Arnold Van Steenderen, Van Steenderen Mainport Lawyers, Rotterdam
Ref: District Court of Rotterdam judgment dated 10 October 2018; Etablissements Bargibant S.A., and Chubb Insurance Company of Australia Ltd v. Seatrade Group N.V. and Baltic Klipper Shipping Company N.V.
This case involved the maritime transport of a reefer container with frozen products from Radicatel (France) to Noumea (New Caledonia) with the MV ‘Baltic Klipper’, owned by the shipping company Baltic Klipper Shipping Company N.V. A bill of lading for this transport is issued, drawn up on the Seatrade form and signed by Sea Shipping Services ‘as agent to carrier’ ‘for/by the Master’, containing an ‘Identity of Carrier-clause’. The bill of lading mentions ‘Reefer settings -20ºC Ventilation closed Floor drains open’ as instruction. The reefer container was loaded onto the ‘Baltic Klipper’ on or around 8 October 2014 and on 10 October 2014 it became clear that the reefer container did no longer function as a result of a defective controller unit. On 19 October 2014, during the passage of the Panama Canal, the controller was replaced after which the reefer container functioned again. Bargibant and others file a claim against Baltic Klipper Shipping (‘Seatrade and Others’) for the cargo damage that was discovered on arrival in Noumea. In the interlocutory judgment (S&S 2018/2), Bargibant c.s. was ordered to provide proof that the frozen products have been received by the carrier, in a transportable condition. It was further decided that parties may, after the submission of proof, make submissions about the content of the law of New Caledonia with regard to passive legitimation and the validity of the Identity of Carrier-clause.
The Decision
Under Dutch law, the standard of proof shall be ‘a reasonable degree of certainty’. This should include a probability percentage of at least 75%. Because upon arrival of the frozen products in New Caledonia it was not found that they were already spoiled – see the passage in the survey report submitted by Seatrade et al: ‘The reefer container was unloaded at Noumea on Wednesday November 5, 2014 and no unpleasant odour was noticed’. It can therefore be said the goods were fit for transport in this specific case if (a) the frozen products were sufficiently frozen in terms of temperature at the time they were received for transport by or on behalf of the carrier and (b) these products were not covered by ice crystals on the outside at that time. After all, such ice crystals are a sign that products have been fully or partially thawed in the meantime.
From the documents submitted by Bargibant et al. there are many indications that the frozen products were sufficiently frozen as referred to above under (a) in the weeks prior to receiving them for transport, while there are no indications to the contrary. Moreover, there is nothing to indicate that the frozen products at the time of receipt were covered with ice crystals as referred to above under (b). In view of the above mentioned standard of proof, Bargibant et al. have therefore succeeded in their proof that the frozen products have been received by the carrier in a transportable condition.
New Caledonia is an overseas (d’outre mer) territory of France (with its own state/constitution (statute)). In principle, the same civil and commercial law applies in this French Overseas Territory as in France. Under French law, an Identity of Carrier-clause in the bill of lading, if it has already been included in the bill of lading with justification, has no effect because this clause does not mention the (shipowner as) carrier by name. Pursuant to art. 150 of the Dutch Code of Civil Procedure, Bargibant c.s. has the duty to assert and the burden of proof of facts and circumstances from which it must follow that, according to the law of New Caledonia, Baltic Klipper Shipping, alongside Seatrade, is to be regarded as a carrier. It was therefore up to Bargibant et al to establish facts and circumstances from which it must follow that Baltic Klipper Shipping, despite the fact that this in no way follows from (the text of) the bill of lading, under the law of New Caledonia (read: under French law) – in addition to Seatrade – has to be regarded as a carrier. Bargibant c.s. has failed to comply with this obligation to make a statement, as they have not stated any other circumstances than the existence of the present Identity or Carrier-clause.
Now that it has been established that the carrier has taken delivery of the frozen products in a transportable condition and that the shipment has been unloaded in a damaged condition in the port of Noumea, it follows that this damage occurred during the transport period. Pursuant to the Hague-Visby Rules (HVR) applicable in this case, the carrier is in principle liable for this damage.
Pursuant to art. 3 para 1 sub a-c HVR the carrier is obliged to exercise reasonable care for the seaworthiness and the cargo worthiness of the ship before and at the commencement of the voyage. The HVR have the system of ‘overriding obligations’. A consequence of this system is that violation by the carrier of his aforementioned obligation to use reasonable care for the seaworthiness and/or the cargo worthiness of the ship impedes a successful appeal by the carrier on the grounds for exclusion of liability of art. 4 HVR.
Bargibant c.s. hold the carrier in this matter responsible for the malfunctioning of the reefer container on board of the ‘Baltic Klipper’ during her trip from France to New Caledonia. Whether in the present case the container should be regarded as part of the ship, and therefore not as packaging for the cargo, and to ensure the proper functioning of the container is therefore part of the above-mentioned sea and cargo liability obligation of art. 3 HVR, depends on the answer to the question whether the container has been made available by the carrier to the shipper. See HR 1 February 2008, S&S 2008/42 (‘NDS Provider’). Because the reefer container in the present case has been made available by the carrier, Seatrade has the obligation to make a statement and, if disputed by the plaintiffs, the burden of proof of facts and circumstances from which it must follow that it has used reasonable care for the proper functioning of the reefer container before and at the start of the voyage.
Seatrade c.s have brought a so-called ‘pre inspection report’ before the courts, from which it appears that the container functioned well on the inspection date. However, it follows from the inspection protocol also submitted by Seatrade that the inspection report was only valid for 30 days. This inspection report was no longer valid just before and at the start of the current sea voyage. To that extent, Seatrade et al. did not comply with their ‘reasonable care’. This does not alter the fact that, as follows from the assertions of Seatrade c.s., the reefer container would not have been used in the period between the inspection and the start of the present sea voyage, nor that the inspection protocol would only contain recommendations, now that it is generally known that the sea voyage from France to New Caledonia takes several weeks. Seatrade et al. did not say anything material about the care they have excercised for the reefer container from reception to loading.
It follows from the above that it has not been established that the carrier has used reasonable care for the proper functioning of the container.
Our comments
Already in 2008 the Dutch Supreme court in The ‘NDS Provider’ decided the issue of a carrier’s liability for a container the carrier had put at the shippers disposal.
The Supreme Court held: “the scope of the duty of care of the carrier following from Article 3 paragraph 1, introductory words and under a-c, HVR is that the ship must protect the cargo against the dangers of the sea, so that it is suitable for transporting the cargo, also referred to as the ‘cargo worthiness’ or cargo suitability of the ship. This means that the carrier must also ensure that containers made available by him especially for transport on board the ship are suitable for transporting the cargo placed therein. This duty of care means that, just as applies to the ship’s hold to the same extent, no water can penetrate those containers. Such an interpretation also argues in favour of the fact that in Article 16, paragraph 1, opening words and under c, of the United Nations Draft Convention on the carriage of goods (wholly or partly) (by sea), version 13 February 2007, corresponding to Article 3, paragraph 1, opening words and under c of the HVR, which was drawn up with a view to eventually replacing the HVR, it is explicitly stipulated that the parts of the ship to which the duty of care of the carrier extends also include the containers made available by the carrier. By making containers available for the transport of the cargo in the present case in which, as a result of corrosion, holes had arisen as a result of which seawater could easily penetrate the containers during the transport, NDAL ( the carrier) has neglected the duty of care resting on it as a shipping carrier. The provisions of Art. 3 para. 8 and Art. 4 para. 1 HVR imply that NDAL cannot successfully invoke the liberating causes listed in Art. 4 para. 2 HVR or the exemption clause in the bill of lading in order to release itself from the resulting liability.”