Appellant A was a freight forwarder. Respondent B was a freight forwarder, shipping agency, and international transporter. A asked B to carry three containers full of pallets of empty glass bottles from the port of Setúbal (Portugal) to their final destination in Churchstoke (Wales). Clause 20 of the relevant bill of lading provided for storage of the goods on arrival and stated that:

Such storage shall constitute due delivery hereunder and thereupon the liability of the Carrier in respect of the Goods or that part thereof stored as aforesaid (as the case may be) shall wholly cease and the cost of such storage (if paid or payable by the Carrier or any agent or subcontractor of the Carrier) shall forthwith upon demand be paid by the Merchant to the Carrier. ... If the Merchant fails to take delivery of the Goods within thirty days of delivery becoming due under Clause 20(2) or (3), or if in the opinion of the Carrier they are likely to deteriorate, decay, become worthless or incur charges whether for storage or otherwise in excess of their value, the Carrier may, without prejudice to any other rights which he may have against the Merchant, without notice and without any responsibility whatsoever attaching to him, sell, destroy or dispose of the Goods and apply any proceeds of sale in reduction of the sums due to the Carrier from the Merchant.

Container TCLU482416/7 and its contents were damaged during transport or at the final destination. As a consequence, the receiver of the goods refused to take delivery of this container or the goods in it. A significant, protracted and ineffectual email correspondence ensued between A and B from February-May 2015.

The first instance Court upheld B's claim for storage costs and quay and demurrage surcharges incurred under cl 20 of the bill of lading. A appealed.

Held: Appeal dismissed. Inconsequential factual findings in the first instance judgment corrected.

A argued on appeal that cl 20 of the bill of lading was null and void for violating the provisions of art 3.8 of the Hague Rules. This is an issue that A had not raised at first instance. Article 3.8 provides that '[a]ny clause, covenant, or agreement in a contract of carriage relieving the carrier or the ship from liability for loss or damage to, or in connexion with, goods arising from negligence, fault, or failure in the duties and obligations provided in this Article or lessening such liability otherwise than as provided in this Convention, shall be null and void and of no effect'. As can be seen from this provision, the nullity contained therein concerns clauses that exclude or mitigate liability for damage caused to the goods, the compensation of which constitutes the carrier's responsibility. As A mentions, it is undisputed that, as a general rule, the responsibility for damage suffered by the goods during their transport by sea is the responsibility of the carrier, although this rule has exceptions, provided for in art 4 of the Hague Rules. It is uncontroversial that in the present case, by virtue of the contract concluded with A, B assumed the responsibilities inherent in the status of a carrier, and it is also uncontroversial that the goods suffered damage in the course of transport or at their final destination. B argues that cl 20 of the bill of lading was not intended to exonerate its responsibility for the reimbursement of damage to the transported cargo, but only to invoke A's breach of its obligation to take delivery of the containers after receiving a receipt, and A's concomitant refusal to accept the part of the cargo that was damaged. The relevant parts of cl 20 do not provide for any exclusion of the carrier's liability for damage caused to the goods transported. Even if cl 20 of the bill of lading were partially null and void, the defect would focus only on possible exclusion of liability for damage to the cargo, and not on the imposition of A's obligation to take delivery of the containers after receiving or refusing the cargo. Therefore, such alleged nullity has no influence on the decision of this case.

Article 3.6 of the Hague Rules provides that in 'the case of any actual or apprehended loss or damage the carrier and the receiver shall give all reasonable facilities to each other for inspecting and tallying the goods'. However, it does not follow from this provision that the carrier has an obligation to provide the shipper with detailed information on the causes of the harmful event, or on the condition of the damaged goods. Such questions will be the subject of an investigation or expert report ('survey'), if applicable, but do not constitute a charge for which the carrier is liable.

To this extent, even though A asked B for more precise information and evidence, such as photographs of the cargo, the truth is that this was not linked to the survey of the goods, nor could A be considered exempt from the obligation to determine what would happen to the damaged cargo, simply because A considered the information transmitted by B to be insufficient. This was, moreover, the position expressed by A to B on 3 March 2015. However, it was only on 11 March 2015 that A indicated to B its intention to carry out an investigation regarding the damaged goods, with such diligence only being carried out on 8 April 2015, and with the damaged cargo remaining in the container until 23 April 2015.

The goods transported were pallets of empty glass bottles and the receiver was a spring water trading company. In light of the nature of the goods transported, given the news of the refusal of part of the goods as damaged, a reasonable shipper, placed in A's situation, would at least have considered the high probability that the transported and rejected bottles could find other buyers, and would have showed greater care in investigating the condition of the cargo, without prejudice to the possible investigation of the causes of damage, to be carried out by means of an expert report. A violation by B of its legal and contractual duties of good faith, information, or co-operation has not been demonstrated.

It follows that A is effectively responsible for the amounts claimed by B, which refer to storage and accommodation expenses (quay and demurrage) of the refused goods after their presentation to the receiver. Accordingly, without prejudice to the alteration of certain matters of fact found in the judgment, which have no effect on the decision of this case, it remains only to conclude that the present appeal is totally unfounded.