Carriage (November 1996) from Rotterdam to Paramaribo (Surinam) of a motor car as deck cargo on board the Atlantic Frigo by carrier Nirint-Van Uden at the instructions of Akomar, who acted as freight forwarder on behalf of Rampersad. On 9 November 1996 Nirint-Van Uden issued a bill of lading naming Akomar as shipper and Tjin Liep Shie as consignee. The bill of lading, which bore the text ‘carried on deck without liability for loss or damage howsoever caused’, also contained a ‘before and after’ clause and a provision that the carrier would not be liable for any loss of or damage howsoever caused to deck cargo, which by the contract of carriage was stated as being carried on deck and was actually carried on deck. After Akomar provided Rampersad with title to sue, both Tjin Liep Shie and Rampersad claimed compensation from Nirint-Van Uden for damage to the car and for delay.

Held: There is no basis for an opinion that the freedom of contract which parties have to exclude liability for loss of or damage to deck cargo does not extend to the period of loading and discharging. That freedom is not restricted by the Hague-Visby Rules in which in art 1.e ‘carriage of goods’ is described as ‘the period from the time when the goods are loaded on to the time they are discharged from the ship’, whereas under art 1.c deck cargo is excluded from the application of the Convention during that entire period. Also under Dutch law the freedom of contract is not limited: art 8:382 para 2(c) of the Dutch Civil Code (DCC) allows for an exclusion of liability with regard to deck cargo. In view of the connection between that provision and arts 1.c and 1.e of the Hague-Visby Rules it does not stand to reason to suppose that the term in art 8:382 DCC would have a different meaning than the one in the provisions of the Convention. If that were different, then only the liability for damage to deck cargo during loading and discharging would - despite art 1.c -  remain covered the Hague-Visby Rule regime, whereas liability for damage to deck cargo during all other parts of the carriage would fall outside that regime. It that respect it should be mentioned that under Dutch law (art 8:386 DCC) as well as under the Hague-Visby Rules (art 7) exclusion of liability for loss of or damage to goods - deck cargo and other goods - is allowed for the period before loading and after discharge.

Therefore, if the Court of Appeal in its judgment subject to this appeal wanted to express the opinion that an exclusion of liability cannot be validly agreed in respect of damage to deck cargo arising during loading or discharging, this opinion is incorrect. However, if the Court of Appeal merely intended to say that the clause in question in this case should be interpreted to mean that the exclusion of liability does not apply to the period of loading or discharging, that opinion is, without further reasoning, which is absent, incomprehensible because it appears from the documents in this case - and the Court of Appeal also seems to haven taken this as its starting point - that with the clause Nirint-Van Uden intended to use the liberty provided by art 8:382 para 2(c) DCC, and that the other party to the contract understood it as such or reasonably should have done so.