract or contracts of carriage incorporating the appellant's standard terms and conditions of carriage (``the Maersk Terms'') and containing an implied term that the shippers were entitled to demand that a bill or bills of lading be issued by the appellant. The respondent's title to sue was in issue on the pleadings but the judge proceeded on the basis that the respondent had good title to sue pursuant to the contract(s). This was not a matter in issue on the appeal.

  5. Maersk drew up and provided to the respondent a draft straight consigned bill of lading covering all 12 containers naming Caladeros de Mediterraneo S.L. (``Caladeros'') as shipper and the respondent as consignee. In the draft, under the rubric ``Particulars Furnished by Shipper'' and the standard form words: "Kind of Packages; Description of goods; Marks and Numbers; Container No./Seal No.", was stated: ``11 containers said to contain 5782 PCS FROZEN BLUEFIN TUNA LOINS'', listing those containers (which included Containers B and C) and the number of "PCS" and weight of tuna in each, and ``1 Container Said to Contain 666 PCS, 206 PCS FROZEN BLUEFIN TUNA LOINS, 460 BAGS FROZEN BLUEFIN TUNA OTHER PARTS'', identifying Container A as that container, repeating its contents as "666 PCS" and stating a weight for those contents.

  6. All twelve containers were shipped on Maersk Tangier on 24 November 2012. She sailed from Cartagena to Valencia, where nine of the twelve containers were transshipped on to Maersk Emden on 3 December 2012, but Containers A, B and C were not. They were transshipped instead onto Maersk Eindhoven, which departed Valencia on 3 January 2013. Due to an alarm triggering on Container C, it was discharged from Maersk Eindhoven at Barcelona. Its contents were re-stuffed into the Replacement Container, which was then shipped on Maersk Tangier on 13 January 2013.

  7. On 17 and 18 January 2013, the respondent made a request (to which the appellant agreed) that the destination of Container B and the Replacement Container be altered to Shimizu, requiring onward carriage by road from Yokohama to Shimizu.

  8. No bill of lading was ever in fact issued in respect of any of the three containers. What happened is that, in order to avoid further delay in delivery, the appellant proposed in an email dated 28 January 2013 to issue sea waybills: "If you need not issue in Japan, we will revise to Sea Waybills. Please confirm." The respondent agreed to this proposal on the telephone.

  9. Accordingly, the appellant issued three sea waybills. Those for Containers A and B were dated 8 February 2013. The waybill for the Replacement Container was dated 12 February 2013. Each waybill stated that it was a "NON-NEGOTIABLE WAYBILL" and named Caladeros as shipper and the claimant as consignee. In the Waybill for the Replacement Container, the claimant was also named as notify party.

  10. As regards the goods covered:

    (1) Like the draft bill of lading, each waybill contained a central section on its face headed "PARTICULARS FURNISHED BY SHIPPER", above standard-form introductory words, "Kind of Packages; Description of goods; Marks and Numbers; Container No./Seal No."

    (2) The entry in that section was in each case "1 Container Said to Contain [no.] PCS FROZEN BLUEFIN TUNA LOINS", followed by particulars identifying respectively Container A, Container B and the Replacement Container. The number of "PCS" stated in each case was the number of individual frozen tuna loins, i.e. 206, 520 and 500 respectively.

    (3) The waybill for Container A made no mention of the bagged frozen tuna parts. It stated a total weight of 18,740 kg for the 206 frozen tuna loins. The draft bill of lading had stated that as the weight of 666 items, namely the 206 frozen tuna loins plus 460 bags of other parts.

    (4) Towards the bottom, on the left, each waybill had a box for "Carrier's Receipt. Total number of containers or packages received by Carrier", in which the entry was "1 container".

  11. Container A was discharged to the respondent at Yokohama on 15 February 2013; Container B and the Replacement Container were discharged at Yokohama on or about 22 February 2013 and 1 March 2013 respectively and delivered to the respondent at Shimizu on 27 February 2013 and 5 March 2013 respectively. The respondent contends that the tuna as delivered to it was damaged through raised temperatures during carriage and/or rough handling during re-stuffing into the Replacement Container. It says that the damage should be valued for the purposes of compensation at about ¥ 121 million (at the time about £858,000) in the aggregate.

  12. It is common ground that any liability of the appellant is governed by the Maersk Terms and by either the Hague-Visby Rules or Articles I to VIII of the Hague Rules, Article IV rule 5 of each of which sets out monetary limits of liability. Those limits are £100 ``per package or unit'' in the Hague Rules and, in the Hague-Visby Rules, the greater of 666.67 units of account ``per package or unit'' or 2 units of account ``per kilogramme of gross weight of the goods lost or damaged''.

  13. Of the preliminary issues ordered to be tried, only three remain relevant on this appeal:

    (1) Is liability limited pursuant to Article IV rule 5 of the Hague Rules or pursuant to Article IV rule 5 of the Hague-Visby Rules (whether applicable compulsorily or contractually)?

    (2) If liability is limited pursuant to Article IV rule 5 of the Hague Rules, are the relevant packages or units the containers or the individual pieces of tuna?

    (3) If liability is limited pursuant to Article IV rule 5 of the Hague-Visby Rules, are the containers deemed to be the relevant package or unit for the purposes of Article IV rule 5(c), or are the individual pieces of tuna ``packages or units'' enumerated in the relevant document as packed in each container for the purposes of Article IV rule 5(c)?

  14. Issue 3 as originally ordered also raised the question of what is the relevant document in which the number of packages or units must be enumerated for the purposes of Article IV rule 5, specifically whether it was relevant to look at what was enumerated in the draft bill of lading or it was only relevant to look at what was enumerated in the sea waybills. The judge recorded at [7] of his judgment that Mr Robert Thomas QC for the respondent conceded that the answer was the sea waybills so that he said no more about it in the judgment, other than at [121] where he recorded again that, by agreement, it was only relevant to look at the waybills. However, before this Court there was some debate on this question, to which I will return below, given that Article IV rule 5(c) refers to what is ``enumerated in the bill of lading'' and there was in fact no bill of lading issued in the present case.

    The Hague and Hague-Visby Rules

  15. Before considering the judgment in more detail it may be helpful to set out the relevant provisions of the Hague and Hague-Visby Rules. The Hague Rules were enacted in this jurisdiction by the Carriage of Goods by Sea Act 1924. The provisions of the Rules set out in the Schedule to the Act which are relevant for present purposes are:

    ``Article I

    Definitions

    In these Rules...

To continue reading

REQUEST YOUR TRIAL