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“HDI et al say that the Pretoria had been loaded many times before without damage being caused. The shipowner presented his vessel at APM’s quay to be loaded with containers by a crane. The manner of loading was usual. HDI et al ackowledge that loading operations at a terminal are risk inherent and should be carried out in a proper and careful manner. By presenting its vessel to APM for loading and discharging operations, the shipowner must be deemed to have taken note of these risks.
In these circumstances and considering the legal framework, there is no reason to find that APM is liable for damage caused to the vessel during the loading unless it can be said that APM or its subordinates did failed to carry out the operations in the careful manner that could reasonably be required of it. See Dutch Supreme Court 1953, NJ 1953, 791 “Nicolaos Patras” and Court of Rotterdam 19 August 2009, LJN: BJ5767 “Allegonda”.
In this case, no facts have been proven that can lead to the conclusion that APM or its subordinates failed to exercise the reasonably required care. HDI’s claim is therefore dismissed.”
In the “Nicolas Pateras” case, a claim was raised in respect of damages which were inherent to the method of discharging bulk carriers. When discharging bulk carriers, certain damages are inevitable and this risk is accepted by the Owners of such vessels. It does not follow that the same risks are accepted by Owners of purpose built container vessels whose vessels are loaded or discharged with purpose built container cranes and spreaders. The application of the “Niclolas Pateras” test in the “Pretoria” seems, therefore, inappropriate.
Further, in the case of the “Pretoria”, the Court of Rotterdam did not apply the rule that was formulated by the Court of Appeal of The Hague in is its judgment of 17 December 1991 (SES 1992/64) regarding the “Puffy”. That case concerned damage caused to the hold of a bulk carrier during discharging with a large grab. In that case, the burden was placed on the stevedores to prove that, when using the chosen method of discharging and exercising normal care during the discharging activities, it would be practically impossible to avoid causing damage to the Vessel.
The “Allegonda” case (referred to above) was also a case in which the stevedores were held not liable for damage that the vessel (albeit not a purpose-built container vessel) sustained when containers were being loaded into a it with the use of a container spreader.
From the “Pretoria” and the “Allegonda” cases, it would appear that the Court of Rotterdam has recently started to apply a policy that makes it more difficult for Owners to recover damages caused to their vessels by stevedores during cargo operations.