CHAPTER 31

DECK CARRIAGE

©Prof. William Tetley, Q.C.

INDEX

I. Introduction

1) Hague or Hague/Visby Rules

2) Definition of under deck

II. Clean Bill of Lading Means Below Deck

1) The basic principle

2) Custom

3) Express agreement

4) Implied consent

5) Containers and deck carriage

6) Application of the Rules and deck cargo

III. The Consequences of Deck Carriage

1) Deck carriage so declared

2) Unstated deck carriage - The Hague Rules

3) Deck cargo - reasonableness

4) Unstated, but bill of lading in error

5) Goods on deck and later below

IV. General Clauses Permitting Deck Carriage

1) General clauses is not a statement

2) Various erroneous judgments

3) Deck carriage is improper stowage

4) The commercial argument

V. Consent of the Shipper

1) Consent, knowledge or acquiescence

2) Acquiescence - previous shipments

3) The bill is not the whole contract

VI. Statement that the Hague Rules Apply to Deck Cargo

VII. France - Deck Carriage

1) Domestic and residuary regime

2) The Visby Rules

VIII. The Visby Rules

IX. The Hamburg Rules

1) Introduction

2) Right to carry on deck

3) "Agreement" and "Statement"

4) The sanction

5) "Express agreement"

CHAPTER 31

DECK CARRIAGE

I. Introduction

1) Hague or Hague/Visby Rules

Deck cargo, which is stated in the contract of carriage as being carried on deck, is notsubject to the Hague or the Hague/Visby Rules. One arrives at the foregoing conclusionfrom a reading of art. 1(c) and art. 3(8), which forbids contracting out of the Rules, andart. 2 which governs carriage of goods. Art. 1(c) defines "goods" as "goods, wares,merchandise and articles of every kind whatsoever except... cargo which by the contractof carriage is stated as being carried on deck and is so carried." (Emphasis added)

In consequence, the carrier is free to rely on non-responsibility clauses in the bill oflading, while neither the carrier nor the shipper may benefit from or be subject to theRules, provided that: a) the bill of lading on its face states that the goods are carried ondeck, and b) the cargo is in fact carried on deck.

2) Definition of under deck

Under deck means not exposed to the elements; in other words, the cargo is completelyprotected by the ship's structure.(1)

 

II. Clean Bill of Lading Means Below Deck

1) The basic principle

It is a basic principle that a clean bill of lading, both before and since the Hague and theHague/Visby Rules has always meant that the cargo is to be carried below deck.(2) Inother words, where the carrier contracts to carry goods without describing the actualplace of stowage, it is understood that the goods are carried under deck. This principlemust be recognized in any consideration of deck cargo and the Rules. Unfortunately,there is nothing in the Rules specifically stipulating that a clean bill of lading meansunder deck carriage. It would have been fitting to have included such a requirement inart. 3(3), although under deck stowage is assumed in art. 3(2), where the carrier is obligedto stow "properly".

2) Custom

Before the adoption of the Hague Rules, it was customary in certain trades to carry goodson deck, and mention of deck carriage was not required on the bill of lading.(3) This pre-Hague Rules principle has little basis for application now, because the Rules are notsilent, but state, at art. 1(c), "which by the contract of carriage is stated as being carriedon deck". Some courts(4) and authors(5) erroneously take the position that the principleof custom in respect to deck cargo still exists, although the Rules stipulate just theopposite, namely that the "contract of carriage" must have stated "that goods were beingcarried on deck".

The standard formulation of this erroneous viewpoint, found particularly, but notexclusively,(6) in American decisions, is: "Absent an express agreement by the shipperpermitting cargo to be stowed on-deck or a general port custom permitting on-deckstowage, a shipper is entitled to expect below-deck stowage under a clean bill oflading."(7) (Emphasis added). There is also a tendency to extend the "custom" exceptionto include trade, as well as port, customs. In Konica Business Machines, Inc. v. Sea-LandConsumer,(8) for example, the Ninth Circuit held: "Absent express agreement or ageneral port or trade custom, stowage above deck is a deviation and the carrier cannotrely on liability limitation clauses in the bill of lading." (9) (Emphasis added)

3) Express agreement

The burden of proving that the shipper agreed to on-deck stowage falls upon thecarrier(10) and is sometimes onerous. Even where the bill of lading, on its face, providesfor on-deck stowage, it may not necessarily reflect the shipper's true express agreement tosuch carriage. In Ingersoll Milling Machine Co. v. M/V Bodena, for example, the SecondCircuit held that the initial oral communications between the parties in effectcontemplated under-deck carriage, because on-deck carriage was not specifically agreedto. The subsequent act of the carrier's port agent, prior to sailing, in adding to the face ofthe bill of lading form (prepared previously by the shipper's freight forwarder) thenotation "on deck shipper's risk", was held insufficient to displace the original, oral,under-deck agreement. Even the fact that the shipper and its freight forwarder hadreceived copies of the bill of lading containing the on-deck notation after the ship set sail(thus giving them "constructive notice" of the deck carriage) made no difference. TheCourt held:(11)

"A carrier cannot impose on-deck stowage on a shipper merely by including a notation inthe bill of lading which it delivers after the voyage commences. To allow a carrier after

the fact to impose on the shipper an unauthorized change of terms would run counter tothe general propositions that, without its contrary agreement, a shipper is entitled toexpect below-deck stowage."

The express agreement of the shipper which justifies deck carriage, therefore, must notonly be recorded on the face of the bill of lading, but must also be a genuine, informedconsent, and one given prior to sailing. And, of course, the express agreement must beclear and in the bill of lading, rather than any other document.(12)

4) Implied consent

It is sometimes held that a freight forwarder who acts as an agent of the shipper and whoknows of the on-deck carriage practices of the carrier can in effect tacitly consent to deckcarriage on the shipper's behalf.(13) The freight forwarder is then said to have apparentauthority to bind the shipper to a deck carriage contract. This position is fraught withdifficulties, however. In the first place, a freight forwarder concluding a contract ofcarriage does not necessarily act an agent of the shipper. A freight forwarder may actrather as an agent of the carrier(14) and in many cases functions as an independentcontractor.(15) In order for the forwarder to be considered an agent of the shipper, it isnot sufficient that the shipper merely select the forwarder to arrange the shipment on hisbehalf; it is also necessary that the shipper control the manner in which the forwarderperforms his duties.(16)

Even where the shipper in fact exercises such control over the forwarder's performance,so that the forwarder is really his agent, the mere fact that the forwarder knows of thecarrier's deck carriage practices should not be deemed to constitute implied consent of theshipper to such carriage, in the absence of a clear "on deck" statement on the face of thebill of lading.(17) Art. 1(c) of the Hague and Hague/Visby Rules and sect. 1(c) of U.S.COGSA 1936 still require that the goods be "stated as carried on deck" in order for themto be exempt from the regime of the Rules and the statute.

5) Containers and deck carriage

Certain container ships are especially equipped to carry containers both under deck andon deck. Yet containers on deck are at greater risk than those under deck, or at least itwould seem that those containers which are swept or slide overboard have always beenthose carried on deck.(18)

Shippers and consignees are therefore entitled to know where their containers are loadedbecause of the increased risk of deck carriage. It is noteworthy as well that certaincontainers require special stowage because of the nature of the cargo; for example,certain ventilated, heated or refrigerated containers may require under-deck stowagewhile others cannot be carried under deck.

Because of the advent of containers and modern container ships, a legal dilemma hasarisen. May containers be carried on deck without the consent of the shipper and withouta statement on the face of the bill of lading or should the law be strictly observed?

The Hague and Hague/Visby Rules at art. 1(c) make no exception for containers. As aconsequence, the domestic law of France was amended on December 21, 1979 providingan exception for containers at art. 22 second para.(19)

[Translation] "The consent of the shipper is presumed to have been given in the case ofcontainers carried on board ships appropriately equipped for this type of carriage."

Similarly the drafters of the Hamburg Rules(20) at art. 9(1) have permitted deck carriagewithout the agreement of the shipper, in the case of "usage of the particular trade", whichpresumably could include containers on container ships.

The absence of similar provisions in the Hague or Hague/Visby Rules confirms theconclusion that containers carried on deck under the Hague or Hague/Visby Rules mustbe so declared on the face of the bill of lading, to protect the carrier from theconsequences of fundamental breach.

Some courts, however, have taken the position that even without an express amendmentto international conventions, or national legislation such as that enacted in France, deckstowage of containers on specially-designed container-carrying vessels is justified deckcarriage(21) and not an unreasonable "quasi-deviation" or a fundamental breach ofcontract depriving the carrier of the Hague limitations. Such carriage is often held to becustomary(22) or, at any event, "reasonable", based on the notion that aboard containerships "technological innovation and vessel design may justify stowage other than belowdeck"(23). Safety concerns relating to the cargo or the containers themselves aresometimes also invoked to support the "reasonableness" of deck carriage.(24)

While the design of modern container carriers may make deck carriage of such "boxes"less risky than previously, the risks have not been totally eliminated, as the case lawamply demonstrates. Whether such carriage is truly "reasonable" therefore remains highlydebatable in fact,(25) with the burden of proving "reasonableness" falling upon thecarrier.(26) In law, moreover, neither the Hague nor the Hague/Visby Rules nor U.S.COGSA 1936 have been amended so as to change what was always deemed anunreasonable deviation or quasi-deviation, or fundamental breach of the contract, intovalid performance of it. In consequence, the law governing deck carriage has beenthrown into considerable confusion by judgments upholding undeclared deck stowage ofcontainers as customary and/or reasonable.(27)

If carriers truly believe that on-deck carriage of containers aboard container ships today isno more dangerous than their under-deck transportation, they should agree in their bills oflading to subject such deck carriage to the Rules or to COGSA, which apply by force oflaw to carriage below deck. Alternatively, if carriers (and/or the shipping conferences towhich they belong) insist on obtaining exemptions from, or limitations of, liability whichthe Rules or COGSA would not permit, in respect of loss or damage befallingcontainerized deck cargo, they should clearly state the fact of such carriage on the face oftheir bills of lading before the commencement of the voyage, so as to give cargo interestsfair notice of the terms of carriage, in order that they may purchase adequate insurancefor their shipments.

6) Application of the Rules and deck cargo

The Hague and Hague/Visby Rules therefore apply in each of the following cases:

a) where cargo is carried under deck and a clean bill of lading is issued;

b) where cargo is carried under deck but the bill of lading states that the cargo is carriedon deck;

c) where cargo is carried on deck and is stated on the bill of lading as being carried ondeck, but the bill of lading, by a special clause, applies the Rules to deck cargo;(28)

d) where cargo is carried on deck, but the bill of lading is clean.(29) The carrier in thiscase commits a fundamental breach and should not benefit from the exception clauses ofthe bill of lading or the Hague and Hague/Visby Rules.

The Hague and the Hague/Visby Rules do not apply when cargo is carried on deck andthe face of the bill of lading states that the cargo is on deck.(30)

 

III. The Consequences of Deck Carriage

1) Deck carriage so declared

The effect of deck carriage of goods so declared in the bill of lading, is that the Hagueand Hague/Visby Rules do not apply.(31) Consequently, the common law or civil law,which governs the contract, applies and the carrier may invoke those bill of ladingclauses which are contrary to the Rules but which are acceptable under the less rigid lawof the contract.(32) Nevertheless, if the goods are carried on deck, carriers are stillobliged to properly load, stow, care for and discharge the cargo.(33)

The Harter Act(34) applies to internal shipments in America, and there is no exceptionfor deck cargo under that Act. The carrier is therefore obliged by statute to use "proper ...care" in carrying deck cargo like any other cargo. In Globe Solvents Co. v. SS.California(35) it was held that:

"The right to stow libellant's cargo on deck (by virtue of an Act of Congress andregulations issued pursuant thereto) did not relieve the respondent from the obligation touse reasonable care in reducing that risk to a minimum, which degree of care therespondent failed to exercise."

The carrier used only three inches of dunnage when two to seven inches of sea washingover the deck was expected. The Court held the carrier responsible, because the dunnageshould have been eight to ten inches. The bill of lading bore the stamped notation,"loaded on deck owner's risk of damage or loss", but this was held invalid, beingcontrary to public policy and to the Harter Act.

2) Unstated deck carriage - The Hague Rules

On the other hand, if goods are in fact carried on deck when there is no statement on theface of the bill of lading that they are carried on deck, then the carrier may not invoke anyof the limitations in the contract or of the Hague Rules which might benefit him, becausethere has been a fundamental breach of the contract.(36)

United States courts have considered undeclared deck cargo to be a quasi-deviation.Thus in Encyclopaedia Britannica v. Hong Kong Producer,(37) the U.S. Court ofAppeals held that on-deck carriage of a container without a notation on the bill of ladingwas a deviation which deprived the carrier of the $500 per package limitation.

In Sealane,(38) despite having issued clean, unclaused bills of lading, and despite theabsence of a custom permitting deck carriage, the carrier stowed a cargo of explosiveson deck, which was subsequently lost in heavy weather. The Fifth Circuit held that suchstowage constituted an unjustifiable deviation. Although Coast Guard Regulations, ofwhich the shipper was aware, permitted explosives to be stowed on deck, the carrier wasnot obligated to do so. By not stating on the bill of lading that the explosives would be

carried on deck, the carrier fundamentally breached the contact when it so carried them.Consequently, it was, fully liable for the loss, which was directly and causally related tothe deck carriage.

In Calmaquip v. West Coast Carriers Ltd.,(39) the carrier had agreed to transport sevenairport loading bridges from Miami to Panama. The shipper had specifically directedthe carrier to ship the cargo below deck and the bill of lading also specified below deckstowage. Upon arrival, the bridges were found to have been damaged. The Fifth Circuitheld that the on deck-stowage of the cargo, contrary to the specifications on the bill oflading, constituted an unreasonable deviation and the carrier could not benefit from thelimitations and exclusions under the contract and COGSA.

In Constructores Tecnicos, S. de. R. L. v. Sea-Land Service, Inc.,(40) a truck was lashedto a flatrack open container and stowed on deck. The vehicle became a total loss whenlashings on a nearby container broke during bad weather at sea and the container tumbledover into the truck. The bill of lading did not indicate whether the truck was to be loadedon or below deck. The Court held that the deck carriage was an unreasonable deviationbecause there was no evidence that the shipper had expressly consented to such carriage,nor was that carriage justified by any port custom. Nor had the freight forwarder anyapparent authority from the shipper to agree to the carrier's loading practices, because theforwarder was not subject to the shipper's control as to the manner of performing itsduties, and therefore was not the shipper's agent, but rather an independent contractor.The under-deck presumption resulting from the issuance of the clean bill of lading wastherefore not counteracted, and both the charterer and shipowner were held liable for thisunreasonable deviation, beyond the $500 package limitation of U.S. COGSA.

Courts of the world have usually followed the rule that unstated deck carriage results inthe carrier losing the benefits of the exemptions in the Hague Rules and the contract.(41)There have been some exceptions, however.(42)

3) Deck Cargo -Reasonableness

Unstated deck carriage is a fundamental breach or a quasi-deviation. Geographicdeviation, by art. 4(4) of the Hague or Hague/Visby Rules, if "reasonable", is not afundamental breach and it has been argued that deck carriage being a quasi-deviation, ifreasonable, is not a fundamental breach of the contract or of the Hague or Hague/VisbyRules. Thus it has been argued, that containers could be reasonably carried on deck undercertain circumstances.(43) This argument ignores that the Rules specifically stipulate thatdeck cargo must be "stated" as being carried on deck by art. 1(c). Therefore even if the"reasonable" criterion of geographic deviation may be applied to deck carriage, thecriterion cannot contradict the explicit terms of art. 1(c) of the Hague Rules. Thus the billof lading must contain a statement of on-deck carriage before the reasonableness criterioncan be applied to deck cargo.

4) Unstated, but bill of lading in error

If deck carriage was agreed upon, but a clean bill of lading was issued in error, then, asbetween the original parties (shipper and carrier), the carrier may show that a clean orunder deck bill of lading was issued in error and that the parties had in fact agreed tostowage on deck.(44)

5) Goods on deck and later below

It has been held, that where goods were stowed on deck and then, in the course of the

voyage, restowed under deck and the contract was not severable, that the Hague Rulesapplied to the whole contract of carriage.(45)

 

IV. General Clauses Permitting Deck Carriage

1) General clause is not a statement

Confusion has arisen over printed clauses in bills of lading presumably permitting deckcargo. These clauses known as general liberty to carry on deck clauses might read:"Carrier has liberty to carry goods on deck."

Deck carriage liberty clauses also frequently give the carrier the option of stowing thecargo either on or under deck, while also exempting the carrier from all liability for lossof or damage to cargo stowed on deck.(46)

A clause of this type is valid only if the goods are carried on deck and the carrier has"stated" on the face of the bill of lading that the goods are carried on deck.(47) To callsuch a liberty or permissive clause a "statement" within the terms of art. 1(c) which reads:"is stated as being carried on deck", is to do violence to the English language and thewhole economy of the Rules.(48)

A leading decision on general liberty clauses to carry goods on deck is St. SimeonNavigation Inc. v Couturier & Fils Ltée,(49) where the Supreme Court of Canada heldthat a general liberty clause does not constitute a statement that the goods are actuallycarried on deck:

"a provision that goods stowed on deck shall be deemed to be stated as so stowed,without any specific statement to this effect, is in violation of the Rules."

In The Chanda,(50) a case, governed by the Hague Rules as enacted by West Germany,a large and expensive piece of computerized equipment was carried on deck and wasdamaged during a storm at sea. A clause of the bill of lading permitted deck carriage, alsospecifying that the carrier would have the benefit of the immunities, exceptions andlimitations of liability with respect to on-deck cargoes as if they were carried below deck.The shipper, however, had not consented to deck carriage, because the relevant boxes onthe bill of lading referring to the clause had not been ticked. The carrier invoked theclause to claim the benefit of the German Hague Rules package limitation of DM1250.Hirst J. found this "package limitation clause" incompatible with several older decisionsdenying effect to exclusion clauses in deck carriage situations.(51) He held that theseolder decisions did not rest "...on the discredited fundamental breach rule", but rather on"a principle of construction... that clauses which are clearly intended to protect theshipowner provided he honours his contractual obligation to stow goods under deck donot apply if he is in breach of that obligation."(52) He continued:(53)

"I am satisfied that the package limitation clause falls fairly and squarely within thiscategory, since it can hardly have been intended to protect the shipowner who, as a resultof the breach, exposed the cargo in question to such palpable risk of damage. Otherwisethe main purpose of the shipowners' obligation to stow below deck would be seriouslyundermined...."

In France, the Cour de Cassation,(54) in a case governed by the Hague/Visby Rules,observed that the general liberty to carry on deck clause printed on the rear of the bill of

lading did not indicate whether or not the carrier would actually exercise the deckcarriage option. In addition, the clause did not require the consent of the shipper to suchcarriage (even a posteriori). The clause therefore did not suffice to authorize the deckcarriage of three open-top containers, in the absence of the express authorization of theshipper to such carriage. The carrier was consequently held liable for the resultingdamage to the cargo, which would not have occurred but for the carriage above deck, andtherefore could not benefit from either the liberty clause or the peril of the sea defence ofart. 4(2)(c) of the Hague/Visby Rules. Commenting on this importance of the decision forFrench maritime law, Pierre Bonassies observed:(55)

"(translation): Henceforth, things are clear: whatever the clauses of a bill of lading maybe, if it does not expressly mention that the goods are in fact carried on deck, thatstatement normally resulting from the entry on the face of the bill of lading of the words'en pontée' (on deck), the carriage remains subject to the provisions of the Convention of1924, with all the consequences which that entails - and notably, the nullity of any clauselimiting the liability of the carrier." (Emphasis in original)

In Belgium, the same view prevails. It has been held there that, except where vessels arespecially equipped to carry goods on deck, the bill of lading holder is entitled to expectthat the goods will be carried below deck.(56) the carrier who fails to mention on the billof lading that containers are carried on deck commits a "fault" in relation to the "holder indue course" of the bill of lading. It gives rise to a presumption of liability, precluding thecarrier from relying on the clauses of art. 91 of the Belgian Maritime Law(57) (theHague/Visby Rules) and clauses in the bill, including the liberty clause. Such deckcarriage is a "breach of confidence" of the holder in due course of the bill, even wherecarriage by sea is being effected using container vessels on which all cargo is in practicecarried on deck.(58)

A general liberty clause is an option, not a statement.(59) The problem arises when thebill of lading contains a general liberty clause, but the face of the bill of lading does notstate that the cargo was loaded on deck. Under such circumstances, it would appear thatdeck carriage is unjustifiable for at least three reasons:

a) The general liberty to carry on deck clause is merely an option to carry on deck, achoice which the carrier ordinarily does not have. If the bill of lading does not bear astatement on its face giving notice that the cargo is actually on deck, then by default theoption has been exercised in favour of under deck carriage. This was the position takenby the U.S. Supreme Court in Schooner St. Johns N.F.(60)

b) The typewritten or handwritten wording on the face of a bill of lading has precedenceover the bill's printed clauses.(61) And a clean bill of lading, because it implies under-deck stowage, is functionally equivalent to a typewritten or handwritten notation on theface of the document calling for carriage below deck. A clean bill of lading thereforeoverrides the printed liberty to carry on deck clause.

c) To consider a printed general liberty clause valid, absent a statement that the cargowould actually be carried on deck, would attempt to give effect to a non-responsibilityclause hidden among the other clauses of the bill of lading. Yet such a non-responsibilityclause would be invalid under art. 3(8) of the Hague or Hague/Visby Rules.

A general deck carriage clause without a statement on the face of the bill of lading thatcargo is carried on deck is merely an option not exercised(62) and the deck carriage istherefore a fundamental breach of the contract and the Rules. The remarks of Lord Atkinin Foscolo, Mango & Co. v. Stag Line Ltd.,(63) although referring to an unreasonable

geographic deviation, rather than to unauthorized deck carriage, are nonetheless fitting:

"... I find no substance in the contention faintly made by the defendants that anunauthorized deviation would not displace the statutory exceptions contained in theCarriage of Goods by Sea Act. I am satisfied that the general principles of English laware still applicable to the carriage of goods by sea except as modified by the Act, and Ican find nothing in the Act which makes its statutory exceptions apply to a voyage whichis not the voyage the subject of the 'contract for the carriage of goods by sea' to whichthe Act applies."

In Svenska Traktor Aktiebolaget v. Maritime Agencies (Southampton)Ltd.,(64) the bill oflading contained a combined general liberty, non- responsibility clause, which read:

"Steamer has liberty to carry goods on deck and shipowners will not be responsible forany loss, damage, or claim arising therefrom."

The Court held, properly, that the general liberty portion of the clause was not a"statement" within the terms of art. 1(c) of the Rules.(65) The Court also correctlyconcluded that, since the Rules were applicable, the non-responsibility portion of theclause was void, being repugnant to art. 3(8). However, the Court did not find that thecarrier had fundamentally breached the whole contract by carrying part of the cargo ondeck; nor did it find that the general liberty portion of the clause was repugnant to art.3(8). Instead, the Court allowed the carrier to benefit under the Rules and would haveexculpated it under the perils of the sea exception if a peril had been proven. The Courtalso concluded that the deck carriage in this case was a breach of the carrier's obligationunder art. 3(2) to properly and carefully stow and carry the goods, and consequently thecarrier was liable for the loss of the deck cargo resulting from that breach.

It is submitted that the unjustified deck carriage in Svenska Traktor fundamentallybreached the contract and, therefore, the carrier could not benefit from the limitations andexceptions under the contract or the Rules if the loss was related to the deck carriage.This is the position now generally taken in respect to general liberty clauses permittingdeck carriage.(66)

2) Various erroneous judgments

Other judgments of questionable authority in respect to general liberty deck carriageclauses are Armour & Co. Ltd. v. Leopold Walford (London) Ltd.(67) and PeterHelms.(68) The first decided the question under the pre-Hague Rules law in GreatBritain. The second, a very brief American decision, which apparently was also based onpre-Hague Rules law, erroneously distinguished itself from Schooner St. Johns N.F.,(69)held that a bill of lading containing a printed general liberty clause was not a "clean"bill of lading and therefore the carrier could exercise its option to stow on deck. TheUnited States Supreme Court, in Schooner St. Johns N.F., had held that the contract ofcarriage was the freight reservation and the bill of lading taken together, and, althoughthe freight reservation contained a general liberty deck carriage clause, by issuing a cleanbill of lading, the carrier had declared that it had exercised its option in favour of below-deck carriage. In other words, the option to carry on deck was not exercised. InGivaudan Delawanna Inc. v. S. S. Blijdendijk,(70) a general liberty clause was held tobe sufficient notice to subsequent holders of the bill that the goods were stowed on deck.Here again, the meaning of the Supreme Court in Schooner St. Johns N.F wasmisunderstood.

In Guadano v. S.S. Cap Vincent,(71) containers were carried on deck although the bill of

lading was clean. A clause in the bill of lading read:

"It is mutually agreed that goods shipped under this Bill of Lading and stowed incontainers may be carried on deck and for purposes of General Average be treated as tobe stowed under deck."

The Court held that containers could be carried on deck when this is the usual carryingplace on the ship. On the other hand the Court also found insufficient packing for thefurniture in the containers and exculpated the carrier under art. 4(2)(n) of the HagueRules. Whether the damage would have resulted if the furniture had been carried belowdeck is not fully answered.

Another questionable decision is Aetna Insurance Co. v. M/V Lash Italia,(72) wherevehicles were carried aboard a LASH barge on the deck of a ship, contrary to an expressterm of the bill of lading calling for under-deck carriage. The Court nevertheless held thatthere was no unreasonable deviation, because a clause in the bill of lading provided:"goods stowed in poop, forecastle, deck-house, shelter deck, passenger space, storeroom,or any other covered in space shall be deemed to be stowed under-deck for all purposes."(emphasis added).

The findings in Armour & Co. Ltd. v. Leopold Walford (London) Ltd., The Peter Helms,Delawanna Inc. v. S.S. Blijdendijk, and Guadano V. S. S. Cap Vincent are or would beerroneous under the Hague or Hague/ Visby Rules, for the three reasons set out above,which may be recapitulated as follows:

a) A general liberty clause to carry on deck is an option, which, when exercised in favourof on deck stowage, must be so declared in a statement to that effect on the face of thebill of lading.

b) A printed clause among general bill of lading clauses cannot contradict or supplant theclean face of a bill of lading. Typewritten clauses or the absence of typewritten clauseshave precedence over printed clauses.

c) To permit a general liberty clause is, in effect, to permit a non-responsibility clausecontrary to art. 3(8) of the Rules.

3) Deck carriage is improper stowage

To the above three reasons must be added the duty of the carrier under art. 3(2) to stowthe goods properly. Deck carriage is improper stowage and thus contrary to art. 3(2).(73)

Even where under-deck carriage is impossible in practice, either because the vessel lacksany holds, or because the cargo, owing to its size or nature, cannot physically be carriedbelow deck, or cannot be carried there safely, on-deck stowage under a "clean" bill oflading is nevertheless improper. A bill of lading issued in such a case without any "ondeck" notation on its face is still a "clean" bill of lading, importing below-deck carriage.A general liberty to carry on deck clause in such a bill is still only an option and does notreplace a clear statement of deck stowage on the bill's face. The merchandise stowed ondeck under such a bill still constitutes "goods" within the meaning of art. 1(c) of theHague and Hague/Visby Rules, thus making the Rules applicable. A clean bill of ladingis evidence of the carrier's receipt of the cargo "as therein described" (art. 3(4)), whichincludes its presumed under-deck stowage. While the clean bill may be contradicted bythe carrier vis-à-vis the party who contracted for the carriage (usually the shipper)because that party is (presumably) aware of the on-deck stowage, once the bill is

transferred to a third party holder in good faith (a consignee, an endorsee or a bank) whois unaware that on-deck carriage was the only practical possibility, the bill becomesirrebuttable evidence of the carrier's receipt of the goods "as therein described", i.e. asdeemed under-deck cargo. In consequence, where the goods are lost or damaged duringthe ensuing voyage as a result of their carriage above deck, the third party holder of thebill should still be able to break the Hague and Hague/Visby limitations on grounds offundamental breach (unreasonable deviation), resulting from the unstated, and thereforeunjustified, deck carriage.

Where deck carriage is the only realistic option, the carrier, before the vessel sails, shouldclearly state on the face of the bill of lading that the cargo is stowed above deck. Thecarrier can thus lawfully avoid the application of the Hague or Hague/Visby Rules, infavour of purely contractual liability limitations and exceptions.(74) At the same time,cargo interests, being properly notified of such carriage before sailing, may seek adequateinsurance cover for their goods. And the carrier will not be responsible to bona fide thirdparty holders of the bill of lading who relied on the clean bill of lading to their detriment.

4) The commercial argument

A general liberty to carry on deck clause is not beneficial to the shipping industry or tothe world of commerce. It is a secret, open ended option. It is a non-responsibility clauseand not a statement. The carrier, for its part, may always protect itself by stating on theface of the bill of lading that a cargo is carried on deck. Carriers are reluctant to makesuch a declaration, because banks and financial institutions may not accept the bill oflading as "clean"; carriers also face the wrath of their client, the shipper.

Thus the clean bill of lading, with a general liberty clause among the many clauses, isusually a deliberate dissimulation. The practice should not be condoned by the courts;rather, they should follow the lead of Woosey J. in Italian Importing Co. v. NavigazioneLibera Triestina (Carso)(75) who held that:

"A bill of lading is a document of dignity and Courts should do everything in their powerto preserve its integrity in international trade, for there, especially, confidence is of theessence."

 

V. Consent of the Shipper

1) Consent, knowledge or acquiescence

The courts at times have said that, although the bill of lading does not state that thegoods are carried on deck, the consent or knowledge of the shipper as regards deckcarriage is sufficient to permit valid deck carriage.(76) It is submitted that knowledge,oral consent or acquiescence may not contradict a specific provision of a statuterequiring a statement that goods are being carried on deck, which statement must be inthe contract of carriage. In Encyclopaedia Britannica v. Hong Kong Producer,(77) theshort form bill of lading was clean and referred only to the long form bill of lading, whichwas also clean but which contained a printed general liberty clause permitting on deckcarriage. This was held to be insufficient by the Second Circuit in respect to a containercarried on deck even though the shipper had previously dealt with the carrier.

In St. Simeon Navigation v. A. Couturier & Fils,(78) a general liberty clause in the bill oflading provided that any cargo stowed on deck would be deemed to have been declared

as so stowed and that the carrier was not responsible for any loss to the goods on deckfrom any cause whatsoever including negligence or unseaworthiness of the ship. Therewas no statement on the face of the bill of lading that the goods were actually carried ondeck. It was held by the Supreme Court of Canada that the general liberty clause to carryon deck was not a "statement" under art. 1(c) of the Rules. The Court also gave shortshrift to the argument that the shipper had consented to, or knew of the deck carriage.Rather it was held that the loss had been caused by the high stacking of the cargo and thecarrier was therefore unable to benefit from the non-responsibility clause.

In Rosenbruch v. Amer. Export Isbrandtsen Lines,(79) the shipper prepared the bill oflading and the carrier deleted the words "Stow under deck only" and then returned the billof lading to the shipper. The container was stowed on deck and was lost overboard. TheSecond Circuit held that the deleted words were not part of the contract of carriage. TheCourt also held without much explanation that the "under deck" clause was prohibitedby the "Tariff Rules and Regulations" of the North Atlantic Conference of which thecarrier was a member and which Tariff was incorporated by reference into the bill oflading. Thus it was not an unreasonable deviation to have stowed on deck. The Court didnot go so far as to say that the Tariff took precedence over the law but gave effect to theproposition all the same. (This is a very questionable decision.)

In English Electric Valve Co. v. MV Hoegh Mallard,(80) the on-deck stowage of an opentop, over-height container was found to be both customary and reasonable. In addition,the Court held that the shipper's consent to that stowage could be inferred both from thetariff rates, which applied only to on-deck stowage, as well as from the bill of lading,which reserved to the carrier the option to carry containers on deck. Thus the shipper washeld to have had "actual notice" of the stowage method, as well as "notice through priorpractice" that on-deck stowage was usual on the route concerned.

Another similar decision of questionable merit is Alternative Glass Supplies v. MVNomzi,(81) where the Court found that the deck carriage of containers was not anunreasonable deviation, because the tariff rules of the liner conference to which thecarrier belonged prohibited its members from accepting specific instructions with regardto the stowage of containers aboard their vessels, and permitted those carrier to carrycontainers on or below deck without notice to the shipper.

In Sheerwood et al. v. The Lake Eyre et al.,(82) the shipper, in his discussions with theship's agents concerning the shipment of personal effects from Toronto to Australia,insisted that the goods be stowed below deck but the ship's agents, while assuring himthat they would endeavour to meet his wish, never actually gave him a definitecommitment for below deck stowage. The bill of lading when delivered to the shipperwas endorsed "on deck at shipper's risk". The shipper at once demanded that his goodseither be stowed below deck or taken off the ship at Montreal, to which port the ship wasproceeding en route to Australia. He did not, however, surrender the bill of lading, andhis demand was not complied with. His goods, stowed on deck, were damaged in severeweather at sea.

It was held that the shipper was entitled to damages for his loss. There was no agreementbetween the parties for stowage on deck and the clause in the bill of lading to that effectdid not correctly reflect the actual terms of the contract which were "implied by law".(83)

2) Acquiesence -previous shipments

In Sealane (Searoad Shipping Co. v. E.L Du Pont de Nemours),(84) it was held that,although eight prior shipments of explosives by the same shipper had been carried on

deck despite clean bills of lading having been issued, this did not amount to a waiver ofunder-deck carriage by a person having requisite authority and awareness to do so. Otherdecisions, unfortunately, have upheld deck carriage where the bill of lading has not notedsuch carriage on its face, on the grounds of the shipper's presumed acquiescence basedon previous shipments on deck.(85)

On the other hand, in Great American Ins. Cos. v. M/V Romeral,(86) evidence of some200 previous shipments of tractors and related equipment over seventeen years helped todefeat the carrier's effort to discharge its burden of proving that deck stowage of suchmachinery was customary in the Port of New Orleans.

3) The bill is not the whole contract

It is a principle of the general maritime and commercial law that a bill of lading is onlythe best evidence of the contract of carriage.(87) The real contract of carriage is the billof lading, the telephone calls by the shipper to the carrier before shipment, the bookingnote, the carrier's tariff and advertisements etc., all taken together.(88) In respect to deckcarriage, however, the Hague Rules and the Hague/Visby Rules, specifically stipulatethat deck carriage must be so "stated" on the bill of lading. It follows that under theHague and Hague/Visby Rules, the telephone calls, the booking note, the tariff andadvertisements, although together forming the contract, nevertheless may not contradictthe statement or lack of statement as to deck carriage on the bill of lading.(89)

In a similar vein, it was held in Ingersoll Milling Co. v. M/V Bodena(90) that althoughthe shipper and its freight forwarder, after the ship sailed, had received a copy of the billof lading on which the carrier's port agent had entered "on deck shipper's risk" andmade no objection to that notation, they could not be said to have waived their right tounder-deck stowage, which had been the original understanding.

The domestic law of France(91) and the Hamburg Rules(92) also make specificreferences to deck carriage and containers and usage, which exceptions create apresumption that the shipper has consented to their terms and modify the general rule asto what the contract of carriage actually is.

 

VI. Statement that the Hague Rules Apply to Deck Cargo

It should be noted that the Hague Rules can be applied to deck cargo if there is anexpress statement in the bill of lading that the Hague Rules will so apply. In such a case,the Rules apply and the carrier must exercise care and otherwise comply with the HagueRules.(93)

 

VII. France - Deck Carriage

1) Domestic and residuary regime

The French domestic law,(94) which applies to shipments from any port in France or itsterritories overseas(95) to any other port in France or its territories overseas, containsthree special provisions in respect of deck cargo.(96) Art. 22 of the Law of June 18,1966 is to the effect that the carrier is at fault if he carries the cargo on deck, except:

a) in the case of "petit cabotage" (i.e. carriage between French ports on the same sea orbody of water),(97)

b) where regulations impose deck carriage (e.g. certain dangerous goods),(98) or

c) where the shipper's consent is mentioned on the bill of lading.(99)

Art. 22 second para. adds that the consent of the shipper to deck carriage is presumed inthe case of containers on ships appropriately equipped for this type of carriage.(100)Art. 30 stipulates that non-responsibility clauses may govern cases of permissible deckcarriage (as defined in art. 22), except for containers stowed on deck on specially-equipped vessels, which are treated like cargo stowed under deck.

When there is a general clause in the bill of lading permitting deck carriage, the consentof the shipper is deemed to be given if the bill of lading is signed by the shipper,(101)which signature used to be required by art. 37 of the Decree of December 31, 1966, butwhich has ceased to be required since 1987.(102) When the carrier seeks to rely on theliberty clause in the bill of lading in respect of carriage on deck, he must inform theshipper of the deck carriage by a specific notation on the bill,(103) particularly in orderto permit the shipper to obtain deck cargo insurance coverage.(104)

If the shipper seeks to prevent the carrier from stowing the cargo on deck in reliance onthe liberty clause, the shipper can take an injunction in accordance with the acceleratedprocedure set out in art. 910 of the New Code of Civil Procedure as amended by art. 12of Decree No. 85-1330 of December 17, 1985.(105)

By carrying the cargo on deck contrary to art. 22 of the Law of June 18, 1966, the carriercommits a fault, even if there is no dol or fraud on its part. If the shipper proves, inaccordance with art. 27, last para., that the loss or damage was caused by the carrier'sfault, the carrier will not be able to rely on the exculpatory defences provided by the Law(similar to those in art. 4(2) of the Rules).(106) The carrier will nevertheless be able tobenefit from the limitation of liability, unless the court, in the light of the circumstances,views such illegal deck carriage as having been "committed recklessly and withknowledge" that the loss or damage would probably result. By art. 28, fifth para. (a), ofthe Law of June 18, 1966, as amended by the Law of December 23, 1986,(107) thecarrier only loses this benefit if there is intentional fault (i.e. dol) or recklessness (i.e.faute inexcusable).(108) Under France's domestic regime, however, the dol or fauteinexcusable must be the "personal" act or omission of the carrier, rather than that of hisservants or agents.(109)

The decision of the Cour de Cassation of January 30, 1978(110) involved a case wherethe carrier stowed a locomotive on deck contrary to the formal and clear instructions ofthe shipper. The Court nevertheless held that the carrier's fault did not amount to dolsince the carrier had not intended to cause the damage.(111) In permitting the carrier tolimit his liability despite his evident faute lucrative, the Court overlooked its previousdecision(112) where the meaning of dol was expanded to include not only intending tocause damage, but also voluntarily refusing to execute one's contractualobligations.(113)

Because of the amendment of art. 28 of the Law of June 18, 1966, there is little doubtthat the carrier's reckless disregard of the shipper's clear instructions in stowing cargo ondeck would entail the loss of the benefit of limitation of liability.(114)

Although France's internal cargo liability regime therefore recognizes that unjustified

deck carriage can break the carrier's package and kilo limitations in cases of dol(intention to cause the damage) and faute inexcusable (recklessness with knowledge thatthe damage will probably result), the limits are not broken by mere proof of faute lourde(gross negligence)(115) or faute lucrative (fault committed for personal gain but withoutthe intention to cause damage).(116) Nevertheless, French courts are rigorous inapplying art. 28 and sometimes conclude that the case is one of faute inexcusable, incircumstances where arguably no more than faute lourde is present.(117)

2) The Visby Rules

The Hague/Visby Rules will normally apply in France to international transportaccording to art. 10. However, by virtue of art. 1(c), if the cargo is stated in the bill oflading as being carried on deck and is so carried, the Hague/Visby Rules do not apply.What law will apply in such a case is disputed. Some authors such as Rodière(118)argue that the Law of June 18, 1966 replaces the international convention. Others arguethat the Law of June 18, 1966 cannot apply when neither the port of destination nor theport of loading are in France and therefore the deck carriage should be governed by theproper law of the contract(119) which may very well give effect to non-responsibilityclauses.(120)

If deck carriage is not stated in the bill of lading and not consented to by the shipper,then, by an argument a contrario, the Hague/Visby Rules do apply.(121) By virtue ofart. 4(5)(e), the per package limitation is lost if the carrier acted "with intent to causedamage or recklessly and with knowledge that damage would probably result." Thisplaces a heavy burden on the shipper to show that the carrier intended damage or knewthat damage would probably result.(122)

In the case decided by the Cour de Cassation on June 23, 1982,(123) a clean bill oflading was issued at Rouen four months after the coming into effect of the Visby Rulesin France. The cargo was carried on deck without the shipper's consent(124) and lost inheavy weather. The Cour d'Appel de Paris(125) had held that, although the carriercould not rely on the non-responsiblity clause in the bill of lading, the perils of the seaexception of art. 4(2)(c) would have been available had the carrier proved that such adefence applied in the circumstances and that he had exercised due diligence.(126) TheCour d'Appel, subsequently affirmed by the Cour de Cassation, held that the carriercould nevertheless benefit from limitation of liability since there was no dol on hispart.(127) It is difficult to understand why the Courts did not consider the carrier'sbehaviour as amounting to faute inexcusable, i.e. an act done "recklessly or withknowledge that damage would probably result", within the meaning of art. 4(5)(e) ofHague/Visby.(128)

The Cour de Cassation has decided more recently, however, that deck carriage may losethe carrier the protection of the Hague/Visby limitations where it is tantamount to fauteinexcusable. The Supreme Court further found that even where deck carriage isauthorized by a liberty clause in the bill of lading, and even where it is effected on avessel specially designed to carry containers on deck, it nevertheless remains unjustified,unless expressly mentioned on the face of the bill of lading.(129)

 

VIII. The Visby Rules

The Visby Rules add one provision to the Hague Rules in respect to deck carriage. Thepackage (or kilo) limitation, according to art. 4(5)(e), is lost only if the unauthorized

deck carriage was "done with intent to cause damage, or recklessly and with knowledgethat damage would probably result". This is a very heavy burden of proof on theclaimant and has become known as "the unbreakable limit". Carrying cargo on deck inthe winter months in the North Atlantic, although not done with "intent to causedamage", could come within the alternative -"recklessly and with knowledge thatdamage would probably result."

In Itel Container Corp. v. M/V Titan Scan,(130) art. 4(5)(e) of the Hague/Visby Ruleswas interpreted as necessitating proof that the defendant had taken "a calculated riskwith the full appreciation of the dangers and probable consequences",(131) citing ThePembroke(132) on the point.(133)

Art. 4(5)(e) only refers to the per package limitation being lost (i.e. the unbreakablelimit). A fundamental breach committed by carrying unauthorized cargo on deck willtherefore cause the carrier to lose the benefit of the art. 4(2)(a) to (q) exceptions, the duediligence defence of art. 3(1) and the other defences of the contract. On the other hand,the one year time for suit defence is never lost under the Visby Rules, even for afundamental breach, because of the addition of the word "whatsoever" to new art. 3(6)subpara. 4 of the Visby Rules.(134)

In The Pembroke,(135) where a printing press was carried on deck from Germany toNew Zealand and some of its roller chain rusted following the ship's exposure to marineweather, the New Zealand High Court found that the carrier "must have known" that itwas probable that some of the on-deck open top containers would be wetted in theexpected bad weather encountered on the voyage, with a probability of rusting, andconcluded that it was plain that the master and charterers "... took a calculated risk withfull appreciation of the dangers and probable consequences..."(136) The Hague/Visbypackage limitation was broken by such conscious recklessness as to the probabledamage. The Court held that in such circumstances, "The defendant cannot rely on thepackage limitation clauses in either the Hague Rules or the Hague-Visby Rules."(137)

Art. 4(5)(e) of the Hague/Visby Rules does not expressly mention the servants andagents of the carrier, but refers only to the carrier itself. This has led to two early (and Ibelieve erroneous) decisions holding that art. 4(5)(e) applies only to acts or omissions ofthe carrier (and not of its servants or agents), except in so far as such employees of thecarrier are to be regarded as constituting part of its alter ego.(138) If this interpretationbe correct, only the acts or omissions of senior employees of the carrier, who could besaid to be part of the carrier's "directing mind and will" (and not those of the carrier'sofficers, crewmembers or other servants), could then be invoked to break the carrier'spackage/kilo limits of liability. Apart from being contrary to common sense, andincompatible with the general legal principle of respondeat superior, this interpretationonly serves to invite carriers to be negligent in supervising their servants and agents, tothe detriment of cargo interests. One can therefore only applaud the holding of Ellis J. ofthe High Court of New Zealand in The Pembroke,(139) who stoutly resisted thisargument in holding the carrier liable without limitation for the recklessness of its masterin exposing the printing press to the fury of the winds and waves on the ship's deck withknowledge of the likelihood of ensuing harm.

The matter is not free from doubt, however, and a number of reputable scholars supportthe view that only the carrier's intentional or reckless acts or omissions, and not those ofits servants or agents, are contemplated by art. 4(5)(e).(140)

 

IX. The Hamburg Rules

1) Introduction

Deck cargo is regulated in the Hamburg Rules(141) with even less precision than theHague/Visby Rules, so that most of the problems of the past relating to deck carriageremain unresolved.(142)

2) Right to Carry on Deck

The carrier may carry goods on deck when:

a) there is an agreement with the shipper as per art. 9(2) and a statement of the existenceof such an agreement has been inserted in the bill of lading (arts. 9(l) and 9(2) and15(l)(m)); or

b) there is a usage or custom to carry on deck (art. 9 (1));(143) or

c) there are regulations imposing deck carriage;(144) or

d) there is an agreement to carry on deck and there is no statement in the bill of ladingthat the goods may be carried on deck. In such circumstances the carrier may still carrythe goods on deck without violating the Rules providing he can prove that there was anagreement. The carrier may not make such proof, however, "against a third partyincluding a consignee who has acquired the bill of lading in good faith." (art. 9(2)).

3) "Agreement" and "Statement"

The Hamburg Rules are vague as to the meaning of the word "agreement" in arts. 9(l),(2) & (3). Does it mean a general liberty clause? One would expect not in the light ofHague Rules jurisprudence, but art. 15(1)(m) of Hamburg suggests that an "agreement"may indeed include a general liberty clause when it stipulates "the statement, ifapplicable, that the goods shall or may be carried on deck." (Emphasis added.) This leadsto the conclusion that the agreement need only be an option much like a general libertyclause. The use of the words "express agreement" in art. 9(4) also leads one to believethat the word "agreement" in arts. 9(l), (2) and (3) encompasses an option or generalliberty clause in the bill of lading.

The meaning of "statement" in art. 9(2) is even more disquieting. It need not state thatthe goods actually are carried on deck as in the Hague and Hague/Visby Rules, but onlythat there is an agreement that they be so carried. Nor need the statement be firm, butapparently need only state that the goods "may" be carried on deck. (See art. 15(l)(m)).

4) The sanction

The sanction for unagreed and unstated deck cargo is the loss of the package and kilolimitation of art. 6:

(i) if the loss arose "solely from the carriage on deck" (art. 9(2)); and

(ii) if the deck carriage was done "with the intent to cause such loss, damage, or delay orrecklessly and with knowledge that such loss, damage or delay would probably result."

(art. 9(3)).

Nota bene:

If deck carriage and similar reckless acts done with intent to cause damage lose thepackage or kilo limitation under the Hamburg Rules, normal fundamental breach(without intent to cause damage but only intent to do the act) continues to result in theloss of the other defences and exceptions of the carrier, including the time for bringingsuit, and the defence of having taken all reasonable measures.

5) Express agreement"

Art. 9(4) refers to an "express agreement for carriage under deck" and only then is theredeemed to be a violation by the carrier and a presumption (not absolute) against himwithin the meaning of art. 8.

1.

1 Lossiebank (Massce & Co. Inc. v. Bank Line) 1938 AMC 1033 (Sup. Ct. of Cal. 1938):It was held that stowage of cargo in the ship's hospital, a steel structure on deck havingheavy wooden doors two inches or more thick, which were damaged by a hurricane, wasproper under-deck stowage.

2.

2 T. Roberts & Co. v. Calmar S.S. Corp. 59 F. Supp. 203 at p. 209, 1945 AMC 375 atpp. 384-385 (E.D. Pa. 1945): "The description 'clean' bill of lading, in general, importsthat the goods are to be safely and properly secured under deck. However, broadlyspeaking, it may be said that a 'clean' bill of lading is one which contains nothing in themargin qualifying the words of the bill of lading itself." See also Royal ExchangeShipping Co. Ltd. v. WJ. Dixon & Co. (1886) 12 App. Cas. 11 (H.L.), where a bill oflading without any notation was held to have the same meaning as a bill of lading marked"under deck". See also Schooner St. Johns N.F. (St. Johns N.F Shipping Corp. v. S.A.Comp. Geral) 263 U.S. 119 at p. 124, 1923 AMC 1131 at pp. 1132-1133 (1923); Jones v.Flying Clipper 116 F. Supp. 386 at p. 387, 1954 AMC 259 at p. 260 (S.D. N.Y. 1953);Encyclopaedia Britannica Inc. v, S.S. Hong Kong Producer 422 F.2d 7 at p. 14, 1969AMC 1741 at pp. 1751-52, [1969] 2 Lloyd's Rep. 536 at p. 542 (2 Cir. 1969). cert.denied, 397 U.S. 964, 1971 AMC 813 (1970); Calmaquip Engineering v. West CoastCarriers 650 F.2d 633 at p. 638-39, 1984 AMC 839 at p. 846 (5 Cir. 1981); Du Pont deNemours International v. S.S. Mormacvega 493 F.2d 97 at p. 103, 1974 AMC 67 at p. 75(2 Cir. 1974). See also Electro-Tec Corp. v. S.S. Dart Atlantica 598 F. Supp. 929 at p.931, 1985 AMC 1606 at p. 1607 (D. Md. 1984) where the Court noted: "Nor did theenactment of COGSA alter this rule. 46 U.S. Code sect. 1301(c)." See also Hojgaard &Schultz A/S v. Transamerican S.S. Corp. 590 F. Supp. 916 at p. 921, 1985 AMC 2129 atp. 2133 (S.D. N.Y. 1984): " A clean bill of lading that does not specify on deck shipmentis legitimately understood by the shipper as 'importing under deck stowage'.", aff'd 762F.2d 990, 1985 AMC 2408 (2 Cir. 1985); Seguros Banvenez, S.A. v. S/S Oliver Drescher761 F.2d 855 at p. 859, 1985 AMC 2168 at p. 2173 (2 Cir. 1985); English Electric ValveCo. v. M/V Hoegh Mallard 814 F.2d 84 at p. 89, 1987 AMC 1351 at p. 1359 (2 Cir.1987); Ingersoll Milling Machine Co. v. M/V Bodena 829 F.2d 293 at pp. 299 and 303-304, 1988 AMC 223 at pp. 231 and 238-239 (2 Cir. 1987), cert. denied 484 U.S. 1042,1988 AMC 2399 (1988); Constructores Tecnicos, S. de R.L. v. Sea-Land Service, Inc.945 F.2d 841 at p. 845, 1992 AMC 1284 at p. 1290 (5 Cir. 1992); ETS Gustave Brunet,S.A. v. M.V. Nedlloyd Rosario 929 F. Supp. 624 at p. 703, 1997 AMC 803 at pp. 815-816

(S.D. N.Y. 1996); Great American Ins. Cos. v. M/V Romeral 962 F. Supp. 86 at p. 87,1997 AMC 2431 at pp. 2431-32 (E.D. La. 1997). See also Hof van Cassatie van België,December 1, 2000 (The OOCL Europe V), [2001] ETL 185.

3.

3 Gould v. Oliver (1837) 132 E.R. 740; Schooner St. Johns N.F. (St. Johns N.F. ShippingCorp. v. S.A. Comp. Geral) 263 U.S. 119 at p. 124, 1923 AMC 1131 at pp. 1132-33(1923).

4.

4 It is true that the U.S. Court of Appeals has alluded to the custom to carry on deck (inmy view erroneously), but found that proof of custom had not been made by the carrier.See Encyclopaedia Britannica v. Hong Kong Producer 422 F.2d 7 at p. 17, 1969 AMC1741 at p. 1755-56, [1969] 2 Lloyd's Rep. 536 at p. 544 (2 Cir. 1969), cert. denied, 397U.S. 964, 1971 AMC 813 (1970). See also Sealane (Searoad Shipping Company v. E.I.duPont de Nemours) 361 F.2d 833 at p. 835, 1966 AMC 1405 at p. 1408 (5 Cir. 1966). Inboth cases, Schooner St. Johns N.F. Shipping Corp. v. S.A. Comp. Geral, ibid., was reliedon improperly. See also the reference to custom in Seguros Banvenez, S.A. v. S/S OliverDrescher 761 F.2d 855 at p. 859, 1985 AMC 2168 at p. 2173 (2 Cir. 1985); EnglishElectric Valve Co. v. M/V Hoegh Mallard 814 F.2d 84 at p. 89, 1987 AMC 1351 at p.1359 (2 Cir. 1987). In O'Connell Machinery Company Inc. v. Americana 797 F.2d 1130at p. 1135, 1986 AMC 2822 at p. 2828 (2 Cir. 1986), the Second Circuit held that a verylarge flat rack container could be carried on deck without a declaration to that effect,because there was strong evidence that it was customary to so carry in the Italian port ofloading and there was no evidence that such carriage was unreasonable. The Court notedthat in any event there was no causal connection between the deck carriage and thedamage and added: "We hasten to note, however, that our opinion in this case does notnecessarily approve deck stowage of similar cargo in other cases." See also NeuenbergerSchweizerische Allgemeine Versicherungs-Gesellschaft v. S.S. Aldebaran 1990 AMC1886 at pp. 1892-1893 (S.D. N.Y. 1989); Constructores Tecnicos, S. de R.L. v. Sea-LandService, Inc. 945 F.2d 841 at p. 845, 1992 AMC 1284 at p. 1290 (5 Cir. 1992); GreatAmerican Ins. Co. v. M/V Romeral 962 F. Supp. 86, 1997 AMC 2431 (E.D. 1997) (portcustom of deck stowage not proven).

5.

5 See, for example, T. Schoenbaum, Admiralty and Maritime Law, 2 Ed., vol. 2, 1994, atp. 87 (although he admits that U.S. courts are "...very reluctant to find a trade custom ofon deck stowage... and even if it is proved that the type of cargo involved is frequently ora majority of the time stowed on deck will not be enough)", citing Seguros Banvenez, S.a.v. S/S Oliver Drescher 761 F.2d 855, 1985 AMC 2168 (2 Cir. 1985); EncyclopaediaBritannica v. Hong Kong Producer 422 F.2d 7, 1969 AMC 1741, [1969] 2 Lloyd's Rep.536 (2 Cir. 1969) and Hojgaard & Schultz A/S v. Transamerican S.S. Corp 590 F. Supp.916, 1985 AMC 2129 (S.D. N.Y. 1984), aff'd 716 F.2d 990, 1985 AMC 2408 (2 Cir.1985), and commenting (at p. 87, note 14) that: "Habit is not equated with custom in suchcases" .See also Scrutton, 20 Ed., 1996 at p. 168; Wilson, 4 Ed., 2001 at p. 183, whoclaims that it is customary to ship certain types of goods on deck, such as "..timber,certain types of inflammable or other dangerous goods and, more importantly, containerscarried on a specially designed container ship."

6.

6 This position has also been taken in Canada. See Guadano v. S.S. Cap Vincent [1973]F.C. 726 at pp. 732-733 (Fed. C. Can.), citing Carver, Carriage by Sea, 12 Ed., London,1971, vol. 2 at p. 604.

7.

7 See, for example, Ingersoll Milling Machine Co. v. M/V Bodena 829 F.2d 293 at p.299, 1988 AMC 223 at p. 231 (2 Cir. 1987), cert. denied 484 U.S. 1042, 1988 AMC 2399(1988); ETS Gustave Brunet, S.A. v. M.V. Nedlloyd Rosario 929 F. Supp. 694 at p. 703,1997 AMC 803 at p. 816 (S.D. N.Y. 1996).

8.

8 153 F.3d 1076 at p. 1078, 1998 AMC 2705 at p. 2707 (9 Cir. 1998).

9.

9 See also English Electric Valve Co. v. M/V Hoegh Mallard 814 F.2d 84 at p. 89, 1987AMC 1351 at p. 1359 (2 Cir. 1987), cited in Neuenberger Schweizerische AllgemeineVersicherungs-Gesellschaft v. S.S. Aldebaran 1990 AMC 1886 at p. 1891 (S.D. N.Y.1989) and in Alternative Glass Supplies v. M/V Nomzi 1999 AMC 1080 at p. 1086 (S.D.N.Y. 1999): "... absent an agreement or an established custom from which consent of theshipper for on-deck stowage may be imputed, a clean bill of lading imports stowagebelow deck."

10.

10 Ingersoll Milling Machine Co. v. M/V Bodena, ibid., F.2d at p. 299, AMC at p. 231:"The burden is on the carrier to prove that the shipper consented to something other thanthe usual and customary arrangement"; Gemini Navigation, Inc. v. Philipp Bros. Div. ofMinerals & Chemicals Philipp Corp. 409 F.2d 745 at p. 751, 1974 AMC 1122 at pp.1127-28 (2 Cir. 1974).

11.

11 Ingersoll Milling Machine Co. v. M/V Bodena, ibid., F.2d at pp. 300-301, AMC at p.233. See also Grace Plastics Ltd. v. The Bernd Wesch II [1971] F.C. 273 at p. 283 (Fed.C. Can.): "... the contract of carriage... cannot be taken to have been changed byadditional clauses added to the Bill of Lading that was issued after the ship sailed." Seealso Sheerwood v. The Lake Eyre [1970] Ex. C.R. 672 at p. 676 (Ex. C. Can.); A.R.Kitson Trucking Ltd. v. Rivtow Straits Ltd. [1975] 4 W.W.R. 1 at p. 10 (B.C. S.C.).

12.

12 See, for example, Hojgaard & Schultz v. Transamerican S.S. Corp. 590 F. Supp. 916at p. 921, 1985 AMC 2129 at pp. 2133 and 2134 (S.D. N.Y. 1984), aff'd 762 F.2d 990,1985 AMC 2408 (2 Cir. 1985), where a booking note provided in typed words "underdeck bill of lading" immediately preceding the printed words: "Under Deck/On Deck".The Court held this ambiguous wording insufficient to rebut the presumed on-deckconnotation of a clean bill of lading. In addition, "express agreement" to deck carriagehad to be found in the bill of lading, and not in a separate freight agreement such as abooking note.

13.

13 English Electric Valve Co., Ltd. v. M/V Hoegh Mallard 814 F.2d 84 at p. 89, 1987AMC 1351 at p. 1359 (2 Cir. 1987); Morrow Crane Co. v. Affiliated FM Insurance Co885 F.2d 612 at p. 614, 1990 AMC 601 at p. 603 (9 Cir. 1989).

14.

14 Strachan Shipping Co. v. Dresser Industries, Inc. 701 F.2d 483 at p. 487, 1984 AMC237 at p. 242 (5 Cir. 1983), noting that 46 U.S.C. sect. 841b, permitting a carrier tocompensate a freight forwarder, is "an express recognition of the fact that the forwarderperforms services beneficial to the carrier." The same decision (F.2d at pp. 487-488,AMC at p. 243) also notes that many of the tasks performed by forwarders benefit boththe shipper and the carrier.

15.

15 Strachan Shipping Co. v. Dresser Industries, Inc., ibid., F.2d at pp. 488-489, AMC atp. 245; Farrell Lines, Inc. v. Titan Industrial Corp. 306 F. Supp. 1348 at p. 1350, 1969AMC 1412 at p. 1414 (S.D. N.Y. 1969), aff'd 419 F.2d 835, 1969 AMC 2503 (2 Cir.1969), cert. denied, 397 U.S. 1042, 1971 AMC 813 (1970); Constructores Tecnicos, S. deR.L. v. Sea-Land Service, Inc. 945 F.2d 841 at p. 848, 1992 AMC 1284 at pp. 1294-1295(5 Cir. 1992).

16.

16 Strachan Shipping Co. v. Dresser Industries, Inc. 701 F.2d 483 at p. 488, 1984 AMC237 at p. 244 (5 Cir. 1983); Constructores Tecnicos, S. de R.L. v. Sea-Land Service, Inc.945 F.2d 841 at p. 846, 1992 AMC 1284 at pp. 1291-1292 (5 Cir. 1992).

17.

17 See Grace Plastics Ltd. v. The Bernd Wesch II [1971] F.C. 273 at pp. 282-283 (Fed.C. Can.), where the acquiescence of a forwarder's agent to deck carriage of certainequipment, contrary to the original contract of carriage, was not determinant, nostatement of their carriage on deck having been inserted in the bill of lading beforeshipment. On the other hand, the agent's acquiescence to deck carriage was binding onthe plaintiff in respect of two reactors which were expressly stated in the bill as beingcarried on deck and were so carried. See ibid. at p. 280.

18.

18 Especially equipped or especially built containers ships do not necessarily meansafety for the deck cargo or even stability or seaworthiness of the vessel. Problemsarising from containers are due to the large cubic space they occupy as compared withtheir weight and the weight of their contents. A container ship has in consequence a highcentre of gravity so that it is not unusual for containers on top to slide overboard. Besides,it is the containers on deck which are usually stove in by storms or their contents areotherwise damaged or wetted. Large high automobile ships incidentally are the answerfor the carriage of automobiles, because of the same problem.

19.

19 Art. 22 of Law No. 66-420 of June 18, 1966 as amended by Law No. 79-1103 ofDecember 21, 1979. The internal law of France has no equivalent of art. 1(c) of the

Hague Rules.

20.

20 United Nations Convention on the Carriage of Goods by Sea, 1978, signed atHamburg on March 31, 1978, and in force November 1, 1992.

21.

21 See, for example, Guadano v. S.S. Cap Vincent [1973] F.C. 726 at p. 734 (Fed. C.Can.), holding that: "... in modern ships built or reconstructed to carry containers on deck,a 'usual carrying place' on such ship is on the ship's deck."

22.

22 See, for example, Insurance Company of North America v. Blue Star, Ltd. 1997AMC 2434 at pp. 2443-2444 (S.D. N.Y. 1997); Konica Business Machines, Inc. v. Sea-Land Consumer 47 F.3d 314 at p. 316, 1995 AMC 1065 at p. 1068 (9 Cir. 1995), onremand, 1996 AMC 1761 at p. 1763 (C.D. Cal. 1996), aff'd Konica Business Machines,Inc. v. Sea-Land Consumer 153 F.2d 1076 at p. 1078, 1998 AMC 2705 at p. 2708 (9 Cir.1998); Alternative Glass Supplies v. M/V Nomzi 1999 AMC 1080 at p. 1086 (S.D. N.Y.1999); Deltamax Freight System v. M/V Aristotelis 1999 AMC 1789 at pp. 1795-1796(C.D. Cal. 1998).

23.

23 Du Pont de Nemours Int'l S.A. v. S.S. Mormacvega 493 F.2d 97 at p. 102, 1974 AMC67 at p. 75 (2 Cir. 1974). See also Neuenberger Schweizerische AllgemeineVersicherungs-Gesellschaft v. S.S. Aldebaran 1990 AMC 1886 at p. 1891, note 4; (S.D.N.Y. 1989) Insurance Company of North America v. Blue Star, Ltd. 1997 AMC 2434 atpp. 2441-2443 (S.D. N.Y. 1997); Konica Business Machines, Inc. v. Sea-Land Consumer,153 F. 3d 1076 at p. 1078, 1998 AMC 2705 at p. 2708 (9 Cir. 1998); Alternative GlassSupplies v. M/V Nomzi 1999 AMC 1080 at p. 1087 (S.D. N.Y. 1999). See alsoChristopher Hill, Maritime Law, 5 Ed., LLP Limited, London and Hong Kong, 1998 at p.195.

24.

24 See, for example, Du Pont de Nemours Int'l S.A. v. S.S. Mormacvega 493 F.2d 97 atp. 102, 1974 AMC 67 at p. 74 (2 Cir. 1974); English Electric Valve Co. v. M/V HoeghMallard 814 F.2d 84 at p. 89, 1987 AMC 1351 at p. 1360 (2 Cir. 1987); Konica BusinessMachines, Inc. v. Sea-Land Consumer 153 F.3d 1076 at p. 1078, 1998 AMC 2705 at p.2708 (9 Cir. 1998). But see also Great American Ins. Cos. v. M/V Romeral 962 F. Supp.86 at p. 88, 1997 AMC 24312 at p. 2433 (E.D. La. 1997), finding no evidence thatstowing oversized equipment on flatracks on deck was safer than under-deck stowage,nor that any special circumstances necessitated such stowage.

25.

25 Neuenberger Schweizerische Allgemeine Versicherungs-Gesellschaft v. S.S.Aldebaran 1990 AMC 1886 at p. 1893 (S.D. N.Y. 1989): "...the question of thereasonableness of the deviation is one of fact which must be determined at trial."

26.

26 I.N.A. v. Dart Containerline. 629 F. Supp. 781 at p. 786, 1987 AMC 42 at p. 49 (E.D.Va. 1985); O'Connell Machinery Co. v. M/V Americana 797 F.2d 1130 at p. 1135, 1986AMC 2822 at p. 2829 (2 Cir. 1986); Neuenberger Schweizerische AllgemeineVersicherungs-Gesellschaft v. S.S. Aldebaran 1990 AMC 1886 at p. 1893 (S.D. N.Y.1989).

27.

27 See, for example, Neuenberger Schweizerische Allgemeine Versicherungs-Gesellschaft v. S.S. Aldebaran 1990 AMC 1886 at pp. 1891, note 4 (S.D. N.Y. 1989),where the Court, while admitting that "in recent years", the Second Circuit had "movedaway from a rigid application of the rule of unreasonable deviation with respect to deckstowage of containerized cargo on container vessels", also noted that "it remains the lawthat, absent a custom or contract to the contrary, a clean bill of lading imports under deckstowage". In consequence, such carriage remained a "deviation", although a deviation"not per se unreasonable". Hence it became necessary, where there was a factual issueregarding the terms of the contract of carriage, to determine first whether, under thecontract, a deviation had occurred, before reaching the question of the reasonableness ofthe deviation.

28.

28 See, for example, General Motors Corp. v. Moore-McCormack Lines, Inc. 451 F.2d24 at p. 25, note 1, 1971 AMC 2408 at p. 2409, note 1 (2 Cir. 1971); General Electric Co.v. M/V Lady Sophie 458 F. Supp. 620 at p. 622, 1979 AMC 724 at p. 727 (S.D. N.Y.1978); North River Ins. v. Federal Sea/Fed. Pac. Line 647 F.2d 985 at p. 987, 1982 AMC2963 at p. 2965 (9 Cir. 1981), cert. denied 455 U.S. 948, 1982 AMC 2110 (1982);Institute of London Underwriters v. Sea-Land Service, inc 881 F.2d 761 at pp. 765-766,1989 AMC 2516 at pp. 2520-2522 (9 Cir. 1989); Royal Insurance Co. v. Sea-LandService, Inc. 50 F.3d 723 at p. 727, 1995 AMC 1189 at p. 1192 (9 Cir. 1993); GeneralElectric Co. v. Inter-Ocean Shipping 862 F. Supp. 166 at p. 168, 1995 AMC 871 at p.874 (S.D. Tex. 1994). For Canada, see Power Construction Ltd. v. Canadian NationalRailway Co. (1984) 48 Nfld. & P.E.I.R. 271 at p. 273, 142 A.P.R. 271 at p. 273 (Nfld.C.A.).

29.

29 General Electric Co. v. Inter-Ocean Shipping, ibid., F.2d at p. 168, AMC at p. 874.

30.

30 See, for example, Institute of London Underwriters v. Sea-Land Service, Inc. 881F.2d 761 at p. 764, 1989 AMC 2516 at p. 2520 (9 Cir. 1989); Saint Paul Fire & MarineIns. Co. v. Sea-Land Service, Inc. 745 F. Supp. 186 at p. 188, 1991 AMC 523 at p. 524(S.D. N.Y. 1990); Sail America Foundation v. M.V. T.S. Prosperity 778 F. Supp. 1282 atp. 1285, 1992 AMC 1617 at p. 1621 (S.D. N.Y. 1991).

31.

31 Aetna Ins. Co. v. Carl Matusek Shipping Co., 1956 AMC 400 (S.D. Fla. 1955): Theone-year time limit under COGSA was held inapplicable in this case of deck carriagewhere the bill of lading noted that the cargo was loaded on deck. Suit brought 14 monthsafter delivery was held to be valid. Export Project Services v. S. S. Steinfels, 1975 AMC

765 (S.D.N.Y. 1975): Cargo was carried on deck and so described on the bill of lading. Inconsequence, COGSA did not apply ex proprio vigore, but was merely incorporated asone of the terms of the contract. General Electric Co. v. Inter-Ocean Shipping 862 F.Supp. 166 at p. 168, 1995 AMC 871 at pp. 873-874 (S.D. Tex. 1994): COGSA did notapply ex proprio vigore to three of four bills of lading which expressly mentioning on-deck stowage on their faces, but did apply as a contractual term through incorporationinto the printed terms of all three bills; Grace Plastics Ltd. v. The Bernd Wesch II, [1971]F.C. 273 (Fed. C. Can.): Cargo which the contract of carriage stated as being carried ondeck was not subject to the Hague Rules, whereas cargo which was in fact carried ondeck, though the contract of carriage stated that it would be carried under deck, wassubject to the Rules (pp. 282-283). See also Cour dAppel de Paris, October 1, 1986,DMF 1987, 431 at p. 436; Cour dAppel de Rouen, October 14, 1980, DMF 1981, 106;H.B. Contracting Ltd. v. Northland Shipping (1962) Co. Ltd. (1972) 24 D.L.R. (3d) 209;Svenska Traktor Aktiebolaget v. Maritime Agencies (Southampton), [1953] 2 Lloyd'sRep. 124 at p. 130. See however, Shaw, Savill & Albion Co. v. Electric Reduction SalesCo. (The Mahia), [1955] 1 Lloyd's Rep. 264 at p. 266, [1955] R.L. 393 at p. 397(Québec).

32.

32 Grace Plastics Ltd. v. The Bernd Wesch II [1971] F.C. 273 at p. 284 (Fed. C. Can.);Belships (Far East) Shipping (Pte.) Ltd. v. Canadian Pacific Forest Products Limited -Tahsis Pacific Region 1999 AMC 2606 at p. 2615 (Fed. C.A. 1999).

33.

33 Ponce, 67 F. Supp. 725, 1946 AMC 1124 (D. NJ. 1946) where goods are shipped ondeck at shipper's risk, the carrier is not relieved of due care and attention towards thecargo. See also Cour d'Appel d'Aix, March 13, 1980, DMF 1980, 656. See also under theprevious law: Cour d'Appel d'Aix, March 29, 1960, DMF 1961, 525; Cour d'Appel d'Aix,March 27, 1952, DMF 1952, 413: Cour d'Appel de Paris, December 1, 1952, DMF 1953,130. See also Power Construction v. C.N.R. (1983) 41 Nfld. & P.E.I.R. 99, 119 A.P.R.99.

34.

34 46 U.S. Code sects. 190-196.

35.

35 1946 AMC 674 at p. 680 (E.D. Pa. 1946); Blanchard Lumber Co. v. S.S. Anthony II,259 F. Supp. 857 at pp. 866-76, 1967 AMC 103 at p. 117, [1966] 2 Lloyd's Rep. 437 at p.445 (S.D. N.Y. 1966). Lumber was carried under a bill of lading which noted on its facethat the cargo would be on deck. "The fact, then, that the libellants' lumber was deckcargo does not bar recovery. The clauses in the bills of lading which purport to state thatdeck cargo is carried at shipper's risk do not relieve the carrier or carriers in this casefrom a duty to stow the cargo with due care." The Harter Act was applied in this carriagefrom Canada to the United States. Hartford Fire Ins. v. Calmar S.S. Corp., 404 F. Supp.442, 1976 AMC 2636 (W.D. Wa. 1975): The clause "on deck at shipper's risk" did notrelieve the carrier from the duty of exercising due diligence as to seaworthiness whereCOGSA was incorporated by reference in a U.S. intercoastal shipment.

36.

36 St-Simeon Navigation Inc. v. A. Couturier & Fils Ltée (1974) 44 D.L.R. (3d) 478 at p.480 (Supr. C. of Can.); Svenska Traktor Aktiebolaget v. Maritime Agencies(Southampton) Ltd., [1953] 2 Lloyd's Rep. 124 at pp. 129-130; English Electric ValveCo. v. Hoegh Mallard, 814 F.2d 84 at p. 89, 1987 AMC 1351 at p. 1359 (2 Cir. 1987);Ingersoll Milling Machine Co. v. M/V Bodena 829 F.2d 293 at p. 301, 1988 AMC 223 atp. 234 (2 Cir. 1987), cert. denied 484 U.S. 1042, 1988 AMC 2399 (1988); NeuenbergerSchweizerische Allgemeine Versicherungs-Gesellschaft v. S.S. Aldebaran 1990 AMC1886 at p. 1890 (S.D. N.Y. 1989); Great American Ins. Cos. v. M/V Romeral 962 F.Supp. 86 at p. 88, 1997 AMC 2431 at p. 2433 (E.D. La. 1997).

37.

37 422 F.2d. 7, 1969 AMC 1741, [1969] 2 Lloyd's Rep. 536 (2 Cir. 1969); see also HatoLa Vergarena C.A. v. S.S. Susaa, 1973 AMC 195 (S.D. N.Y. 1972) where the carrier lostthe benefit of the presumption under COGSA at sect. 3(6) that the cargo was delivered bythe carrier in good order if the cargo interests do not give notice of damage within 3 daysbecause of unauthorized deck carriage. Lime Intl. Corp. v. Alpha N.A. Line, 1979 AMC2693 (S.D. N.Y. 1979) is a case where the booking note provided for carrier's option toload on deck. The bill of lading contained only a general deck cargo clause but nostatement that the cargo would actually be carried on deck. This was deemed to be anunreasonable deviation, following Encyclopaedia Britannica, supra. See also Hof vanBeroep te Antwerpen, May 2, 1983, 1984 ETL 503.

38.

38 Sealane (Searoad Shipping Co. v. E.I. duPont de Nemours), 361 F.2d 833 at P. 838,1966 AMC 1405 at p. 1412 (5 Cir. 1966).

39.

39 650 F.2d 633, 1984 AMC 839 (5 Cir. 1981).

40.

40 945 F.2d 841, 1992 AMC 1284 (5 Cir. 1992).

41.

41 Jones v. Flying Clipper, 116 F. Supp. 386, 1954 AMC 259 (S.D. N.Y. 1953): Thecarrier issued a clean bill of lading, but nevertheless stowed the goods on deck. This washeld to be an unjustifiable deviation and, consequently, the defences in the bill of ladingdid not apply and nor did the limitation per package of COGSA. Sealane (SearoadShipping Co. v. E.I. duPont de Nemours), 361 F.2d 833 at p. 838, 1966 AMC 1405 at p.1412 (5 Cir. 1966): "There being no legal justification for this on-deck stowage of cargoshipped pursuant to an under-deck clean bill of lading, this stowage amounted to adeviation casting the shipowner for the loss which was directly and causally related to thedeck stowage." Thus the Coast Guard Regulations as to the stowage of explosives,approving stowage on deck, did not displace the basic contract clauses of the bill oflading. Espa (State Motors Inc. v. S.S. Espa), 1967 AMC 1447 (S.D. Ga. 1966): The billof lading for a cargo of 50 Volkswagen automobiles carried the endorsement "stowedunder deck"; 35 of the automobiles were stowed on deck and, consequently, sustainedrust damage during the transatlantic voyage. The Court held that: the ocean carrier brokeits contract by stowing the cars on deck and became liable for any damage to the carsresulting from this breach. Calmaquip v. West Coast Carriers Ltd., 650 F.2d. 633 at p.

639, 1984 AMC 839 at p. 844 (5 Cir. 1981); Nemeth v. General S.S. Corp., 694 F.2d. 609at pp. 612-613, 1983 AMC 885 at pp. 888-891 (9 Cir. 1982). Encyclopaedia Britannica v.Hong Kong Producer, 422 F.2d 7, 1969 AMC 1741, [1969] 2 Lloyd's Rep. 536 (2 Cir.1969): unstated deck carriage deprived the carrier of the $500 per package limitation.Cour de Cassation, July 18, 1984, DMF 1985, 210; Cour de Cassation de Belgique, May25, 1979, [1980] ETL 175. See also I.N.A. v. Dart Containerline, 629 F. Supp. 781, 1987AMC 42 (E.D. Va. 1985) where undeclared carriage of a container on deck lost thecarrier the benefit of art. 3(6) "notice of damage".

42.

42 Du Pont de Nemours Intl. v. S.S. Mormacvega, 493 F.2d 97 at pp. 102-03, 1974 AMC67 at pp. 73-75, [1974] 1 Lloyd's Rep. 296 at p. 300 (2 Cir. 1974); Rosenbruch v.American Export Isbrandtsen Lines, 543 F.2d 967 at p. 971, 1976 AMC 487 at pp. 492-493 (2 Cir. 1976). Grace Plastics Ltd. v. The Bernd Wesch II, [1971 1 F.C. 273 at p. 291(Fed. C. Can.); Sept-Iles Express Inc. v. Clément Tremblay, [1964] Ex. C.R. 213;Francosteel Corp. v. NIV Nederlandsch, 1967 AMC 2440 (Ct. of App., Cal. 1967) cert.denied 389 U.S. 931 (1967); Taisho Marine v. Sea-Land Endurance, 815 F.2d 1270,1987 AMC 1730 (9 Cir. 1987): this peculiar decision does not explain how COGSAapplied to deck carriage and if the bills of lading stated that the containers were carriedon deck.

43.

43 Electro-Tec Corp. v. S.S. Dart Atlantica, 598 F. Supp. 929 at pp. 933-34, 1985 AMC1606 at pp. 1610-1613 (D. Md. 1984) relying on Du Pont de Nemours Intl. v. S.S.Mormacvega, supra. See also Insurance Company of North America v. Blue Star, Ltd.1997 AMC 2434 at pp. 2441-2443 (S.D. N.Y. 1997); Konica Business Machines, Inc. v.Sea-Land Consumer, 153 F. 3d 1076 at p. 1078, 1998 AMC 2705 at p. 2708 (9 Cir.1998); Alternative Glass Supplies v. M/V Nomzi 1999 AMC 1080 at p. 1087 (S.D. N.Y.1999). Another sophistic argument alluded to in Electro Tec Corp., 598 F. Supp. at p.934, AMC at p. 1612 is based on the historical fact that COGSA was "designed to be afair balance between the interests of the shipper and the carrier." That fact does notpermit the Courts, however, to alter the balance as defined in COGSA and to alter themeaning of the word "stated". COGSA has set the balance; the Courts' duty is to applyCOGSA. A court can interpret "due diligence to make the ship seaworthy" in the light ofmodern science and knowledge, but it cannot contradict the words "is stated as beingcarried on deck" by any interpretation or reliance on the historic balance.

44.

44 Texas Petroleum Corp. v. S. S. Margaret Lykes & Ulua, 57 F. Supp. 466, 1944 AMC1128 (E.D. La. 1944). See Chap. 4 "Superseding Clauses", supra. See also Chester v.Maritima Del Litoral, 585 F. Supp. 192, 1985 AMC 2831 (E.D. Wis. 1983 & 1984), aHarter Act case where the shipper knew that no underdeck stowage was available

45.

45 Colonial Yacht Harbour Ltd. v. The Octavia, [1980] 1 F.C. 331 at p. 338.

46.

46 For an example of a typical liberty to carry on deck clause, see Belships (Far East)Shipping (Pte.) Ltd. v. Canadian Pacific Forest Products Limited - Tahsis Pacific Region

1999 AMC 2606 at p.2612 (Fed. C.A. 1999), where, however, the Hague Rules did notapply because the face of the bills of lading stated that the timber cargo was carried ondeck and it was so carried. See also ETS Gustave Brunet, S.A. v. M.V. Nedlloyd Rosario929 F. Supp. 694 at p. 704, 1997 AMC 803 at p. 816 (S.D. N.Y. 1996).

47.

47 As in the Belships decision, supra, AMC at p. 2615.

48.

48 See Svenska Traktor Aktiebolaget v. Maritime Agencies (Southampton) Ltd. [1952] 2Lloyd's Rep. 124 at p 130, Grace Plastics Ltd. v. The Bernd Wesch II [1971] F.C. 273 atp. 283 (Fed. C. Can.); Ceramic Corp. of America v. Inka Maritime Corp., Inc. 1994 AMC1076, note 1 (C.D. Cal. 1993): "the Court finds no case law holding that the merepresence in a bill of lading of a clause giving the carrier the option of stowing cargo 'onor under deck without notice to the merchant' is, in and of itself, sufficient to (1) undercutex proprio vigore application of COGSA via the 1301 (c) exception...." See also GreatAmerican Ins. Cos. v. M/V Romeral 962 F. Supp. 86 at p 88, 1997 AMC 2431 at p. 2433(E.D. La. 1997).

49.

49 (1974) 44 D.L.R. (3d) 478 at p. 480, upholding [1970] Ex. C.R. 1012.

50.

50 [1989] 2 Lloyd's Rep. 494.

51.

51 Royal Exchange Shipping Co. Ltd. v. Dixon (1886) 12 App. Cas. 11 (H.L.); J. Evans& Sons (Portsmouth) Ltd. v. Andrea Merzario [1976] 2 Lloyd's Rep. 165 (C.A. per LordDenning M.R.); and Lord Wilberforc's references to deviation cases in Suisse Atlantique[1967] 1 A.C. 361 at p. 433, [1966] 1 Lloyd's Rep. 529 at p. 563 (H.L.).

52.

52 [1989] 2 Lloyd's Rep. 494 at p. 505.

53.

53 Ibid.

54.

54 Cour de Cassation, July 7, 1998 (The Atlantic Island), DMF 1998, 826, report J.-P.Rémery, observations by P. Bonassies, commentary by P. Bonassies, DMF Hors série no.3, 1999, no. 111 at p. 79.

55.

55 P. Bonassies, DMF 1998, 826 at p. 839.

56.

56 Hof van Cassatie van België, December 1, 2000, (The OOCL Europe V), [2001] ETL185.

57.

57 Belgium incorporated the Hague Rules 1924 into the Belgian Commercial Code by itslaw of November 28, 1928, in force January 22, 1929, which became art. 91 of Book II,Chapter III of the "Lois coordonnées". Belgium ratified the Hague Rules 1924 on June 2,1930 and also became party to the Visby Protocol 1968 by its law of August 28, 1978 andthe Visby S.D.R. Protocol 1979 by its law of August 17, 1983. But its internal law (art.91 of the Commercial Code) was amended to give effect to the Hague/Visby Rules1968/1979 only by the law of April 11, 1989.

58.

58 Hof van Beroep te Antwerpen, February 24, 1997 (The OOCL Europe V), [1997] ETL202 at p. 206 and Belgian Hof van Cassatie van België, December 1, 2000, [2001] ETL185. See also Hof van Beroep te Antwerpen, March 10, 1997 (The Anna Maersk), [1997]ETL 208 at p. 212, holding that the carrying of containers on deck without a declarationto that effect on the bill of lading is a violation of the Hague and Hague/Visby Rules anda fundamental breach of the contract of carriage. Both decisions cite the third edition ofthis book. See also Rechtbank van Koophandel te Antwerpen, November 28, 1983 (TheSunny Karina) 1983 DMF 782 But see also Rechtbank van Koophandel te Anwerpen,January 11, 1993, [1993] ETL 251, which appears to uphold deck carriage of containersaboard container vessels designed for that purpose, and declaring a clause in the bill oflading authorizing such carriage binding on the holder in due course of the bill.

59.

59 See Hojgaard & Schultz v. Transamerican S.S. Corp. 590 F. Supp. 916 at p. 921,1985 AMC 2129 at p. 2134 (S.D. N.Y. 1984), aff'd 762 F.2d 990, 1985 AMC 2408 (2Cir. 1985): "... it is insufficient for the bill of lading to state that the carrier has an optionto stow on deck; the bill of lading did not state 'that the cargo is being carried on deck'"(emphasis in original). See also I.N.A. v. Dart Containerline 629 F. Supp. 781 at p. 785,1987 AMC 42 at p. 47 (E.D. Va. 1985); English Electric Valve Co., Ltd. v. M/V HoeghMallard 814 F.2d 84 at p. 89, 1987 AMC 1351 at p. 1359 (2 Cir. 1987); NeuenbergerSchweizerische Allgemeine Versicherungs-Gesellschaft v. S.S. Aldebaran 1990 AMC1886 at p. 1892, note 5 (S.D. N.Y. 1989).

60.

60 263 U.S. 119, 1923 AMC 1131 (1923): After a freight reservation had been enteredinto, containing the term "on or under deck, ship's option", a clean bill of lading wasissued which did not contain a general liberty clause. The U.S. Supreme Court read thefreight reservation and the bill of lading together as the contract, and declared that thecarrier had had an option to carry on or under deck, but that the issuance by the ship of aclean bill of lading amounted to a positive representation that the option had beenexercised and that the goods would be under deck. (Misinterpretation of the facts of thisjudgment has been the cause of much confusion.) See also Encyclopaedia Britannica v. S.S. Hong Kong Producer, 422 F.2d 7 at p. 14, 1969 AMC 1741 at p. 1753 (2 Cir. 1969);Lime International v. Alpha N.A. Line, 1979 AMC 2693 at p. 2696 (S.D.N.Y. 1979);I.N.A. v. Dart Containerline 629 F. Supp. 781 at p. 785, 1987 AMC 42 at p. 47 (E.D.

Va.d 1985) (if on-deck stowage not noted on face of bill of lading, shipper is entitled toexpect below deck stowage notwithstanding fine print option clause on reverse side ofbill); Neuenberger Schweizerische Allgemeine Versicherungs-Gesellschaft v. S.S.Aldebaran 1990 AMC 1886 at p. 1891 (S.D. N.Y. 1989).

61.

61 See Burdines, Inc. v. Pan-Atlantic S.S. Corp. 199 F.2d 571 at p. 573, 1952 AMC1942 at p. 1944 (5 Cir. 1952); Chap. 4: "Interpretation of Bills of Lading and SupersedingClauses", supra.

62.

62 In Cour dAppel dAix, June 18, 1986, DMF 1986, 740, a clause in the bill of ladingstipulated that the carrier was authorized to stow cargo on deck without having to informthe shipper and that the latter's consent would be deemed to have been given. The Courtrecognized the validity of such a clause, but held that the carrier nevertheless had theobligation to inform the shipper as soon as possible once the cargo was actually stowedon deck. Furthermore, deck stowage in any case had to be mentioned on the bill of ladingin order for adequate insurance to be obtainable. See the critical note by R. Achard atDMF 1986, 743 and the critical comment by P. Bonassies in "Le droit positif français en1986", DMF 1987, at p. 82, no. 43. See also Cour de Cassation, December 16, 1965, JCP1966, 14634 with note by R. Rodière.

63.

63 [1932] A.C. 328 at p. 340, (1931) 41 Ll. L. Rep. 165 at p. 170 (H.L.).

64.

64 [1953] 2 Lloyd's Rep. 124 at p. 125.

65.

65 Ibid., at p. 130.

66.

66 St.-Simeon Navigation Inc. v. A. Couturier (1974) 44 D.L.R. (3d) 478 (Supr. C. ofCan.); Lime Intl. v. Alpha N.A. Line, 1979 AMC 2693 (S.D.N.Y. 1979).

67.

67 [1921] 3 K.B. 473, (1921) 8 Ll. L. Rep. 446 (the judgement begins at p. 497).

68.

68 24 F. Supp. 461,1938 AMC 1220 (W.D. Wa. 1938).

69.

69 263 U.S. 119, 1923 AMC 1131 (1923).

70.

70 91 F. Supp. 663, 1950 AMC 1235 (S.D.N.Y. 1950). The Court held that a oclean))bill of lading implied under-deck stowage only when there was no specific provision as tostowage. The general liberty to carry on deck clause was a specific provision as tostowage and thus the issuing of this bill did not imply under-deck stowage. The Courtadded that oclean)) meant that there was nothing in the margin of the bill to qualify itswording. The cargo claimant argued, unsuccessfully, though correctly, that a oclean)) billwas a bill with no qualifying notations and with no specific provision as to stowage; sincethe bill here had no such notations and since the general liberty clause was not a specificprovision as to stowage, the issue of its bill implied under-deck stowage.

71.

71 [1973] F.C. 726 at p. 732.

72.

72 858 F.2d 190 at p. 194, 1989 AMC 135 at p. 141 (4 Cir. 1988).

73.

73 Power Construction Ltd. v. Canadian National Railway Co. (1984) 48 Nfld. &P.E.I.R. 271 at p. 273, 142 A.P.R. 271 at p. 273 (Nfld. C.A.): "... unless specificpermission to carry the goods on deck is apparent on the face of the bill of lading, deckstowage is improper stowage under Article 3(2) of the [Hague] Rules which requires acarrier to stow properly."

74.

74 Alternatively, the carrier may prefer to incorporate the Rules by reference into the billof lading, expressly applying them to the deck cargo. See Power Construction Ltd. v.Canadian National Railway Co. (1984) 48 Nfld. & P.E.I.R. 271 at p. 273, 142 A.P.R.271 at p. 273 (Nfld. C.A.), involving deck carriage of a crane too large to beaccommodated elsewhere on the ship. Although no bill of lading was actually issued, onewas seemingly contemplated, so that the carriage was "covered" by a bill of lading. TheCourt held that if the bill had been issued, it would probably have noted the deck carriageon its face, thus making the Rules inapplicable by operation of law, but would haveprobably incorporated the Rules by reference, in accordance with the carrier's standardHague Rules bill of lading form, thus making them applicable by contract.

75.

75 1930 AMC 1743 at p. 1758, (1930) 38 Ll. L. Re. 22 at p. 30 (S.D. N.Y. 1930).

76.

76 See, for example, Royal Exchange Assurance of America, Inc. v. M/V Hoegh Dene1988 AMC 868 at p. 874 (W.D. Wash. 1987); Sail America Foundation v. M.V. T.S.Propsperity 778 F. Supp. 1282 at p. 1286, note 1, 1992 AMC 1617 at p. 1623, note 1(S.D. N.Y. 1991), expressly denying that a bill of lading lacking an on-deck notationconstituted a quasi-deviation where the parties agreed to such carriage.

77.

77 422 F.2d 7, 1969 AMC 1741, [1969] 2 Lloyd's Rep. 536 (2 Cir. 1969).

78.

78 (1974) 44 D.L.R. (3d) 478; in first instance [1970] Ex. C. R. 1012. See also Courd'Appel de Paris, May 19, 1980, DMF 1980, 607 where notice had to be given to theshipper of deck carriage in the case of non-container cargo.

79.

79 543 F.2d. 967, 1976 AMC 487 (2 Cir. 1976).

80.

80 814 F.2d 84 at p. 89, 1987 AMC 1351 at p. 1359 (2 Cir. 1987).

81.

81 1999 AMC 1080 at p. 1087 (S.D. N.Y. 1999).

82.

82 [1970] Ex. C.R. 672. See also Ingersoll Milling Machine Co. v. M. V. Bodena, 619 F.Supp. 493 (S.D. N.Y. 1985), aff'd in pertinent part, 829 F.2d 293, 1988 AMC 223 (2 Cir.1987), cert. denied 484 U.S. 1042, 1988 AMC 2399 (1988).

83.

83 Ibid., [1970] Ex. C.R. 672 at p. 678.

84.

84 361 F.2d. 833 at p. 838, 1966 AMC 1405 at p. 1412 (5 Cir. 1966).

85.

85 Royal Embassy v. Ioannis Martinos, 1986 AMC 790 at p. 794 (E.D. N.C. 1984);Royal Exchange Ass. v. S.S. President Adams, 510 F. Supp. 581 at p. 585 (W.D. Wash.1981); English Electric Valve Co. v. Hoegh Mallard, 814 F.2d 84 at p. 89, 1987 AMC1351 at p. 1359 (2 Cir. 1987); Sail America Foundation v. M.V. T.S. Prosperity 778 F.Supp. 1282 at p. 1285, 1992 AMC 1617 at p. 1622 (S.D. N.Y. 1991).

86.

86 962 F. Supp. 86 at p 88, 1997 AMC 2431 at p. 2432 (E. D. La. 1997).

87.

87 Sheerwood et al. v. The Lake Eyre et al., [1970] Ex. C.R. 672 (Ex. C. Can.) See alsoThe Ardennes, [1951] 1 K. B. 55 at p. 59, (1950) 84 Ll. L. Rep. 340 at p. 344; GracePlastics Ltd. v. The Bernd Wesch II [1971] F.C. 273 at p. 278 (Fed. C. Can.).

88.

88 See Chap. 9: "Proving the Contract or the Tort", supra.

89.

89 See Ingersoll Milling Machine Co. v. M/V Bodena 829 F.2d 293, 1988 AMC 223 (2Cir. 1987), cert. denied 484 U.S. 1042, 1988 AMC 2399 (1988), where the original oralunderstanding between the parties, that the goods would be carried on deck, was held notto have been altered by the subsequent issuance of a bill of lading containing the notation"on deck shipper's risk".

90.

90 Ingersoll Milling Machine Co., supra.

91.

91 Art. 22 second para. of Law No. 66-420 of June 18, 1966, as amended by Law No.79-1103 of December 21, 1979.

92.

92 Art. 9(l) of the United Nations Convention on the Carriage of Goods by Sea, 1978,signed at Hamburg, March 31, 1978, and in force November 1, 1992.

93.

93 Diethelm & Co. v. S. S. Flying Trader 141 F. Supp. 271, 1956 AMC 1550 (S.D.N.Y.1956). The carrier and shipper contracted to apply COGSA to deck cargo and the carrierwas held responsible because it was unable to prove peril of the sea. See also Uniao deTransportadores v. Acoreanos 84 F. Supp. 582, 1949 AMC 1161 (E.D.N.Y. 1949); WestAyska (Waterman S.S. Corp. v. United States S.R. & M.) 155 F.2d. 687, 1946 AMC 997(5 Cir. 1946); Pannell v. S.S. American Flyer 157 F. Supp. 422, 1958 AMC 1428(S.D.N.Y. 1957); General Motors Corp. v. S.S. Mormacoak 327 F. Supp. 666, 1971AMC 1647 (S.D. N.Y. 1971); Power Construction Ltd. v. Canadian National RailwayCo. (1984) 48 Nfld. & P.E.I.R. 271 at p. 273, 142 A.P.R. 271 at p. 273 (Nfld. C.A.). Butsee also Cour de Cassation, July 5, 1988, [1990] ETL 221, holding that a paramountclause in a bill of lading making the Hague Rules applicable to deck cargo could be reliedupon against the consignee only if he had accepted it. See also Rechtbank vanKoophandel te Gent, June 19, 1990, [1991] ETL 377, indicating that the application ofthe Hague/Visby Rules to deck carriage is governed by the maritime law only byagreement and that its application is not mandatory.

94.

94 Law No. 66-420 of June 18, 1966, as amended by Law No. 79-1103 of December 21,1979, and by Law No. 86-1292 of December 23, 1986.

95.

95 Ibid. Law No. 66-420 at art. 60.

96.

96 See generally Rodière, 12 Ed., 1997, para. 353; Rèmond-Gouilloud, 2 Ed., 1993,

para. 564; Vialard, para. 459.

97.

97 See, for example, Cour d'Appel de Paris, March 2, 1988 (The Rhone), DMF 1989,239 at p.243, for an interesting discussion of whether sea transport from the Frenchmainland to Corsica is "petit cabotage", thus authorizing deck carriage. The Court did nothave to decide the point, however, because the commissionnaire de transport, acting asshipper under the bill of lading, had signed and thus approved a clause of the billexpressly authorizing deck carriage on that route.

98.

98 See, for example, Cour d'Appel de Paris, March 23, 1988 (The Radbod), DMF 1989,229 at p. 237, where the Court found that because part of the cargo was a dangerouschemical, the carrier committed no fault in opting to load it on deck under a liberty clauseof its bill of lading granting that option.

99.

99 See, for example, Cour d'Appel d'Aix, April 29, 1990 (The Al-Hoceima), DMF 1991,105 at p. 108, note P. Bonassies.

100.

100 Art. 3 of Law No. 79-1103 of December 21, 1979 added this provision to art. 22 ofLaw No. 66-420 of June 18, 1966. See also Rodière, "Le Droit positif français en 1980"DMF 1981, 3 at p. 5. This presumption is rebuttable however. See also Rodière & duPontavice, 12 Ed., 1997, para. 353.

101.

101 The Law of June 18, 1966 does not contain as specific a definition of deck carriageas does art. 1(c) of the Hague Rules, and the consent is deemed to have been granted bythe shipper's signature. See Cour de Cassation, December 16 1965, DMF 1966, 269 withnote by P. Lureau at p. 718 and note by R. Rodière, JCP 1966 II 14634; Cour d'Appel deParis, February 17, 1977, DMF 1977, 535. See Rodièrre, Traité Général. Affrètements &Transports, Vol. 2, 1968 at paras. 521 & 522; Du Pontavice, Transports Maritimes etAffrètements, 1970 para. H-9; Raymond Achard, Chargement en pontée irrégulier, DMF1983, 3 at p. 4.

102.

102 Decree No. 66-1078 art. 37, as amended by art. 2 of Decree No. 87-922 ofNovember 12, 1987.

103.

103 Rodière & du Pontavice, 12 Ed., 1997, para. 353 note 5l; Vialard, 1997, para. 460.

104.

104 See Cour d'Appel d'Aix, June 18, 1985, DMF 1986, 740, note Achard.

105.

105 See Rodière & du Pontavice, 12 Ed., 1997, para. 353 note 4; "Le référé-injonction,une nouvelle arme pour les créanciers pressés", Bulletin des Transports 1986, .389.

106.

106 See Vialard, 1997, para. 461; Rèmond-Gouilloud, 2 Ed., 1993, para. 563; Rodière &du Pontavice, 12 Ed., 1997, para. 353. In Cour d'Appel d'Aix, February 22, 1985, DMF1987, 426, the Court held that, because the carrier had committed a fault by stowing ondeck contrary to the shipper's instructions, he could not exculpate himself by raising theperil of the sea defence.

107.

107 Law No. 86-1292 of December 23, 1986, art. 2 amending art. 28 of Law No. 66-420of June 18, 1966.

108.

108 Rodière & du Pontavice, 12 Ed., 1997, para. 353, note 5 and para. 378; Vialard,paras. 461 and 493; Rèmond-Gouilloud, 2 Ed., 1993, paras. 566 and 597. See also Courde Cassation, January 7, 1997 (The Teleghma), DMF 1997, 397, note Ph. Delebecque,Bulletin des Transports 1997, 237, Revue Scapel 1997, 16; commentary by P. Bonassies,DMF Hors série no. 2, 1998, no. 101 at p. 68.

109.

109 Rodière & du Pontavice, 12 Ed., 1997, para. 378; Rèmond-Gouilloud, 2 Ed., 1993,para. 597. See also The Teleghma, ibid., critical commentary by P. Bonassies, DMF Horssérie no. 2, 1998, no. 101 at p. 68; critical commentary by R. Achard on Cour d'Appel deRouen, February 18, 1999 (The Dusseldorf Express), DMF 2000, 231 at pp. 243-244.There is as yet no decision as to whether a "personal" act or omission of the carrier isrequired under France's international regime, the Hague/Visby Rules. See P. Bonassies'commentary (DMF 1996 no. 78bis at p. 256) on The European Enterprise [1989] 2Lloyd's Rep. 185, an English decision holding that art. 4(5)(e) of the Hague/Visby Rulescontemplates only the carrier's personal acts or omissions done with intent to cause thedamage or recklessly with knowledge that the damage would probably result, and not theintentional or reckless acts or omissions of the carrier's servants or agents. Bonassiesnotes that in French law, the faute qualifiée (e.g. intention or recklessness) of the servant(e.g. the master or crew) is normally assimilated to the faute qualifiée of the employer(e.g. the carrier). He nevertheless recognizes that art. 4(5)(e) of the Hague/Visby Rules,unlike art. 25 of the Warsaw Convention 1929 as amended by its Hague Protocol 1955and other conventions, refers only to the carrier, and not to its servants or agents. Heconcludes that the Cour de Cassation will eventually have to decide the scope of art.4(5)(e) in France. Rodière & du Pontavice, 12 Ed., 1997, at para. 393 note 2, take theposition that art. 4(5)(e) relates only to the dol or faute inexcusable of the carrier and notto that of the carrier's servants or agents.

110.

110 DMF 1978, 527, overruling Cour d'Appel de Paris, May 24, 1976, DMF 1976, 587.Cour de Cassation, July 18, 1984, DMF 1985, 210, with note by R. Achard.

111.

111 The carrier rarely intends to cause damage to the cargo interests; rather, he seeks hisown beneit.

112.

112 Cour de Cassation, February 4, 1968, Dalloz 1969.601, with note by J. Mazeaud;see also Cour de Cassation, October 8, 1975, JCP 1975.IV.346.

113.

113 The decision by the Cour de Cassation, of January 30, 1978 has been subject tosevere criticism: see P. Chauveau, Rétrospectives d'actualités, DMF 1979, 65 at p. 71; E.du Pontavice, Revue trimestrielle du droit commercial, 1981, 151. See also Cour deCassation of Belgium, May 25, 1979, [1980] ETL 175, where the carrier was denied thebenefit of limitation of liability in a case of deck carriage under a clean bill of lading. Onthe meaning of dol in French maritime law, as opposed to its wider meaning in Frenchcivil law, see also Rodière & du Pontavice, 12 Ed., 1997, para. 378 note 2, Vialard, para.493 note 1.

114.

114 See note by R. Achard appended to Cour de Cassation, March 18, 1986, DMF 1987,285 at p. 289. The decision on this issue in Cour d'Appel de Paris, March 24, 1986, DMF1987, 23 at p. 29 may also have been prophetic. In respect of the carrier's legal positionprior to Law No. 86-1292 of December 23, 1986, see Cour de Cassation, April 29, 1969,DMF 1969, 613, with note by P. Lureau; see also Rodière, Traité, Transports etAffrètements, t. 2, paras. 675 et seq. On the basis of the Cour de Cassation, March 11,1960, DMF 1960, 331, even faute inexcusable is insufficient to deny the limitation ofliability under French internal law; it is sufficient in cases where the international regimeapplies: R. Achard, Chargement en pontée irrégulier, DMF 1983, 3 at p. 11. See alsoCour de Cassation, January 7, 1997 (The Teleghma), DMF 1997, 397, note Ph.Delebecque, Bulletin des Transports 1997, 237, Revue Scapel 1997, 16; commentary byP. Bonassies, DMF Hors série no. 2, 1998, no. 101 at p. 68. See also Cour d'Appel deRouen, February 18, 1999 (The Dusseldorf Express), DMF 2000, 231, observations R.Achard.

115.

115 See Cour de Cassation, January 7, 1997 (The Teleghma), DMF 1997, 397, note Ph.Delebecque, Bulletin des Transports 1997, 237, Revue Scapel 1997, 16; commentary byP. Bonassies, DMF Hors série no. 2, 1998, no. 101 at p. 68. The exclusion of faute lourdeappears to be unchanged from the law prior to the 1986 amendment, as established underthe former Law of April 2, 1936 by a decision of the joint chambers of the Cour deCassation on March 11, 1960, Dalloz 1960, 277, note Rodière, DMF 1960, 331. Thisexclusion was reflected in the drafting of art. 28(a) of Law no. 66-420 of June 18, 1966(prior to the 1986 amendment), which recognized only dol as breaking the carrier'spackage limitation. See Rèmond-Gouilloud, 2 Ed., 1993, para. 596. The sameinterpretation of the original art. 28(a) of 1966 was reiterated in Cour de Cassation,March 18, 1986, DMF 1987, 285, note R. Achard and Cour de Cassation, May 24, 1994,DMF 1994, 598, commentary by P. Bonassies, DMF 1995, no. 79 at p. 195.

116.

116 Cour d'Appel d'Aix, September 29, 1959; DMF 1960, 90. René Rodière, TraitéGénéral, Affrètements et Transports, Tome II, para. 675, noted with regret that fautelucrative (fault where a person acts for his personal monetary benefit) was not included inthe Law of June 18, 1966. See also Rodière & du Pontavice, 12 Ed., 1997, para. 378.

117.

117 In respect of deck carriage in particular, see Cour d'Appel de Nouméa, October 1,1998, Bulletin des Transports 1999, 444, critical commentary by P. Bonassies, DMFHors série, no. 4, 2000, no. 81 at pp. 61-62.

118.

118 Note accompanying Cour d'Appel de Paris, May 26, 1978, in Bulletin desTransport, no. 1862, p. 118.

119.

119 Cour d'Appel de Paris, October 1, 1986. DMF 1987, 431 at p. 436; du Pontavice,Transports Maritimes et Affretements, 1970, p. H-10.

120.

120 Cour d'Appel de Paris, May 24, 1976, DMF 1976, 587.

121.

121 R. Achard, Chargement en pontée irrégulier, DMF 1983, 3 at p. 6. Rodière, on theother hand, argues that the Hague/Visby Rules do not apply to deck carriage whetherpermissible or not.

122.

122 See Chap. 5: "Fundamental Breach, Quasi-deviation and Rupture of the Contract".

123.

123 DMF 1983, 26 with note by P.-Y. Nicholas at p. 151.

124.

124 The general liberty to carry on deck clause in the bill of lading covered only certainspecified types of deck cargo, but not the type of cargo that was lost here: Cour dAppelde Paris, May 19, 1980, DMF 1980, 607 at p. 610.

125.

125 Ibid.

126.

126 A similar approach had been taken by an English Court in Svenska TraktorAktielbolaget v. Maritime Agencies (Southampton) Ltd., [1953] 2 Lloyd's Rep. 124.

127.

127 The Court furthermore adopted the narrow construction of dol, i.e. intention to causedamage, which had been used by the Cour de Cassation, January 30, 1978 and for whichthis decision was severely criticized, supra.

128.

128 R. Achard, Chargement en pontée irrégulier, DMF 1983, 3 at p. 11. Rodi&e inTraiti, Affretements et Transports, t. 2, para. 525 states that limitation of liability is rarelylost because otherwise the carrier is subject to a private penalty which can only beimposed by a clear text of law.

129.

129 Cour de Cassation, July 7, 1998 (The Atlantic Island), DMF 1998, 826, reportRémery, note P. Bonassies, Bulletin des Transports 1998, 570, Revue Scapel 1998, 96;[1998] ETL 797; commentary by P. Bonassies, DMF Hors série no. 3, 1999, no. 94 at p.71.

130.

130 1997 AMC 1568 (S.D. Ga. 1996), aff'd in pertinent part without discussion, 139F.3d 1450, 1998 AMC 1965 (11 Cir. 1998), cert. denied, 119 S.Ct. 405, 142 L.Ed.2d 328(1998).

131.

131 Ibid. 1997 AMC at p. 1584.

132.

132 [1995] 2 Lloyd's Rep. 290 (N.Z. High C.).

133.

133 In general, courts in the Commonwealth countries and the United States take a"subjective" view of "recklessness with knowledge" of the probability of the damage,focussing on whether the defendant "must have been aware" of the likely effects of hisacts or omissions, whereas French courts prefer an "objective" interpretation, focussingon whether the defendant "should have" been aware of the risks occasioned by hisconduct. See Chap. 5: "Fundamental Breach, Deviation, Quasi-Deviation and Rupture ofthe Contract", supra and authorities cited there.

134.

134 The Antares (Nos. 1 and 2), [1987] 1 Lloyd's Rep. 424 (C.A.). See also The Chanda[1989] 2 Lloyd's Rep. 494 at p. 505.

135.

135 [1995] 2 Lloyd's Rep. 290 (N.Z High C.).

136.

136 Ibid. at p. 296. See also Itel Container Corp. v. M/V Titan Scan 1997 AMC 1568 atp. 1584 (S.D. Ga. 1996), supra.

137.

137 [1995] 2 Lloyd's Rep. 290 at p. 296 (N.Z High C.).

138.

138 See The European Enterprise [1989] 2 Lloyd's Rep. 185 at pp. 191-192; The Lion[1990] 2 Lloyd's Rep. 144 at pp. 149-150. The latter decision was, however, a carriage ofpassengers case, so that statements made there with respect to art. 4(5)(e) of theHague/Visby Rules were obiter dicta. The decisions on this point hinge on the fact thatthe Hague/Visby Rules, unlike certain other international transport conventions (e.g. theWarsaw Convention 1929 and the Athens Passenger Convention 1974) do not expresslyinclude "servants and agents" in art. 4(5)(e).

139.

139 [1995] 2 Lloyd's Rep. 290 at p. 297 (N.Z. High C.): "The recklessness on the part ofthe master is what is in issue... On this finding the defendant cannot rely on the limitationin the Hague-Visby Rules in any event."

140.

140 See Scrutton, 20 Ed., 1996 at pp. 451-452, citing The European Enterprise [1989] 2Lloyd's Rep. 185 at p. 191, which in turn had cited Scrutton's 18 Ed., 1974 at p. 463 and19 Ed., 1984 at p. 456, on the same point. See also Sellers Fabrics Pty. Ltd. v. Hapag-Lloyd AG, New South Wales Supreme Court, October 29, 1998, unreported bysummarized by S. Derrington & M. White, "Australian Maritime Law Update: 1998"(1999) 30 JMLC 419 at pp. 424-426.

141.

141 United Nations Convention on the Carriage of Goods by Sea, 1978, signed atHamburg, March 31, 1978 and in force November 1, 1992.

142.

142 Art. 9(l) of the Hamburg Rules starts out with great bluster against deck carriage butis soon watered down by exceptions so that the carrier may carry on deck in many moresituations than under the Hague Rules and the sanctions for unjustified deck carriage aremuch weaker. See Tetley, The Hamburg Rules -A Commentary, [1979] LMCLQ 1 at pp.10 & 11.

143.

143 Reference to usage or custom is ill-advised in an international convention intendedto clarify and standardize the law.

144.

144 This is an intelligent provision. See art. 22 of Law No. 66-420 of June 18, 1966 ofFrance.