We would like to ensure that you are still receiving content that you find useful – please confirm that you would like to continue to receive ILO newsletters.
17 October 2018
The recent Court of Appeal case Kyokuyo Co Ltd v AP Moller - Maersk A/S concerned the enumeration of units for the limitation of containerised cargo.(1)
The claim arose following damage to a cargo of frozen bluefin tuna packed into three refrigerated containers, which had occurred during carriage by Maersk from Cartagena to Japan. The individual items of tuna were not wrapped, packaged or consolidated.
Each of the containers was shipped pursuant to Maersk's standard terms and conditions of carriage, which contained an implied term that the shippers were entitled to demand that Maersk issue bills of lading.
As a result of delays to three of the 12 containers (and a desire to avoid further delays), no bills of lading were issued for the three containers. Instead, it was agreed that sea waybills would be issued, which stated as follows: "1 container said to contain [520/206/500] PCS FROZEN BLUEFIN TUNA LOINS".
On discharge, the claimant alleged that the tuna had been damaged by high temperatures during carriage or rough handling during repacking into a replacement container. It therefore claimed approximately £860,000.
As the Hague-Visby Rules do not automatically apply to waybills, Maersk argued that the Article IV.5 limits did not apply and that it could therefore rely on the contractual limit set out in its terms and conditions of £100 per package in line with the rules. This would have limited the claim to approximately £2,000.
The Court of Appeal was asked to determine the following issues relating to package limitation:
In dismissing Maersk's appeal, the court held as follows:
The court refused to follow the Australian decision in El Greco v Mediterranean Shipping that the Hague-Visby Rules require it to be clear from the face of a bill of lading not only how many items are in a container, but also whether those items have been packaged together. The waybills in Kyokuyo, therefore, were considered to have accurately enumerated the number of units in the container.
The materials contained on this website are for general information purposes only and are subject to the disclaimer.
ILO is a premium online legal update service for major companies and law firms worldwide. In-house corporate counsel and other users of legal services, as well as law firm partners, qualify for a free subscription.