Court of Appeal, Singapore
Yong Pung How CJ, Chao Hick Tin JA, Tan Lee Meng J
24 September 2003; 21 November 2003
KEYWORDS
Bill of Lading – Deck Cargo – Carriage of Goods on Deck under Common Law – Hage-Visby Rules not apply – Absolute Obligation to provide Seaworthy Ship – Exemption by by specifically referenced Exclusion Clause, and not by generally worded Exclusion Clause – Obligation York Antwerp Rule, Rule D, as interpreted by Goulandris Brothers v B Goldman & Sons – Actionable Fault test – Shipowner’s entitlement to General Average Contribution – Court criticised The Imrov and refused to follow
FACTS AND DECISION
Cargoes of logs were carried by a shipowner on deck, under a few bills of lading. The agreement was to carry on deck. Hence, the Hague-Visby Rules did not apply and the carriage was subject to common law. The bills of lading provided that the cargoes were carried on deck ‘at [s]hipper’s risk; the [c]arrier not being responsible for loss or damage howsoever arising [or howsoever caused]’.
The ship was unseaworthy at the outset of the voyage and broke-down during the voyage. She was towed to the discharge port. The shipowner claimed general average contribution from the cargo owners, in respect of the towage costs. Hence, the action by the shipowner against cargo owners.
Under the York Antwerp Rules, which was applicable to this case – Rule D as interpreted by Goulandris Brothers Ltd v B Goldman & Sons Ltd [1957] 3 WLR 596 – if the general average arose due to an ‘actionable fault’ of the shipowner, then the shipowner will not be entitled to general average contribution. In this case, whether the shipowner committed an actionable fault dependent on 2 things. One, the seaworthiness of the ship and another the exemption clause.
At common law, the shipowner’s liability to provide a seaworthy ship at the beginning of the voyage is an absolute one, that can only be exempted by specific reference and by any general exclusion clause. It was the finding at the trial that the ship was unseaworthy at the outset of the voyage. As the exclusion clause here was not one specifically referring to the seaworthiness-obligation, the court held that it did not relief the owner from liability. Hence, there was an actionable fault on the part of the shipowner and the court disallowed the general average claim of the shipowner. In arriving at this conclusion, the court critisised The Imrov [1999] 1 All ER (Comm) 724, which held that a general exclusion clause exempted the shipowner from liability for seaworthiness, as being out on line with authorities and refused to follow it.
OBSERVATION
The York Antwerp Rules are normally voluntarily incorporated into bills of lading, as seemingly was so in this case. The Rule D, in the latest 2016 version of the Rules, reads: “Rights to contribution in general average shall not be affected, though the event which gave rise to the sacrifice or expenditure may have been due to the fault of one of the parties to the common maritime adventure, but this shall not prejudice any remedies or defences which may be open against or to that party in respect of such fault.” The rule was the same in its predecessors 2004 and 1994 versions, save for the unlined part (“common maritime”).
Overview by ARUN KASI