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'''BILLS OF LADING: INCORPORATION OF CHARTERPARTY TERMS PROVIDING THAT CHARTERERS WERE RESPONSIBLE FOR STOWAGE: WHETHER OWNERS COULD RELY ON THAT CLAUSE AS DEFENCE TO CLAIM BY RECEIVERS FOR CARGO DAMAGE CAUSED BY BAD STOWAGE'''
Turlough Stone, instructed by Gately Gateley LLP, for the Claimant Cargo Receivers
Neil Henderson, instructed by Hill Dickinson LLP, for the Defendant Owners
Article III Rule 2 of the Hague Rules provides that “Subject to the provisions of Article 4, the carrier shall properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried”.
Clause 5 of the incorporated charterparty provided that the “The cargo shall be brought into the holds, loaded, stowed and/or trimmed, tallied, lashed and/or secured by the Charterers[emphasis added], free of any risk, liability and expense whatsoever to the Owners”. The cargo had in fact been loaded and stowed in some haste by stevedores appointed by the Charterers.
The Admiralty Registrar held that the damage was due to poor stowage in that locking coils were not used. This meant that the cargo had been able to shift whilst the vessel was on passage across the Indian Ocean in monsoon conditions. He further held that the vessel was not unseaworthy because of a lack of lashing equipment, nor had the crew failed properly to care for the cargo during the voyage.
The Receivers argued (paragraphs 52(b) and 73 of the judgment) that clause 5 was not incorporated because:
(i) the clause – in referring to the Charterers - did not make sense in the context of a bill of lading which regulated the rights of the parties to that contract of carriage, namely, the Receivers and the Owners;
Although a degree of verbal manipulation was permissible to enable charterparty clauses to be incorporated into bills of lading, that was so only where the parties had intended them to apply or where it made commercial sense (The Miramar [1984] AC 676; The Spiros C [2000] 2 Lloyd’s Rep. 319;
