This case involved carriage by sea of a reefer container with frozen products from Radicatel, France, to Noumea, New Caledonia, on the Baltic Klipper, a ship owned by Baltic Klipper Shipping Co NV (Baltic). A bill of lading was issued on the Seatrade form and signed by the French company Sea Shipping Services ‘as agent to carrier for/by the Master’. The bill of lading named Etablissements Bargibant SA (Bargibant) as consignee. The temperature instruction in the bill of lading was stated as 'Reefer settings -20° C Ventilation closed Floor drains open’. The reefer container was loaded onto the ship on or about 8 October 2014. On 10 October 2014 it became clear that the reefer container no longer functioned as a result of a defective controller. During the passage through the Panama Canal on 19 October the controller was replaced, after which the reefer container functioned properly again. Bargibant and its insurer, Chubb Insurance Company of Australia Ltd (Chubb), claimed compensation from Seatrade Group NV (Seatrade) and Baltic for damage to the cargo discovered on arrival in Noumea. The interim judgment (see CMI625) obliged Bargibant and Baltic to prove that the frozen products had been received by the carrier in a condition that was fit for carriage.

Held: It has not been established that the carrier exercised due diligence in respect of the proper functioning of the container.

According to Dutch law, the standard of proof is ‘a reasonable degree of certainty’. This implies a probability of at least 75%. It did not appear on arrival in New Caledonia that the frozen products had gone bad. The survey report submitted by Seatrade stated that 'The reefer container was unloaded at Noumea on Wednesday November 5, 2014. No unpleasant odour was noticed'. Fitness for carriage may be assumed in this particular case if: (a) the frozen products were sufficiently deep-frozen at the time they were received for carriage; and (b) there were ice crystals present on the exterior of these products at that time. After all, ice crystals are a sign that the products have completely or partially thawed at some time.

The documents submitted by Bargibant and others provide many indications that the frozen products were sufficiently frozen (as under (a)) in the weeks prior to the receipt for carriage, while indications to the contrary are absent. Moreover, there is nothing to suggest that ice crystals were present on the frozen products at the time of receipt for carriage (as under (b)). In view of the abovementioned standard of proof, Bargibant and others have succeeded in proving that the frozen products were received by the carrier in a condition that was fit for carriage.

Now that it has been established that the carrier received the frozen products in a condition fit for carriage and that the shipment was discharged in a damaged condition in the port of Noumea, it follows that this damage occurred during the period of responsibility. Pursuant to the applicable Hague-Visby Rules, the carrier is in principle liable for this damage.

Pursuant to arts 3.1.a-c of the Hague-Visby Rules, the carrier is bound before and at the beginning of the voyage to exercise due diligence to make the ship seaworthy and cargoworthy. The Hague-Visby Rules encompass a system of ‘overriding obligations’. As a consequence of this system, the breach by the carrier of the abovementioned duty to exercise due diligence for the seaworthiness and/or the cargoworthiness of the ship bar the carrier from successfully relying on the exonerations of art 4 of the Hague-Visby Rules.

Bargibant and others hold the carrier liable for the malfunctioning of the present reefer container on board of the Baltic Klipper during its voyage from France to New Caledonia. Whether the container in the present case has to be regarded as part of the ship, and not as packaging of the cargo, and the care for the proper functioning of the container is therefore part of the abovementioned duty in respect of seaworthiness and cargoworthiness of art 3 of the Hague-Visby Rules, depends on the answer to the question whether the container has been made available by the carrier to the consignor. See Hoge Raad 1 February 2008, S&S 2008/42; CMI158 ‘NDS Provider’. Because in the present case the reefer container has been made available by the carrier, Seatrade has the obligation to state and, if necessary, prove facts and circumstances from which it must follow that it has exercised due diligence for the proper functioning of the reefer container before and at the beginning of the voyage.

Sea Trade and others have submitted a so-called ‘pre-inspection report’, which shows that the container functioned properly on the date of inspection. However, it follows from the inspection protocol, also submitted by Seatrade, that this inspection report was only valid for 30 days. This inspection report was not valid shortly before and at the beginning of the sea voyage. In that respect, Seatrade and others have not complied with their obligation to exercise due diligence. This conclusion is not affected by the fact that, as claimed by Seatrade and others, the reefer container was not used during the period between the inspection and the start of the sea voyage in question, nor by the fact that the inspection protocol merely contains recommendations, as it is generally known that the sea voyage from France to New Caledonia would take several weeks. Seatrade and others have stated nothing about the care that they have exercised in respect of the reefer container between the receipt and the loading of the container on board.