SELECTED PROBLEMS OF MARITIME LAW UNDER
THE HAGUE RULES
William Tetley*
Introduction
Steamship owners and other water carriers are benefited by special legislation
exempting them from certain responsibilities which they would normally
have. The legislation is quite international in its application in that the
main trading nations of the world have adopted almost identical laws (known
as the Hague Rules), the result of an international convention in 1924. Canada’s
version of the Rules is the Water Carriage of Goods Act (1936).
Three subjects of intense interest to ocean carriers and cargo claimants are
deviation, fire, and deck cargo. Each in turn is considered below in the light
of the Hague Rules.
I – Deviation
One of the great sources of controversy of pre-Hague Rules law arose when-
ever the vessel deviated from the agreed voyage. Was the contract breached
as a result of the deviation and was the carrier responsible for the loss no
matter how caused? The Hague Rules were designed to define and fix the car-
riers’ responsibilities in such cases as deviation, and, if not all the problems of
deviation, have been solved, there has been a surprising consistency in the
jurisprudence of the various contracting countries of the world.
A deviation before the Rules was known as a change in the route of the
planned voyage, and the result was that the carrier could not rely on the
benefits of the law or of the contract. This placed him in a very vulnerable
position.
The Rules do not define a deviation nor do they outline the consequences.
Deviations are only referred to in Article IV (4) where what a deviation is not
is set out. This article reads as follows:
Any deviation in saving or attempting to save life or property at sea or any reasonable devia-
tion shall not be deemed to be an infringement or breach of this Convention or of the Contract
of Carriage and the carrier shall not be liable from any loss or damage resulting therefrom.
The Canadian and British Acts are identical while the American Act adds:
provided, however, that if the deviation is for the purpose of loading or
unloading cargo or passengers, it shall prima facie be regarded as unreasonable.”
Article IV (2-j) is also important and exculpates a carrier for loss or damage
arising from “strikes or lockouts or stoppage or restraint of labour from
whatever cause, whether partial or general.” This section suggests that a
carrier can deviate to another port if the discharge port is strike-bound in
*Of the Bar of Montreal.
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order to mitigate the damages because a carrier is always bound to mitigate
the loss.
Reasonableness is the Criterion
Reasonableness of a deviation is the common law principle adopted verbatim
by the Hague Rules. Whether deviation is reasonable or not has always been
said to be a question of fact. Usually, the test of reasonableness is whether
both parties are benefited by the deviation. In Foscolo Mango v. Stag Line,1
it was held by the House of Lords that a deviation to land engineers, who were
aboard to test a superheater, was not reasonable because it was for the sole
benefit of shipowners. In referring to what is reasonable, Scrutton, L. J. said
in the same case in the Court of Appeal :2 “The interests to be considered must
be those of the parties to the contract adventure which may include consideration
of their underwriters.”
In the same case, Greer, L. J. said: “The words mean
a deviation whether in the interests of the ship or the cargo owner or both,
which no reasonably minded cargo owner would raise any objection to.”
However, these are not criteria that can be applied in every case. Perhaps a
better criterion is whether the deviation is generally in the best interests and
practices of commerce.
Strikes have often been held to be a reasonable cause of deviation. 3
Canadian Jurisprudence
In the Canadian case of Toronto Elevators Ltd. v. Colonial Steamships Ltd.,’
the vessel before discharging went two miles further downstream to turn and
after turning, but before discharging, stopped to fuel and struck the fieling
wharf, damaging cargo. It was held that the stopping to fuel was reasonable,
the Court noting that if there had been a delay in unloading, the fuel might
have been insufficient.
American Jurisprudence
The American Courts have been quite strict as to what is reasonable.
In the Louise,5 it was held that: “Where a vessel sails in flagrantly unsea-
worthy condition and is forced to return to port for repairs, she is guilty of a
deviation and is not entitled to retain prepaid freight; the bill of lading provid-
ing that freight shall be retained ship lost or not lost is displaced.” Never-
‘(1931) 41 Lloyd’s 165.
2(1931) 39 Lloyd’s 101.
WManx Fishtr [1954] A.M.C. 177. The vessel deviated to another port because of a strike. The
bill of lading had a clause allowing such deviation or change of course, and it was held that this was
not a deviation because it was permitted and reasonable. The Court noted that the decision of the
carrier to divert should depend on all the cargo on board and not merely on any one shipment.
4[1950] Ex. C.R. 371.
5[1945] A.M.C. 363.
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55
theless, returning to port for repairs is not a deviation even if the repairs are
due to lack of due diligence when the return was required for the safety of the
crew.6 In such a case, cargo in any event could still claim on the grounds of
lack of due diligence.
In the Ruth Ann,’ discharge of cargo at Puerto Rico instead of Havana was
held to be an unreasonable deviation by the U.S. Court of Appeals. The political
situation in Cuba was well known when the bills of lading were signed. “Nor
was such deviation excused by bill of lading clauses permitting calls at ports
out of the usual order, or discharging goods into a safe place in order to prevent
seizure or detention.” However, in American Tobacco v. Katingo Hadjipatera,8
rerouting of a vessel by naval authorities because of the outbreak of war excused
the vessel from the effects of a long voyage and climate.
American Courts have also considered as a deviation not only geographical
deviation but other breaches of the contract. Deviation therefore has a much
broader connotation in the American Common Law.
Over-carriage of cargo has on occasion been declared a deviation as in the
Silvercypress,9 where over-carriage from Manila to Iloilo was held to be a
deviation. The carrier was therefore liable for loss of the over-carried cargo
by fire at Iloilo, although it would have otherwise been exonerated from
liability for the fire. Mere non-delivery does not create a presumption, however,
of over-carriage resulting in a deviation.’ 0
In Lafcomo,” lily-of-the-valley pips were to be carried on deck under tar-
paulins. No tarpaulins were supplied. It was held that the failure to use
tarpaulins was a deviation from the agreed method of transportation and thus
the carrier could not invoke an invoice value clause.
British Jurisprudence
The British jurisprudence is less strict than the American jurisprudence,
perhaps because of the British principle that two persons may contract in any
way they wish and the British reluctance to accept the Rules as an overriding
statute limiting this right to contract.
Nevertheless, Scrutton, L. J. quickly seized upon the true nature of the
Rules and declared in Foscolo Mango and Co. Ltd. v. Stag Line Ltd. :12 “The provi-
sions of the Act impart into the agreement compulsorily certain exceptions,
but there is nothing in the Act to show that these exceptions can be relied
6L.W. and P. Armstrong Inc. v. S.S. Mrmnacmar [1952] A.M.C. 1088, at 1090.
7[1962] A.M.C. 117.
8[1949] A.M.C. 49.
911943] A.M.C. 510.
1Sbackman v. Cunard White Star [1940] A.M.C. 971.
11[1947] A.M.C. 284.
12(1931) 39 Lloyd’s 101, at 111.
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upon while the vessel is not pursuing the contract voyage, but is pursuing a
voyage, or part of it, which is not covered by the contract at all.”
In Frenkel v. Macandrews and Co. Ltd.,” the bill of lading contained a clause:
“… with liberty to touch at any ports whatsoever although they may be
outside the route without it being considered a deviation.” It was the regular
practice of the carriers to go either direct or via Levante. It was known that
the vessel was going via Levante. This was held to be the route and there
was no deviation.
Consequences of a Deviation
If there is a deviation, then the carrier cannot rely upon the exculpatory
exceptions in the Hague Rules and in some American judgments has been
called the insurer. 14 It has also been commonly said that the common law
consequences of deviation were unaffected by the Hague Rules.15 It has been
held as well that while upon the deviation, the carrier is not responsible for
damage which might equally have occurred even had there been no deviation. 6
In every case of deviation, it is first necessary to determine what the con-
tract of carriage was. The bill of lading on its face will normally only declare
the ports of loading and discharge; if it should mention a specific route or
other ports of call, then of course that is in effect the route agreed upon. The
real contract of carriage is not the bill of lading, it being only the best evidence
of the contract.17 The real geographical route would probably be found from
a study of:
a) the customary routes taken by the line in the past,
b) the notices and advertisements before the voyage,
c) the booking-note and,
d) the bill of lading itself.
Burden of Proof
Because all the facts are available to the carrier, the carrier usually is given
the burden of proving the geographical route contracted for and that the loss
took place while the vessel was on that route. Claimant must then prove the
deviation.
1(1929) 33 Lloyd’s 191.
‘ 4San Guiseppe [1941] A.M.C. 1301; in Singer Hosiery Mills v. Cunard White Star [1951] A.M.C.
988, an overcarriage was held to be a deviation and the carrier was the insurer but the claimant
still had to sue within the one year limit.
1sFoscolo Mango v. Stag Line (1931) 41 Lloyd’s 165, at 170.
‘5 San Guiseppe [1941] A.M.C. 1301; The Tai Shan [1953] A.M.C. 887.
“Scrutton, Charterparties and Bills of Lading (1955), 16th edition, p. 10.
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57
Nevertheless, the burden of proof in questions of deviation does not sit
squarely on the shoulders of either party. Rather, deviation appears to be
one of those legal questions in which each party is obliged to (and to protect
its interests, should) do everything that it can to make proof of its own con-
tentions and to contradict the contentions of the other side. If, however, a
rule of burden of proof exists as to deviation, it is probably that the carrier
must prove the geographic route of the contract and that the loss took place
on the route. The deviation must then be proved by the claimant and the
reasonableness of the deviation must at that point be proved by the carrier.
General Clauses
Some bills of lading contain general clauses permitting deviation. Where
the general clause does not specifically refer to a particular port or a particular
expected incident, it is merely a cover-all, and such a clause in my opinion is
invalid because it permits unreasonable deviations contrary to the Rules. Such
a clause does not allow the cargo claimant to know what can be expected nor
permit him to know the route of the voyage at the time of the shipment.
Generally, the Courts have looked not so much at the clause permitting
the deviation as at the deviation itself to determine if it is reasonable. In
other words, the clause is of less importance than the actual facts of the devia-
tion. Such a clause in no case will ever permit more than a reasonable devia-
tion.”‘ Learned Hand, J., in the Blandon” gave the rule in very clear terms.
Referring to a general clause which read: “with liberty to call at any port or
. .”, he observed, “It is
ports in or out of the customary route in any order .
said that the clause will allow only reasonable deviations and this is indeed
true, since such a clause is to be construed in its context.”
18G. H. Renton and Co. v. Palmyra Trading (1956) 2 Lloyd’s 379. A bill of lading incorporating the
Canadian Water Carriage of Goods Act (1936) had a clause allowing discharge at another port in case
of epidemics, strikes, etc. The ports of discharge were London and Hull and they were strike bound.
The vessel discharged at Hamburg and it was held that the clause was not repugnant to the Hague
Rules and to 111(2) that “the carrier shall properly carry and discharge the goods.”
It was held
that the clause was not concerned with deviation but with providing other ways of performing
the contract if certain events should take place. In Hirsh Lumber Co. v. Wtyerhaeuser [1956] A.M.C.
1294, a bill of lading between two American ports but involving Cogsa had a clause allowing the
master to discharge at a port other than the proper destination when there might be “delay or
difficulty” in the discharge. There was a strike and the U.S. Court of Appeals held that discharge
could be made at Baltimore rather than Newark or New York. See also: Ocean Liberty [1952] A.M.C.
1681, [1953] 1 Lloyd’s 38. In Connolly Shaw v. A/S Det Nlorden Fjeldske (1934) 49 Lloyd’s 183, a ship-
ment of lemons was carried under a bill of lading which had a deviation clause. The vessel deviated
and took three days longer (upon a voyage of 22 days). Held: the clause gave the ship liberty to
call at any port or ports, etc. as long as the object of the voyage was not frustrated, i.e., the safe
carriage of a perishable cargo; and there was no evidence that the extension of the voyage had caused
measurable harm. Further, owing to the liberty given to the ship under the deviation clause, the
arrival date could not have been anticipated within a day or so and therefore no loss of market
could be shown (nor was a falling market anticipated).
“‘The Blandon 287 Fed. Rep. 722, [1923) A.M.C. 242.
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II – Fire
Carriers by water are not responsible for damage to cargo caused by fire in
virtue of the Hague Rules. This is a special privilege which is not given to
land carriers and bailees who usually have little defence for damage by fire.
The water carrier is only liable for fire if his personal fault actually caused
the fire.
The exception for fire under the Hague Rules reads as follows:
IV (2) (b) “Fire, unless caused by the actual fault or privity of the carrier”.
This exception benefits the owners of the vessel and the charterers and any
others who may be defined as carriers.20
Due Diligence
The carrier, in order to exculpate itself under Article IV (2) (b) must first
prove it exercised due diligence before and at the beginning of the voyage to
make the vessel seaworthy in virtue of Article III (1).21 This diligence can be
delegated but carriers are responsible for the negligence of the agents, surveyors,
etc. to whom they delegate their responsibilities.22
Burden of Proof
Once the carrier has proven it has exercised due diligence, then it must
prove that the fire caused the loss. Here it should be noted that fire means a
flame and not merely heat. 23
It is not clear from the Act as to who then has the burden of proving the
fault or privity of the carrier. American jurisprudence based on the American
Fire Statute, 46 U.S.* Code, Section 182, which differs in wording from the
exception in the Hague Rules, places the burden of proof on the cargo claimant.”4
In Great Britain, where the fire statute is set out in the Merchant Shipping
20The Shell Bar [1955] A.M.C. 1429, [1953] 1 Iloyd’s 38; see Article I (a) of the Rules. In the
Venice Maru [1943] A.M.C. 1209, the fire statute was held to benefit the owner in personam as well
as the ship in rem.
2″Maxine Footwear Co. Ltd. v. Canadian Government Merchant Marine (1959) 2 Lloyd’s 105. The Privy
Council held that: “Article III, Rule I, was an overriding obligation, and if it was not fulfilled and
the non-fulfilment caused damage, the immunities of Article IV could not be relied on.”
Riwverstone Meat (Muncaster Castle) [1961] 1 Lloyd’s 57, [1961] A.M.C. 1357.
-Buckeye State [1941] A.M.C. 1238. “Fire implies more than heat; if there is no glow or flame
there is no fire” (Grain was damaged by light bulbs left on in the holds. The carrier was held liable
and the fire statute did not apply); American Tobacco Co. v. S.S. Katingo [1949] A.M.C. 49, at p. 58:
“It is urged that because some damage occurred by heating before the fire broke out, then, if the
ship cannot prove what damage was solely caused by fire she is liable for all damage. This argument
would nullify the fire statute in many, if not all, cases of spontaneous combustion-an absurd result.”
2ASandgate Castle [1939] A.M.C. 463: “In a ship fire case, cargo claimants should be given wide
latitude as to interrogatories, in their endeavour to discharge the heavy burden of proof placed on
them.” The Sbell Bar [1955] A.M.C. 1429, [1953] I Lloyd’s 38.
No. 1] PROBLEMS OF MARITIME LAW UNDER HAGUE RULES
59
Act, 1894, Section 502 (1), the Courts have placed the burden on the carrier of
proving that there was no fault or privity on its part. 25 Generally, the Courts
of these two countries in deciding the exception under the Hague Rules have
followed the jurisprudence already relating to their particular fire statutes.
In my view, the burden of proof, is again one which is not clearly defined and
where both claimant and carrier must do their utmost in proving the fault
and privity on the one hand and in disproving it on the other. From a straight
reading of the Act, however, I gather that the claimant has the burden of
proving the fault and privity of the carrier after the carrier has first proven
due diligence to make the vessel seaworthy and that fire caused the loss.
Fault of Carrier
The fault and privity of the carrier must be the fault of the carrier itself
and not merely of an employee or agent. This normally means a senior employee
or officer of the company. 2
A carrier is not responsible for the fault of its agent, except before and at
the beginning of the voyage. In consequence, the carrier is responsible for the
thawing of frozen waste pipes by an acetylene torch which causes the vessel to
be actually on fire at the beginning of the voyage, even though the cargo was
only destroyed during the voyage.2 7 However, if the employee or agent made
25Lennard’s Carrying Co. v. Asiatic Petroleum Co. [1915] A.C. 705.
261n Maxine Footwear v. Canadian Government Merchant Marine [1956] Ex. C.R. 234, it was held
that under IV (2) (b), the fault and privity of a corporation is an act known by and under the instruc-
tions of the senior officer in question. In the Anglo Indian [1944] S.C.R. 409, [1944] A.M.C. 1407,
fire caused by the heating of a cargo of concentrates was excused by the Supreme Court of Canada
upon showing that skilled chemists were employed to test the cargo and recommend how it should
be stored. One gathers that this judgment would not now be rendered in virtue of the House of
Lords decision in Riverstone Meat [1961) I Lloyd’s 57, [19613 A.M.C. 1357, and the Privy Council
in Maxine Footwear [1959] 2 Lloyd’s 105. It is to be noted as well in the Anglo Indian that the question
of due diligence to make the vessel seaworthy at the beginning of the voyage and delegation of
that diligence was not considered or pressed to any great extent. In the Edmund Fanning [1953)
A.M.C. 86, acid was stowed above other chemicals. The vessel owners had employed an expediter
to assist in stowing cargoes. This negligence was held to be within the terms “Fault and privity
of the Carrier”. The Court of Appeals failed to consider the question of delegation due diligence
but instead seemed to extend the definition of the word “‘carrier”. In the Ocean Liberty [1952] A.M.C.
1681, [1953) 1 Lloyd’s 38, the acceptance of a large quantity of ammonium nitrate for a trans-Atlantic
voyage without proper enquiry as to the possibility of spontaneous combustion would have consti-
tuted an actual fault of the carrier. Here, however, proper enquiries were made and thus the carrier
was not at fault. In American Tobacco v. Katingo [1949] A.M.C. 49, at 58, improper stowage of the
master was not held to be the fault of the vessel owner, nor is the fault of the charterer’s agent
fault of the charterer.
“7Maxine Footwear v. Canadian Government Merchant Marine [1956] Ex. C.R. 234, at 247: “I think
it is clear that in order to deprive the carrier of the benefit of the exception, the fault or privity must
be in respect of that which causes the loss or damage in question.” In The Tai Shan [1953] A.M.C.
887, a vessel deviated from its course and a fire started. It was held that even if the deviation was
unreasonable the cargo interest had not sustained the burden of proving that there was a causal
connection between the deviation and the fire.
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the same error during the voyage, then the carrier could exculpate itself in
virtue of Article IV (2) (b).
The fault of the carrier must be directly connected with the fire. To have
committed a fault is not sufficient.
It should be noted finally that once a fire has been discovered, then the
carrier can still be held responsible if it is negligent in extinguishing the fire
because such negligence is in effect negligence in the care and custody of the
cargo. 28
General Average
The exemption of liability under the British fire statute gives the owner
the right to general average29 but this right is not given to the American
owner.30 The American practice seems to me to be more in accord with the
principles of general average.
The Fire Statutes
Canada has no fire statute other than the fire exception in the Hague Rules.
Great Britain and the United States not only have the fire exception in their
versions of the Rules but fire statutes as well. The fire statutes are as follows:
American Fire Statute:
“No owner of any vessel shall be liable to answer for or make good to any prson any loss or
damage which may happen to any merchandise whatsoever which shllbe shipped, taken
in, or put on board any such vessel, by reason or by means of any fire happening to or on board
the vessel, unless such fire is caused by the design or neglect of such owner.’
46 U.S. Code, Section 182.
The British equivalent is as follows:
Merchant Shipping Act, 1894, Section 502:
“The owner of a British sea-going ship or any share therein, shall not be liable to make good
to any extent whatever any loss or damage happening without his actual fault or privity in
the following cases, namely– (1) where any goods, merchandise or other things whatsoever
taken in or put on board his ship are lost or damaged by reason of fire on board the ship… ”
It is to be noted first of all that both fire statutes apply only to the owner
of a vessel. It should be next noted that the fire statutes apply even when the
Rules are not in force. (See Section 6 (2) of the British Act and Section 8 of
Cogsa).
There do not appear to have been any conflicts to date between the Hague
Rules and the fire statute in either Great Britain or the United States. There
are two differences however as noted above:
a) Under the Hague Rules the carrier must have exercised due diligence
before the voyage.
“SAmerican Mail Line v. Tokyo M. and F. Insurance Co. [1959] A.M.C. 2220.
29Tempus Shipping Co. Ltd. v. Louis Dreyfus and Co. [1931] A.C. 726; (1931) 40 Lloyd’s 217.
3mZaca [1939] A.M.C. 912; Venice Maru [1943] A.M.C. 277.
No. 1] PROBLEMS OF MARITIME LAW UNDER HAGUE RULES
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b) Under the Rules since the recent Riverstone Meat3′ decision, the owner is
responsible if the agent or servant is negligent in making the ship sea-
worthy while the fire statutes only refer to the owner’s personal fault.
In the Maxine Footwear2 judgment where Canadian law was ruled upon, it
was clearly held by the Privy Council that the carrier was responsible for fire
damage because servants of the owner had not been duly diligent before and
at the beginning of the voyage to make the ship seaworthy. If such a judgment
had been tried under American and British law, where there is a fire statute,
the Courts might have been reluctant to come to the same conclusion because
the fire statutes make no reference to due diligence to make the vessel sea-
worthy. I believe however that the Hague Rules and the fire statute must be
read together in America and Great Britain whenever the Rules apply and that
due diligence to make the vessel seaworthy is a precedent condition.
The American solution to this dilemma seems to have been the widening of
the definition of the term “carrier.”3
The burden of proof under the fire statute has been upon the claimant in
the United States 34 and upon the carrier in Great Britain. 5 This is one of
those rare cases where America, a shipping country, has given the advantage
to owners whilst Great Britain, a shipowning nation, has favoured shippers.
III – Deck Cargo and The Hague Rules
A clean bill of lading before the Hague Rules3” and since has always meant
that the cargo is carried under deck. 37 This is one of the basic principles that
must be understood in any consideration of deck cargo in the light of the
Hague Rules, or otherwise. Unfortunately, there is nothing in the Rules
stipulating that a clean bill of lading means under-deck carriage. It would
have been fitting to have included such a stipulation in Article Inl, Rule 3.
A second principle of the pre-Hague Rules common law, which is similar
to the first principle, and which is not set out in the Rules, also has equal
effect today. It is that, where the carrier contracts to carry goods without
stipulating the place of stowage, it is understood in the contract that the
goods are carried under-deck. 38
31[1961] 1 Lloyd’s 57; [1961] A.M.C. 1357.
8[19 59] 2 Lloyd’s 105.
uOcean Liberty [1952] A.M.C. 168; [1953] 1 Lloyd’s 38; Edmund Fanning [1953] A.M.C. 86.
3’Silvercypress [1943] A.M.C. 224; The Venice Maru [1941] A.M.C. 640, [1943) A.M.C. 277 and 1209.
n5Lennard’s Carrying Co. v. Asiatic Petroleum Co. [1915] A.C. 705.
uThe Hague Rules define the rights and obligations of ocean carriers when a bill of lading is issued.
“7Schooner St. John’s N.F. [1923] A.M.C. 1131, “In the absence of a general port custom with notice
of which all shippers are charged a clean bill of lading imports under deck stowage.”
Jones and Guerrero v. Flying Clipper [1954] A.M.C. 259; T. Roberts and Co. v. Calmar SIS. Corp. [1945)
A.M.C. 375.
38Royal Exchange Co. v. Dixon (1887) 12 A.C. 11.
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Deck cargo is particularly excluded by the Hague Rules under Article I (c)
.goods, wares, merchandise and articles of every
cargo which by the contract of carriage is stated
where goods are defined as
kind whatsoever except …
as being carried on deck and is so carried.”3 9
Custom
It should be noted that before the Hague Rules, if it was the custom to
carry certain goods on deck in a certain trade, then the bill of lading did not
need to mention that the goods were in fact carried on deck. A good example
of the custom was the carriage of pulpwood and lumber in the St. Lawrence
River trade by goelettes. Goelettes are built for deck carriage, and part of the
cargo is normally carried on deck. This third pre-Hague Rules principle has
little basis for application now because the Rules are not silent but stipulate
“which by the contract of carriage is stated as being carried on deck.” Most
texts and authors seem to take the position that the principle of custom is
still carried on under the Rules. There appears to be no Hague Rules judgment
on the point, however, and no basis for the position in the Rules themselves.
The Rules therefore apply in the following cases:
a) cargo is carried under-deck and a clean bill of lading is issued;
b) cargo is carried under-deck and is “stated” as carried on deck;
c) cargo is carried on deck and is not “stated” as carried on deck;
d) cargo is carried on deck and is stated as carried on deck but the bill of
lading by a special clause invokes the Rules as to deck cargo.
The Rules do not apply when cargo is carried on deck and the face of the
bill of lading states that the cargo is on deck.
A General Deck Stowage Clause Is Not A Statement
It should be made clear that a general clause among the clauses in a bill of
lading is not a statement that cargo is carried on deck. This can be seen from
a reading of Article I (c). See also Svenska Traktor v. Maritime Agencies.40
What is deck stowage? In The Lossiebank4″ it was held that “stowage of
cargo in the ship’s hospital, a steel structure on deck having heavy wooden
doors which were burst in by a hurricane” was proper under-deck stowage.
39It should be noted that the Hague Rules can be applied to deck cargo if there is an express
statement in the bill of lading that the Hague Rules will apply to deck cargo. In such a case the
Rules would apply in every possible respect and the carrier must exercise care in the normal manner.
In Diethem and Co. v. S.S. Flying Trader [1956] A.M.C. 1550, it was held that the carrier and shipper
can contract to invoke Cogsa to deck cargo. The carrier in this case alleged but did not prove peril
of the sea and was thus held responsible. Uniao de Transportadores v. Acoreanos [1949] A.M.C. 1161;
West Kyska [1946] A.M.C. 997; Panndl v. S.S. American Flyer [1958) A.M.C. 1428.
40[1953] 2 Lloyd’s 124.
4t[1938] A.M.C. 1033.
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63
The Effect of Deck Carriage
The effect of deck carriage of goods so stated in the bill of lading is that
the Rules do not apply 42 and consequently the carrier can insert into the bill
of lading clauses which are contrary to the Rules. Nevertheless, if the goods
are carried on deck, carriers are still obligated to be careful of the goods, must
stow them properly, and must not be negligent.43
On the other hand, if the goods are in fact carried on deck when there is no
mention in the bill of lading that they are carried on deck, then the carrier is
the insurer of the goods.44 American Courts have even considered this as a
deviation. 4 It should be noted that the Rules apply in a case of goods carried on
deck and not “stated” as being carried on deck. In such a case the carrier is
responsible for any damage and cannot rely on IV (2) (a) to (q) in virtue of the
breach of the preliminary obligation of Rule 111 (2), “. .
. the carrier shall
properly and carefully load, handle, stow, carry, keep, etc ….. “4 Deck stowage
cannot be considered proper stowage. Deck carriage might also be considered to
be a deviation in virtue of IV (4), but I believe it is best to consider it as a
breach of the contract and to consider deviation as a change in the geographic
route of the voyage.
If, however, there was deck carriage and a clean bill of lading was issued
in error, then as between the original parties –
the
carrier may show that a clean or under-deck bill of lading was issued in error
and that the parties had agreed to stowage on deck. 47
shipper and carrier –
General Clauses Permitting Deck Carriage
Confusion has arisen from clauses in bills of lading permitting deck cargo.
The clause (joined with a non-responsibility clause) might read as it did in the
Svenska Traktor:40
Steamer has liberty to carry goods on deck and shipowners will not be responsible for any
loss or damage or claim arising therefrom.
In my opinion such a clause is only valid if the goods are carried on deck and
the bill of lading has a statement on its face that the goods are carried on deck.
12Aetna Ins. Co. v. Carl Matusek [1956] A.M.C. 400. The one-year time limit was held inapplicablc
in this case of deck cargo which was noted as loaded on deck. Suit taken 14 months later was held
to be valid.
4Globe Solvents Co. v. S.S. California [1946] A.M.C. 674; Ponce [1946] A.M.C. 1124. Here it was
held that, “Where goods are loaded on deck at shipper’s risk the carrier is not relieved of due care
and attention toward the cargo.” Cour d’Appd d’Aix [1961] D.M.F. 525; The Stranna (1938) 60
Lloyd’s 51; Cour d’Appd d’Aix [1952] D.M.F. 413; Cour d’Appel de Paris [1953] D.M.F. 130.
44Royal Exchange Co. v. Dixon (1887) 12 A.C. 11; Idef’ord [1940] A.M.C. 1280.
45Jones and Guerrero v. Flying Clipper [1954] A.M.C. 259. The carrier issued a clean bill of lading
but stowed goods on deck. This was a deviation and consequently the bill of lading did not apply
and the limitation per package did not apply.
“Italics added.
‘7 Trxas Petroletum Corp. v. S.S. tykes [1944] A.M.C. 1128.
McGILL LAW JOURNAL
[Vol. 9
The problem arises if the bill of lading contains a general clause as above
but the face of the bill of lading does not state deck carriage. Under such
circumstances I consider that there has been an unjustifiable deck carriage and
a breach of the contract and for at least four reasons:
1) To my mind the general clause is merely an option which the carrier
does not ordinarily have (see the second principle above). If the bill
of lading does not bear a statement of the deck carriage, then the option
has not been exercised. This was the position taken by the U.S. Supreme
Court in St. John’s N. F.4
8
2) Another argument which to me is irrefutable is that the typewritten
wording on the face of a bill of lading has precedence over the printed
clauses in a bill of lading. A clean bill of lading is a statement of under-
deck stowage which contradicts the printed general clause.
3) To consider a general clause as valid if there is no statement of deck
carriage would in effect permit a non-responsibility clause, hidden in
the clauses of the bill of lading. Such a non-responsibility clause is invalid
in virtue of the Hague Rules (Rule 111,8), which Rules it must be re-
membered apply in this case.
4) Finally, the deck stowage would not be considered as proper stowage
under 111 (2) of the Rules, and in this case the carrier would be responsible
for this lack of care.
I believe that a general deck carriage clause without a statement of deck
carriage is an option not exercised and a fundamental breach of the contract
and the Rules. The remark of Lord Atkin in Stag Line v. Foscolo Mango4″ would
seem to apply:
I find no substance in the contention faintly made by the defendants that an unauthorized
…
deviation would not displace the statutory exceptions contained in the Carriage of Goods
by Sea Act. I am satisfied that the general principles of English law are still applicable to the
carriage of goods by sea except as modified by the Act; and I can find nothing in the Act which
makes its statutory exceptions apply to a voyage which is not the voyage the subject of the
‘contract of carriage of goods by sea” to which the Act applies.
There are a number of decisions concerning general clauses which I believe
are erroneous. In Svenska Traktor 0 the Court held that a general liberty clause
is not a statement that the goods are carried on deck, but ignored whether the
clause was an option, and also that the printed clause was contradicted by the
clean typed face of the bill of lading. The Court applied the Hague Rules in
48Schooner St. John’s N.F. [1923] A.M.C. 259. A freight reservation was entered into containing
the clause “on or under deck, ship’s option”. A clean bill of lading was issued which did not contain
a general clause. The U.S. Supreme Court took the reservation and the bill of lading together as
the contract and declared that the carrier had an option to carry on or under deck but that the issuance
by the ship of a clean bill of lading on its face amounts to a positive representation that the option
has been exercised and that goods will go under deck.
49[3932] A.C. 328, at p. 340, (1931) 41 Lloyd’s 165, at p. 170.
No. 1] PROBLEMS OF MARITIME LAW UNDER HAGUE RULES
65
virtue of a clause to that effect in the bill of lading (ignoring that the Rules
applied in any event), but then ignored Rule HI (2), and Rule III (8). The
judgment seems particularly weak because the bill of lading clause invoking
the Rules further provided: “If, or to the extent that any terms of this bill of
lading is repugnant to or inconsistent with anything of such Act or Schedule,
it shall be void”. The Court found that the non-responsibility clause was
repugnant to the Act but held that the liberty to carry on deck was not con-
trary to III (2). Other judgments are Armour v. Walford and the Peter Helms,51
the first deciding the question on pre-Hague Rules law in Great Britain and the
second an American decision which does not refer to the Hague Rules and which
erroneously draws from St. John’s N.F.47 that a bill of lading containing a
general clause permitting deck carriage but no statement of deck carriage is not
a clean bill of lading. The United States Supreme Court in St. John’s N.F. took
the opposite position, holding that the contract was the freight reservation and
the bill of lading taken together, and although the freight reservation con-
tained a general deck carriage clause there was a clean bill of lading because
no statement appeared on the face of the bill of lading. In Delawanna, Inc. v.
Blidendijk52 it was held that: “When a bill of lading expressly provides that
cargo may be stowed on deck or under deck, the holder of a ‘clean’ bill of
lading may not complain of damage caused by the goods being carried on
deck.” Here again the meaning of the Supreme Court in St. John’s N.F. was
confused.
American Tobacco v. Katingo Hadjipatera53 is indirectly to the same effect.
All four above-mentioned judgments I believe are erroneous for the four reasons
enumerated above. To consider a general deck carriage clause as valid without
a statement on the bill of lading is in effect to sanction a non-responsibility
clause. Such a clause is not beneficial to the shipping industry or commerce in
general while the carrier can perfectly protect himself by stating on the face
of the bill of lading that a cargo is carried on deck. Carriers are reluctant to
so clause the face of their bills of lading because banks will not discount them.
The clean bill of lading with a general liberty clause among the many clauses
is usually an intentional dissimulation. This practice should not be protected
by the Courts who should follow the decision of Woolsey, J. in Italian Importing
Co. v. Navigaione (The Carso). 5 There it was held that: “A bill of lading is
a document of dignity and Courts should do everything in their power to pre-
serve its integrity in international trade, for there especially confidence is of
the essence.”
50(1921] 3 KB 473i (1921) 8 Lloyd’s 446 and 497.
51t1938] A.M.C. 1220.
52[1950] A.M.C. 1235.
51[1949] A.M.C. 49.
54(1930) 38 Lloyd’s 22, at p. 30, (1930] A.M.C. 1743, at p. 1758.
CASE and COMMENT
