The 'ELIN' – Deck Cargo And Exclusion Clauses

The recent case of Aprile SPA v Elin Maritime Ltd ("The Elin")1 relates to a shipowners' ability under English law to exclude their liability for loss of and/or damage to a cargo carried on deck, pursuant to an express exclusion clause contained on the face of a bill of lading.

Facts

The cargo was a consignment of steel equipment being transported from the port of Laem Chabang, Thailand, to the port of Djen Djen, Algeria. During the voyage, between 2 and 6 July 2016, the "ELIN" encountered heavy seas, and some of the cargo was lost and/or damaged. A part of the cargo that suffered loss and/or damage was indisputably carried on the vessel's deck and it is that cargo which was the subject of the decision.

The cargo interests alleged that the loss of the deck cargo was caused by the owners' failure to deliver the deck cargo in the same good order and condition in which it had been on shipment; to properly and carefully load, stow, carry, keep and care for the cargo in breach of Article III, Rule 2 of The Hague Rules, or alternatively The Hague-Visby Rules; to properly lash and/or stow the deck cargo sufficiently for the voyage; and/or to exercise due diligence to make the ship seaworthy at the commencement of the voyage and, in particular, to make the ship and her holds fit for the reception, carriage and preservation of the deck cargo stowed in it in breach of Article III, Rule 1 of the Hague or Hague-Visby Rules.

The owners denied liability on the grounds, amongst others, that liability for the carriage of deck cargo was excluded by an express term in the bill of lading, which stated as follows:

"of which 70 pckgs as per attached list loaded on deck at shipper's and/or consignee's and/or receiver's risk; the carrier and/or Owners and/or Vessel being not responsible for loss or damage howsoever arising"

As it would be determinative of liability, a preliminary issue was ordered for the purpose of determining "whether, on a true construction of [the bill of lading], the defendant is not liable for any loss or damage to any cargo carried on deck howsoever arising, including loss or damage caused by unseaworthiness and/or the defendant's negligence."

The Court's Decision

The Judge held that, as a matter of plain language and good commercial sense, the owners' construction of the exclusion was to be preferred. The Court held, on the issue of construction, that the words "howsoever arising" were effective to exclude liability for both negligence...