Seafood Imports Pty Ltd v ANL Singapore Pte Ltd

Seafood Imports Pty Ltd v ANL Singapore Pte Ltd - [2010] FCA 702 - FCA 2010 case summary — Zoe

[7]

The container was carried on board the ship pursuant to a slot charter arrangement between the defendant and China Shipping Container Lines (Hong Kong) Co Ltd ("China Shipping") which was the operator of the ship for the voyage in question. 2 It is common ground that the contract for the carriage of the goods is governed by the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading at Brussels, August 25, 1924 as amended by a Protocol to Amend the International Convention for the Unification of Certain Rules Relating to Bills of Lading signed at Brussels December 21, 1979 ("the Hague-Visby Rules"). 3 On behalf of the plaintiff, evidence was adduced on affidavit from Mr Yoshihisa Munemasa, the manager of the cold store in Tokyo, Japan where the goods had been kept immediately before being stowed in the container for shipment to Melbourne. On 1 May 2009, after receiving submissions from Counsel, I ruled Mr Munemasa's affidavit inadmissible on the ground that the plaintiff had not discharged the onus imposed by ss 63 and 64 of the Evidence Act 1995 (Cth) of showing that Mr Munemasa was not available to give evidence or that it would not be reasonably practicable to call him to give evidence. My reasons for that ruling have been reproduced sub nom. Seafood Imports Pty Ltd v ANL Singapore Pte Ltd (No 1) [2009] FCA 435. Exhibited to Mr Munemasa's affidavit were records showing the receipt of the goods into the cold store on 1 November 2005 and a second record showing the despatch of the goods from the cold store on 4 November 2005 for loading onto the ship. The ruling noted above did not preclude the plaintiff from adducing those records into evidence as business records. 4 The incoming report was apparently issued on 2 November 2005 and recorded the receipt into the cold store on the previous day, 1 November 2005 of the goods comprising the following types and in the following quantities; (a) 150 cartons (1,500 kgs) Snow Crab Claws;

[22]

12 The yard monitoring report to which I have referred at [11] above shows that the container was noted as having a temperature of -5º on 4 November 2005 and it thereafter returned to a consistent -20º on each of 5, 6 and 7 November. According to Mr Brown, those recorded temperatures were of RA and were consistent with the container having been off power whilst in transit from the cold store to the container yard. By reference to the event log, Mr Brown established that power had been reconnected to the container at 0729 hours GMT on 4 November2005which would have been 1629 hours in Japan. It is likely, Mr Brown believes, that the reading of -5º RA was taken at or about the time when power was reconnected to the container. 13 The event log records apparently normal movements between operating ("cool") and defrost mode between 4 November and 26 November 2005. At 1810 hours on the latter date, the event log shows the container as having changed into defrost mode. Thereafter from 2044 hours the event log shows that a series of alarms had been activated with no record of a return to normal operating or defrost mode. At 2353 hours on 29 November the event log records "Auto 1 Pre-Trip Initiated by Keypad Operating Mode Changed to Pretrip". Although the initiation of the Pre-Trip inspection revealed that certain tests were "Passed", the event log continued to record from 2355 hours on 29 November the activation of various alarms until 0439 hours on 2 December 2005 when it recorded "Power Down (Battery Present) Operating Mode changed to Power Off". No further event was recorded until 0838 hours on 2 December 2005 when "Controller Alarms: 56" were activated indicating "Primary Return Failure." Within two minutes, it is recorded, "Operating Mode Changed to Cool Reduced" and then to "Cool Max". However, from 0900 hours and at hourly intervals until 1300 hours the event log recorded "Controller Alarms: 56 - Primary Return Failure". Thereafter the remaining entries in the event log for 2 December 2005 are as follows: 14:31 Defrost Terminated Due to Normal Operation 14:39 No Active Controller Alarms 14:40 Operating Mode Changed to Cool Reduced 14:41 Operating Mode Changed to Cool Max 20:43 Defrost Initiated By Timer 20:43 Operating Mode Changed to Defrost 21:15 Defrost Terminated Due to Normal Operation 21:24 Operating Mode Changed to Cool Reduced 21:25 Operating Mode Changed to Cool Max

[23]

14 An expert report on the operation of the container was furnished to the defendant by Mr Kjell-Arne Andersson who has had extensive experience as a marine engineer including ten years at sea. Subsequently he established his own firm as a pioneer in the provision and servicing of ship refrigeration systems, ship automation and control systems and refrigerated containers. The firm's business included the development and manufacture of refrigerated and dry cargo containers and it was the Victorian agent servicing containers, selling spare parts and carrying out repairs under warranty for many leading makers of refrigerated containers, including Carrier, Thermo King and Daikin. After selling the business in 1986 Mr Andersson acted as a designer and consultant in relation to containerised generating plants, refrigerated containers and the repair and servicing of propeller and rudder systems. 15 In his principal report dated 17 December 2008, Mr Andersson examined the sensor log and event log for the container during the period from 1 October to 25 October 2005, ie, before the goods were stuffed into the container and before the ship commenced the voyage from Yokohama to Melbourne. He noted that, at 1426 hours on 8 October 2005 and again at 2219 hours on 13 October, the event log showed that the unit was momentarily powered down and powered on again. After observing that there was nothing in the sensor log or the event log to indicate whether that momentary switching off and switching on was done by an operator or was due to a malfunction in the controller, he preferred the latter inference as neither the sensor log nor the event log indicated any reason for it having been done by an operator. 16 Mr Andersson also detected in the sensor log for 8 October 2005 a temperature of -21º Celsius for both SA and RA whereas the unit had been set to operate at -18º Celsius. He characterised this as an abnormality which persisted for almost one hour while the unit was "stuck" on operating mode "Cool Max" causing it to overshoot the set temperature by -3º until the mode changed to operating mode "Cool Reduced". Mr Andersson ascribed this to a failure due to a defect in the software version fitted to the controller which caused it to become blocked or "stuck" in a particular mode. 17 In the sensor report for 13 October, Mr Andersson detected a reading at 0300 hours for the Relative Humidity sensor of 0.03% whereas it should have been between 50% and 60%. He suggested this abnormality was due to incompatibility between the container's controller and the software version with which it had been fitted. 18 Mr Andersson also discerned from the event log a breakage of the "control fused 24V" at 11.51 hours on 7 November 2005 for which no reason was indicated in the event log. He also noted that the temperature recordings for 1100 hours on 13 November 2005 are completely missing. As well, a momentary switching on and off of power occurred at 11.39 hours on the same day at 2206 hours on 21 November and again at 2313 hours on 25 November, similar to that which Mr Andersson had noted for 8 and 13 October as described at [15] above. He attributed both events on 13 November and that of 21 November and 25 November to a malfunctioning of the controller of a kind which later prompted its manufacturer, Carrier Corporation, to recall it and other controllers in the same production run. 19 Between 22 and 25 November 2005, according to Mr Andersson, the unit operated normally except that no defrost cycles at all were recorded on any of 23, 24 or 25 November. That, he said, was a further indication that the controller was not operating normally as no reason for the absence of defrost cycles was disclosed by the sensor log or the event log. 20 In respect of the matters revealed by the event log for 26 November described at [13] above, Mr Andersson commented in his report "the defrost is 'stuck' and has not terminated. At 2400 [hours] the defrost has been on for 5h 50 min." He regarded that as precisely attributable to the defect which Carrier Corporation had advised container owners, including the defendant "can cause the controller to become blocked in the function/running mode during processes like full cooling or defrosting etc, clearly with serious effects on cargo"; see [49] below. 21 As to the period between 27 and 29 November, the observations in section 4 of Mr Andersson's report and his comments on what he observed are as follows; (m) 27 Nov. 2005. 00:00 Defrost Initiated - Active from previous day 00:00 to 24:00. Controller Alarms 56 and DataCorder Alarm 71 recorded every hour. Comment: The defrost is still 'stuck' and has not terminated. At 24:00 the defrost has been on for 29 h 50 min.

[39]

30 Under cross-examination, Mr Andersson accepted that the same malfunction, the unit becoming stuck in defrost mode, had occurred on the ship and while the container was in the P&O Ports terminal. He also accepted that the controller may have behaved differently in the two situations and sought to explain the record of temperatures in the Reefer Log described at [9] above by suggesting that an operator on the ship had pushed a button to read the SA and RA temperatures and had averaged the two. However, he acknowledged that it would be good practice to record each of the data points used in arriving at an average. 31 Mr Andersson also accepted that a container stuffed with hard frozen seafood would normally remain in defrost mode for between 20 and 35 minutes. He acknowledged that it is good practice, if a container is in defrost mode at one inspection, to check within the next 12 hours to see whether it has normally reverted to "cool mode" or is still in defrost. However, he cautioned, if a controller were malfunctioning and improperly in defrost mode, a crew member might not recognise that it was in that mode. 32 In response to a suggestion by Mr Brown that temperatures in whole numbers were shown in the container's display panel when the controller had failed and to one decimal point when it was functioning correctly, Mr Andersson said that he did not know. Nor could he say whether, when the unit was stuck in defrost, the temperature displays for RA and SA were also stuck or frozen. In his opinion, it could not be known what lights on the display panel were on or off while the unit was malfunctioning. 33 Mr Andersson also accepted, when further cross-examined, that, when the unit was in cool mode, the compressor would have been audible to a crew member and, if the compressor had not run for 77 hours a crew member should have done something about it, at least by turning the unit off and on again in the hope that it would return to full cool mode. If that were unsuccessful, further investigation would be required. The crew member should have returned after an hour to check that the temperature was down to -20ºCelsius and the unit was running correctly. On the assumption that the defrost light had remained on while the unit was stuck in defrost mode for 77 hours, Mr Andersson accepted that it was intolerable for nothing to have been done about it. He also accepted that it is worse for frozen cargo if a container is stuck in defrost mode than if it is merely off power. 34 Mr Andersson acknowledged to Ms Hartley of Counsel for the plaintiff that his opinion depended on the container's having been afflicted by abnormalities other than merely being stuck in defrost. 35 Mr Darren Southcombe, a refrigeration technician with wide experience in maintaining and servicing refrigerated containers, who was called on behalf of the plaintiff, gave evidence which largely corroborated that of Mr Brown. In respect of the matters recorded in the events log for 29 November 2005, Mr Southcombe deposed; 3 As appears from the Event Logger produced on behalf of the defendant, a pre-trip inspection, coded AUTO1 was initiated by key pad at 2353 on 29 November 2005. 4 The only way in which a pre-trip inspection can be initiated is via a modem or by the key pad which is located next to the control box door and slightly adjacent to the display module. It is apparent that in this case, no modem activation was used, and that a member of the crew used the key pad to initiate the pre-trip. 5 The Event Logger records that as part of the pre-trip inspection on 29 November 2005, the heaters were tested as was the condenser fan. Both the heaters and condenser passed their tests, the unit was powered down and powered up again. Once this occurred, the active alarms which are referred to in the Event Logger must have been instantly displayed, as checking of the display is an integral part of the pre-trip inspection. As the condenser fan is not able to run when the unit is in a defrost mode, it must be assumed that at the time of the pre-trip inspection, the unit was not then in defrost mode. As there is absolutely no logical basis for the initiation of a pre-trip inspection mid-voyage, it is clear to me that there was evidence of malfunction which led to the commencement of the pre-trip inspection. 6 After the AUTO1 test was terminated, operation was in 'cool mode' for approximately 7 hours, and the temperature moved towards the set point quite rapidly, with the return air (RA) reading dropping from +25 degrees C to -13 degrees C at 0600 on 30 November 2005. At 0628, the operating mode was changed (automatically) to defrost mode, where it remained until the unit was powered down and discharged on 2 December 2005. There is no evidence in the Event Logger to show that any intervention took place during that period.

[42]

37 Under cross-examination, Mr Southcombe acknowledged that, at the time when he made his first witness statement, he had not seen the Reefer Log described at [9] above or the P & O monitoring history noted at [42] below. Nor had he seen the pre-trip report which had been prepared by Reefer Services in Japan before the goods were stuffed into the container. He was unable to say what version of software had been installed in the container's controller before the November 2005 voyage. In Mr Southcombe's experience, the normal duration of a defrost phase for a refrigerated container is from 10 to 30 minutes depending on the nature of the cargo. On 5 December 2005, he concluded, the container had been in defrost mode for 3 hours and 16 minutes. 38 The records in the event log suggest that the container behaved normally in both operating mode and defrost mode throughout 3 and 4 December 2005. On 5 December 2005 the event log recorded at 0522 hours "Defrost Initiated by Timer. Operating Mode Changed to Defrost." Thereafter the remainder of the entries for 5 December 2005 were recorded as follows: 07:22 Controller Alarms: 67 - Humidity Sensor Failure 08:00 Controller Alarms: 56 - Primary Return Failure, 67 - Humidity Sensor 08:03 DataCorder Alarms: 71 - Record Return Temp OOR 09:00 Controller Alarms: 56 - Primary Return Failure 09:00 DataCorder Alarms: 71 - Record Return Temp OOR 10:00 Controller Alarms: 56 - Primary Return Failure 10:00 DataCorder Alarms: 71 - Record Return Temp OOR 11:00 Controller Alarms: 56 - Primary Return Failure 11:00 DataCorder Alarms: 71 - Record Return Temp OOR 12:00 DataCorder Alarms: 71 - Record Return Temp OOR 12:00 Controller Alarms: 56 - Primary Return Failure 13:00 Controller Alarms: 56 - Primary Return Failure 13:00 DataCorder Alarms: 71 - Record Return Temp OOR 14:00 Controller Alarms: 56 - Primary Return Failure 14:00 DataCorder Alarms: 71 - Record Return Temp OOR 15:00 Controller Alarms: 56 - Primary Return Failure 15:00 DataCorder Alarms: 71 - Record Return Temp OOR 16:00 Controller Alarms: 56 - Primary Return Failure 16:00 DataCorder Alarms: 71 - Record Return Temp OOR 17:00 Controller Alarms: 56 - Primary Return Failure 17:00 DataCorder Alarms: 71 - Record Return Temp OOR 17:47 Power Down (Battery Present) 17:47 Operating Mode Changed to Power Off

[43]

No event data were recorded for 6 December 2005. 39 Mr Brown's belief is that the display on the container showed an RA temperature of -20º when it first went into prolonged defrost but would not have shown that temperature when released from defrost mode after three days of continuous defrosting. 40 Mr Brown next discerned from the event log that the container failed again at 0700 hours on 30 November when the sensor log showed an RA temperature of -5º. 41 The ship berthed at the P & O Ports terminal in Melbourne on 2 December 2005. After a delivery order for the container was collected, also on 2 December 2005, from ANL Container Line Pty Ltd, the representative of the defendant in Melbourne, the container was collected from the P & O Ports terminal by Coynes Transport Industries, a wharf carrier contracted to Jackson Global Logistics, a freight forwarder retained by the plaintiff. That collection occurred at some time between 7.43 am and 8.14 am on Tuesday, 6 December 2005. 42 From the time when the container was discharged into the container terminal operated by P & O Ports at Melbourne, a computer generated Reefer Monitoring History was maintained in respect of the container until it went off-power at 0752 hours Melbourne time, presumably upon being delivered to Coynes Transport Industries at 0814 hours as described at [41] above. The Reefer Monitoring History contains the following entries: Action Date/time Container Set Point Temp Read Temp ONPOWER 02/12/05 19:46 CGMU2821902 -20 -1 INSP TEMP 03/12/05 08:39 CGMU2821902 -20 -12 INSP TEMP 03/12/05 18:15 CGMU2821902 -20 -19 INSP TEMP 04/12/05 08:26 CGMU2821902 -20 -20 INSP TEMP 04/12/05 18:43 CGMU2821902 -20 -20 INSP TEMP 05/12/0508:37 CGMU2821902 -20 -20 INSP TEMP 05/12/05 19:38 CGMU2821902 -20 -20 OFFPOWER 06/12/05 04:50 CGMU2821902 -20 -20 ONPOWER 06/12/05 05:57 CGMU2821902 -20 -20 OFFPOWER 06/12/05 07:52 CGMU2821902 -20 -20

[77]

(b) Article III r2 60 Regrettably, the Court has been left to draw inferences from a body of circumstantial evidence in order to make findings about what steps the defendant took to properly and carefully carry, keep and care for the container during the voyage. There is no direct evidence from any person who was on board the ship during the voyage as to how frequently temperature readings were taken from the container or what those readings revealed. It is not possible to find with confidence even that temperature readings were taken twice daily as the evidence suggests was required to conform with accepted good practice. Nor does it appear that whatever readings were taken were recorded in accordance with what Mr Andersson and Mr Grier acknowledged was accepted good practice. 61 The only record of temperatures registered by the container during the voyage is the Reefer Log described at [9] above. That was apparently produced from the ship's records by Captain Bellotti who, it seems, was the master of the ship when the Reefer Log was produced or discovered but was not the master or on board during the voyage in November 2005. On behalf of the defendant two suggestions have been ventured as to why the Reefer Log contained only the entries which it did. In his email of 28 March 2007, Captain Bellotti suggested that the copy supplied was an "Owner's form" to which only afternoon readings were transcribed. That derives some support from a printed note at the foot of the Reefer Log form "Remarks: only to be used in case no charterer's form available." However, the form of Reefer Log produced by Captain Bellotti appears to have space for entering only one temperature for each day. In a later email of 5 April 2007, Captain Bellotti made this alternative suggestion; Daily readings twice a day are entered on printed computer reefer form by crew members reading it. As there are no CS form only owner's form is filled with average daily reading. If in times of reading unit was defrosting, then electrician takes a reading after defrosting period, and this one is entered in daily form. Rough forms are generally kept for five years in archive, unless they were torn, and at the end, unreadable (am missing these for voyage).

[79]

Latent defect 64 Historically, latent defect was an exception to the implied warranty of seaworthiness and related to defects in the hull of the vessel or its tackle or machinery whereas, according to Carver on Carriage By Sea, 13th edn at 382 [541], paragraphs (m), (n) and (o) of Article IV r 2 "apparently refer to inherent defect or vice and insufficiency of packing or marks of the goods." A footnote to the same passage in that work suggests; "But para (p) may include latent defects in other cargo or in shore tackle." As I understand it, the container into which the goods were packed was made available by the defendant and was at all times from reception at the terminal in Yokohama until its discharge from the P&O Ports terminal in Melbourne under the control of the defendant or its agents. I have therefore proceeded on the basis that the exception in par (p) is available to the defendant if the loss to the goods arose or resulted from a latent defect in the container, being one that could not have been discovered using reasonable methods by a person of competent skill using ordinary care; see Minister of Materials v Wold SS Co [1952] 1 Lloyds Rep. 485. 65 I am satisfied on the balance of probabilities that the damage to the goods in the present case arose or resulted principally from the container's having been stuck in defrost mode for an extended period between 27 and 29 November 2005. It is likely that the propensity of the container to become stuck in that way was due to the incompatibility between the container's controller and the software with which it was fitted. However, as already indicated, it was not that propensity which was the immediate cause of the plaintiff's loss but the continuous running of the container in defrost mode for more than 77 hours. That was an event which could have been detected and rectified had the defendant's employees and agents carried out an appropriate monitoring and inspection of the container and made proper records, including notations of any apparent anomalies which might require further investigation or rectification. It was the departure of the master and crew of the ship from accepted good practice in those respects which, I consider, amounted to a failure to exercise due diligence properly and carefully to carry, keep and care for the goods in the defendant's container. I shall indicate briefly my reasons for reaching that conclusion. 66 I find it more likely than not that either or both "defrost" and "heater" lights were illuminated on the container's display panel for at least part of the extended time during which the container was in continuous defrost mode. I have not overlooked Mr Andersson's opinion noted at [32] above that it could not be known what lights on the display panel were on and off while the unit was malfunctioning. However, I prefer the inference from relevant available evidence that, for at least part of the time while the unit was stuck in defrost, lights or other alarms were visible which should have alerted a reasonably diligent crew member to that fact or put him or her on enquiry whether the unit was excessively defrosting. 67 There is no direct evidence of what the temperature display module on the container showed after the unit became stuck in display mode. The expert witnesses, Mr Brown, Mr Southcombe and Mr Andersson differed in the inferences on this issue which they preferred to draw from the known facts which appeared to point in different directions. After some hesitation, Mr Andersson was inclined to the view that the temperature display simultaneously became stuck or frozen when the unit became stuck in defrost mode. However, he was unable to commit himself to whether the presumptively frozen temperature display showed a temperature in degrees expressed as a whole number or to one or more decimal points. Mr Brown believed that, from the time the unit became stuck in defrost mode, the temperature display was also stuck on a single temperature but did not express a view as to whether that would have been displayed as a whole number or to one or more decimal points. His opinion was that whatever temperature on which the display module was stuck would have been within the range from -20ºC to +1.4ºC. Mr Southcombe's views on this issue were similar to those of Mr Brown. 68 I am disposed to accept on the preponderance of expert opinion, that the temperature shown on the display module remained constant from the time when the container became stuck in defrost mode at 1810 hours on 26 November 2005 until it ceased malfunctioning at 2356 hours on 29 November 2005. That means that the temperatures recorded in the Reefer Log for that period, whether they represented a calculated average, or purported to be a transcription of an actual entry made by a crew member, could not have been derived from actual ocular observation of the display. At best for the responsible crew member or members involved, they were entered recklessly without caring whether they had any basis in fact. Moreover, if the temperature shown by the display had been constant throughout the period during which the unit was stuck in defrost, that would have been so markedly in contrast to the variable temperatures observed during normal operation that it should have alerted the relevant crew member or members to the likelihood of a malfunction. 69 I make a similar finding in respect of the defrost light which, I believe, on the basis of the evidence of Mr Brown and Mr Southcombe, was probably showing on the unit's display panel for the whole of the time during which the unit was stuck in defrost mode. That abnormality should have alerted the crew member who saw it, or the electrician mentioned in Captain Bellotti's email of 5 April 2007 quoted at [61] above to the fact that heat was continuously being applied to the container. That should have prompted a properly trained and responsible crew member to rectify the problem. 70 It is more probable than not that while the unit was stuck in defrost mode, the condenser fan was not running and so would not have been audible to a crew member monitoring the container. I accept the existence of the "possibility" to which Mr Andersson adverted in the portion of his evidence summarised at [27] above: ie, that the condenser fan motor could have been activated and continued to run audibly while the unit was stuck in defrost. However, I regard that hypothesis as less likely than that the condenser fan behaved normally and did not run during defrost, even one prolonged for over 77 hours as a result of an incompatibility between the controller and the software version then used on it. The corollary to the proposition accepted by Mr Andersson as described at [33] above, is that a crew member failing, on several successive visits to the container, to hear the condenser fan running, should have done something about it. 71 I do not accept that the various "abnormalities" which Mr Andersson discerned from the sensor log or the event log of the container during the pre-voyage period in October 2005 and later while the container was concededly functioning normally, support his primary thesis that while the unit was stuck in defrost mode, no alarm, light or temperature reading was visible to alert a crew member to that fact. There is a marked difference of opinion between Mr Andersson on the one hand and Mr Brown and Mr Southcombe as to whether all or any of the matters identified by Mr Andersson were "abnormalities" at all. It is unnecessary for me to resolve this controversy because, even if all the matters in Mr Andersson's catalogue had been attributable to the incompatibility between the container's controller and its software, it is improbable that the fact of the unit's being stuck in defrost mode would have been undetectable by the electrician or some other crew member. 72 Another matter which negatives proper and careful keeping and monitoring of the container during the voyage and the exercise of "due diligence in the sense used in Article IV r 2(p), is the fact that a pre-trip inspection was apparently initiated at 2353 hours on 29 November as disclosed by the event log and noted at [13] of these reasons. I accept it as more probable than not that the initiation of that pre-test inspection was by the human intervention of a crew member using a keypad as Mr Brown suggested. That conclusion is consistent with Captain Bellotti's speculation. 73 It also receives support from an internal email of 3 April 2007 by Mr Alfred Zhang, the claims manger for China Shipping who was then seeking information about the steps which had been taken during the voyage in November 2005 to rectify the defect to which the container was then subject. Mr Zhang wrote; CSCL [China Shipping] must prove that it exercised due diligence in caring for the goods. As attached the Automatically generated Event Log for the container evidences that on 29 November 2005 (whilst the container was on board the vessel) someone manually accessed the reefer's keypad and "Initiated by Keypad" an "Auto PreTrip" of the container which was then "Power[ed] down" and then "Power[ed] up."

[94]

The defendant's "tackle to tackle" argument 76 It was contended on behalf of the defendant that the Hague-Visby Rules apply only in the "tackle to tackle" period from loading to discharge from the ship. Counsel referred in support of that proposition to Nikolay Malakov Shipping Co Ltd v Sea Sapfor Ltd (1998) 44 NSWLR 371. However, that was not a case which concerned a container which had been supplied by the carrier. In Nikolay Malakov Shipping a cargo of timber was damaged after it had been discharged from the ship and placed in open storage at the port of Sydney. In the present case, by contrast, I consider that the liability imposed on the carrier properly and carefully to discharge the goods extended to ensuring that the refrigerated container in which they had been carried did not have a propensity to become stuck in defrost while at the port terminal and before the goods could reasonably be expected to be removed from the container. In my view, the following observations of Devlin J in Pyrene Co Ld v Scindia Navigation Co [1954] 2 QB 402, at 417 directed to the duty properly and carefully to load can be paraphrased to apply with equal force to the corresponding duty to discharge; … The phrase "shall properly and carefully load" may mean that the carrier shall load and that he shall do it properly and carefully: or that he shall do whatever loading he does properly and carefully. The former interpretation perhaps fits the language more closely, but the latter may be more consistent with the object of the rules. Their object as it is put, I think, correctly in Carver's Carriage of Goods by Sea, 9th ed. (1952), p. 186, is to define not the scope of the contract service but the terms on which that service is to be performed. The extent to which the carrier has to undertake the loading of the vessel may depend not only upon different systems of law but upon the custom and practice of the port and the nature of the cargo. It is difficult to believe that the rules were intended to impose a universal rigidity in this respect, or to deny freedom of contract to the carrier. The carrier is practically bound to play some part in the loading and discharging, so that both operations are naturally included in those covered by the contract of carriage. But I see no reason why the rules should not leave the parties free to determine by their own contract the part which each has to play. On this view the whole contract of carriage is subject to the rules, but the extent to which loading and discharging are brought within the carrier's obligations is left to the parties themselves to decide.

At a glance

Court

Decision date

Before

Source

Judgment (97 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (6)

Cited By (1)