In brief - Express terms in bill of lading clause found to be effective to exclude liability for negligence and unseaworthiness
The preliminary issue, which was determined in Aprile S.P.A. and Others v Elin Maritime Limited  EWHC 1001 (Comm) by Stephen Hofmeyr QC in the High Court in England and Wales, was whether or not the carrier was liable for loss or damage to cargo carried on deck, howsoever arising, including loss or damage caused by unseaworthiness and/or the defendant's negligence.
Exclusion clause in bill of lading examined by Court
The bill of lading contained a standard form of General Paramount Clause. However, it was agreed between the parties that neither the Hague Rules nor the Hague Visby Rules applied to packages which were stated in the bill of lading to be loaded on deck, provided that they were in fact so loaded (which was not admitted by the cargo interests but assumed for the purposes of the determination of the preliminary issue). It was assumed for the purposes of the preliminary hearing that the Hague/Hague Visby Rules have no application.
It was also assumed for the purposes of the preliminary issue that the bill of lading incorporated the germane terms of a charter party.
Attached to the bill of lading was a list of the 70 packages said to have been loaded on deck or damaged during heavy weather during the voyage from Thailand to Algeria. There was a further provision in the bill of lading referring to those 70 packages as being "loaded on deck at shipper's and/or consignee's and/or receiver's risk; the Carrier and/or Owners and/or Vessel being not responsible for loss or damage howsoever arising."
Stephen Hofmeyr QC found that the bill of lading terms, as a matter of construction, were apt to exclude liability for both negligence and unseaworthiness. He said that "the words of exclusion are clear. The owner has no responsibility for cargo carried on deck whatever the cause. It is difficult to conceive of wider words of exemption. The exclusion covers any and every cause and there is no justification for excluding either negligence or unseaworthiness as a cause."
Court's decision in line with The Imvros, among others
As Stephen Hofmeyr QC pointed out, the same or similar words of exclusion have been held to be effective to exclude both liability for negligence causing the loss of cargo and liability for unseaworthiness causing the loss of cargo since at least the beginning of the 20th Century in the former circumstance in the case of Joseph Travers & Sons, Limited v Cooper (1915) 1 KB 73 and in the latter case in The Imvros (1999) 1 Lloyds Rep 848, a decision of Langley J., in which the words of the Charter Party were "Charterers are permitted to load cargo on the vessel's deck…provided always that the permissible loads…are not exceeded…The vessel is not to be held responsible for any loss of or damage to the cargo carried on deck whatsoever and howsoever caused." Langley J held there was no justification for excluding unseaworthiness as a cause that was covered by the exclusions.
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