The plaintiffs brought a claim arising from an incident that occurred in the discharging of goods against the shipowner, the charterer and the charterer's insurer. The lower court found in favour of the defendants. On appeal, the Court of Appeal partially upheld the appeal and ordered the charterer to pay the plaintiffs the petitioned amounts. The charterer and its insurer then appealed in cassation to the Supreme Court of Justice, arguing that it was the ship's master who was obligated to effect good stowage and storage, in line with its responsibility for the nautical management of the ship. In the event of an omission of such duties and consequent damage, the shipowner, of whom the master is an agent, is the party responsible for them. It is also incumbent upon the stevedoring port company, exclusively, to define the human resources to be allocated to the port operation as well as its management. The powers of oversight, supervision and co-ordination are the responsibility of the port authority. The abovementioned entities fully dictate their modus faciendi of the unloading operation without any interference from others, namely the charterer of the vessel concerned.

Held: The appeal in cassation is unfounded and the judgment under appeal is confirmed.

The lower court cited art 3.2 of the Hague Rules, according to which the master of the ship, representing the shipowner, shall 'properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried'. The court also stated that art 9 of DL 191/87 of 29.04 obliged the charterer to 'carry out the loading and unloading operations of the ship within the established deadlines'. However, it was the judgment of the lower court that it was only the charterer's duty to comply with the deadlines, but without assigning the loading and unloading tasks to it.

Except, with due respect, this restrictive interpretation of the provisions of art 9 of DL 191/87 is not consistent with the very letter of the precept. Indeed, it would not be understood that the charterer could be held responsible for the delay in discharging if there was no interference in its performance. But, on the other hand, the charterer's responsibilities for loading and unloading must be reconciled with the legal determination that the shipowner, through its representative, the master of the ship, must act appropriately and diligently in stowing and discharging the goods. There would seem to be a kind of overlap of competences.

The master of the ship, as the party primarily responsible for the nautical management of the transport, has competence in stowage and unloading, but only to the extent that such activity may compromise nautical management. It is common knowledge that a badly stowed ship can endanger its own seaworthiness. But the activity in question does not end with nautical management. There are procedures for loading and unloading of goods which no longer concern the safety of the ship but are intended solely to prevent the risk of damage to the goods being transported or to other goods or persons and which should be the responsibility of the person responsible for such activity. Thus, the extent of responsibility that should accorded to each of the entities in question is defined. It is the responsibility of the shipowner to intervene in stevedoring to the extent that it affects the nautical management of the ship, and the charterer is responsible for all that is necessary to carry out the services. According to the settled facts, the incident was due to the fact that the goods had not been previously cleared. This has nothing to do with the nautical management of the ship. It therefore enters the realm of those operations which were up to the charterer to secure. In addition to this general responsibility of the charterer, in the present case the charterer assumed responsibility for the said activity and then subcontracted it. It cannot therefore question the legality of a liability which, with or without general regulatory coverage, it has expressly come to assume.

The second argument put forward by the charterer is that the entities that actually carried out the discharging of the goods acted autonomously in defining and managing the human resources allocated to the operation and exclusively under the supervision of the port authorities, which is why they cannot be regarded as agents of the charterer. In the appellate judgment it was considered that the hiring of a stevedore by the charterer was part of a service contract, which is governed by the rules of mandate. Thus, there was an agency relationship between them, in terms of which the charterer was responsible as the principal for damage that occurred in the discharge of the goods. There is nothing to contradict this thesis. The autonomy referred to in the definition and management of the human resources that were allocated to the operation by the subcontracted entities is merely technical and not legal, that is, they do not interfere with the power to guide the operation that the charterer continued to hold. The fact that the charterer did not use that power does not remove it as the principal.