Carriage from Qingdao (China) to Immingham (UK) by Eimskip (the contractual carrier) on the instructions of Xpressfish (formerly Seafood) of a cargo of 2300 boxes of frozen fish on board the MS CMA CGM Bizet in a container provided by the actual carrier, CMA CGM. After arrival and discharging in the UK on 11 September 2008, the fish was rejected by the Port Health Authority on 17 September 2008 due to high temperatures, with instructions that the fish must be brought outside the European Union within two months. Using the same container, Xpressfish shipped the fish back to China, where the fish was reconditioned and sold. Investigation showed that the container was not in order. Xpressfish claimed cargo damage from Eimskip, being the difference between the original sale price and the new sale price reduced by reconditioning costs. 

Held: The carrier’s responsibility to exercise due diligence to make the ship seaworthy and fit for carriage, as contained in art 3.1.a, b and c of the Hague-Visby Rules, includes the responsibility to make sure that a container, which was made available by the carrier specifically for the carriage, is fit to carry the cargo placed therein. 

Furthermore, the provisions of arts 3.8 and 4.1 of the Hague-Visby Rules mean that the carrier cannot escape liability for failing to exercise this duty of due diligence by relying on one of the exceptions listed in art 4.2 of the Hague-Visby Rules, or on the exoneration clauses in the bill of lading (Hoge Raad (Dutch Court of Cassation)) 1 February 2008, Schip en Schade 2008/46 ‘NDS Provider’). Eimskip’s reliance on the container clause in the bill of lading terms, which stipulates that defects to a container that could have been noticed at a reasonable inspection during loading relieve the carrier from liability, is therefore in vain. The fact that the container was not provided by the contractual carrier itself, but by the actual carrier, CMA CGM, does not change this. As the contractual carrier, Eimskip used the container and contractually provided it, so the aforementioned duty of care rests on Eimskip. On the basis of Eimskip's own submission that the container had a noticeable defect, Eimskip failed to comply with this duty of care. 

As the cargo could not enter the EU, it was transported back to China on the instructions of Xpressfish in order to sort out and refreeze the fish, after which the remaining fish was sold. There is insufficient evidence that there were other possibilities to realise a higher residual value. The rejection of the entire content of the container by the British health authority suggested a total loss of the cargo. Eimskip is liable for this loss as carrier. The fact that the return carriage took place in the same unfit container, which possibly resulted in a lesser amount of residual product, is not a circumstance which should be for the account of Xpressfish. Eimskip should have provided a different container in good working order.