In an extract from the article ‘Liability for deck cargo and the Hague-Visby Rules: some reflections’, published in the Lloyd's Shipping & Trade Law Journal, Filippo Lorenzon and Tim Guyer follow up on the recent High Court judgement in the case of Elin to offer a thorough review of exclusion clauses relating to the carriage of deck cargo and how they should be interpreted under English law.

The exclusion of deck cargo from the scope of application of the Hague-Visby Rules should not be mistaken for a lack of regulation, they observe: liability of deck cargo will in fact be subject to the duties and liabilities provided for by the law applicable to the contract of carriage under which the cargo is carried.

Under English law, carriers are responsible for loss of or damage to the cargo under the law of ‘common carriage’ which is – in the words of Lord Sumption in the recent decision in Volcafe – a sub-species of the law of bailment.  From this follows that under English law the carrier will need to load, stow and carry the cargo with due care and diligence and, should the cargo be damaged nonetheless, it will be responsible for loss or damage in full, with only a handful of exceptions and without the benefit of limitation. 

The parties may however exercise their contractual freedom to do away with this default position; this is consistently done through exclusion clauses contained in bills of lading.  These usually contain a blanket exclusion of liability saying that: “The Carrier shall in no case be responsible […] in respect of deck cargo” or words of a similar effect. 

Therefore when it comes to any issues of liability concerning the loss or damage of deck cargo, one must look at the bill of lading and verify the following:

1. look at “Port of Loading” and “Place of Issue” boxes to check whether such ports are in contracting states. In the negative check on the back of the bill to see whether the Hague Visby Rules are expressly incorporated into the contract.  Should any of these conditions be triggered under English law the contract of carriage would be subject to the Hague/Hague Visby Rules; should they not, the carriage would be subject to the contractual terms of the bill unrestrained by the Rules;
2. look at the bill again to verify whether it contains a statement to the effect that the cargo is carried on deck.  This would normally be a stamp stating “CARRIED ON DECK” or “DECK CARGO” or a statement in or around the description box stating which part or proportion of the cargo is “carried on deck at shipper’s risk”. A liberty to carry cargo on deck does not amount to such statement;
3. Should the answer to (a) and (b) above be in the positive, it will be necessary to verify that the cargo was actually carried on deck by way of any form of contemporary evidence, like a stowage plan, customs declaration, survey report, etc.

Should this enquiry lead to the answer that the cargo is “deck cargo” for the purpose of the Hague-Visby exclusion or at common law as the case may be, then the focus should shift to the contractual clauses at the back of the bill or in the charterparty incorporated by the bill itself and the way in which they should be construed.

A good illustration of this latter process is to be found in the recent case The Elin, a decision handed down by Stephen Hofmeyr QC, sitting as a deputy High Court Judge which provided a thorough review of exclusion clauses relating to the carriage of deck cargo and how they should be interpreted under English law.

*Liability for deck cargo and the Hague-Visby Rules: some reflections, by Filippo Lorenzon and Tim Guyer, published in the July 31 edition of Lloyd's Shipping & Trade Law Journal, available to subscribers at https://www.i-law.com/ilaw/doc/view.htm?id=401441.