This was a dispute between the claimant insurers and the defendant shipowner regarding the reimbursement of EUR 4.8 million paid by the claimants to salvage company Smit Salvage BV (Smit) as a result of events occurring during the carriage of a military cargo on the MV Altinia, which was owned by the defendant and chartered to Saima Avandero (Saima). In particular, during the aforementioned carriage of goods, a fire had broken out on the vessel, requiring its salvage. The vessel was abandoned, and the cargo was rescued by Smit, who was subsequently paid compensation under a settlement with the claimants.

Pursuant to art 4.2.b of the Hague-Visby Rules, '[n]either the carrier nor the ship shall be responsible for loss or damage arising or resulting from - ... (b) Fire, unless caused by the actual fault or privity of the carrier'. According to the claimants, however, the defendant was liable in contract and/or tort, because the exemption provided by art 4.2.b of the Hague Visby Rules did not apply. In support of the above argument, they claimed that the 'non-carrier shipowner' could not, in any event, benefit from the exemptions and limits provided for by the Hague-Visby Rules, as it was not acting as a carrier or as a party to the contract of carriage - the carrier in this case was Saima.

The Court of first instance rejected this construction. The Court also declared that the claim for compensation against the defendant was extinguished due to limitation on an application of art 3.6 of the Hague-Visby Rules. The claimants appealed against the judgment, arguing that their claim sounded in tort, arising from the injurious event that led to the need for salvage.

Held: The appeal is dismissed. The first instance judgment is confirmed.

The bills of lading indicate that the shipper Saima is also the carrier. They contain a Himalaya clause which extends any limitation of liability and any immunity available to the carrier to the carrier's auxiliaries. In any case, the inclusion of a Himalaya clause is superfluous in carriage of goods contracts governed by the Hague-Visby Rules. By virtue of art 4 bis of the Rules, the liability regime envisaged for the liability of the maritime carrier is extended to any actions exercised against its employees and officers.

The Hague-Visby Rules system classifies a nautical fault as a voluntary act producing damage, a voluntary omission or negligence, inexperience, imprudence, or omission of care and attention or observance of rules and usages. By contrast, a commercial fault is recognisable when the lack of care and maintenance directly affects the cargo, or indirectly affects the parts of the ship intended for the custody of the goods. The carrier is responsible for damages resulting from its own personal fault or from the commercial fault of its auxiliaries, while the damage deriving from nautical fault and from what are generally called 'fortuitous' causes are borne by the owner of the goods.

This Convention derives from a compromise between Civil Law and Common Law systems, and responds to the needs of maritime operators by 'typifying' the liability of the maritime carrier with a list of events known as excepted perils. The uniform Conventional framework lists a series of hypothetical situations that exempt the carrier from liability for the loss of or damage to the goods transported, connected to a technical fact of navigation or to events related to carriage by sea, including nautical fault. Therefore, the distinction between nautical fault and commercial fault of the employees and agents of the carrier constitutes one of the most important criteria for allocating the burden of proof and responsibility between the carrier and the cargo interests in the regime provided for by the Hague-Visby Rules.

Other excepted perils include art 4.2.l of the Hague-Visby Rules, which specifies that '[n]either the carrier nor the ship shall be responsible for loss or damage arising or resulting from - ... (l) Saving or attempting to save life or property at sea'.

The transport in question was governed by the bills of lading, with the consequent application of the Convention. In fact, art 4 [sic: art 1.b] of the Convention explains that:

'Contract of carriage' applies only to contracts of carriage covered by a bill of lading or any similar document of title, in so far as such document relates to the carriage of goods by sea, including any bill of lading or any similar document as aforesaid issued under or pursuant to a charter party from the moment at which such bill of lading or similar document of title regulates the relations between a carrier and a holder of the same.

The Hague-Visby Rules therefore govern, which means that the limitation period under art 3.6 is applicable, as well as salvage expenses being part of the excepted perils and being subject to the regulations of the Convention under art 4.2.l if the event occurred during carriage performed under the bills of lading.