The claimant claims the sum of USD 22,907.77 against the ship MV Markab for damage to cement carried from Trinidad to Grenada on or about 30 April 1999. In the process of offloading the cement, the claimant's clerk observed wet and hard cement on the ship. Of the 9,415 bags shipped from Trinidad, 6,685 bags were offloaded and 2,730 bags left on board. The master's evidence is that the vessel encountered heavy seas during the voyage. As a consequence, water ran over the hatches. Having arrived in Grenada, he inspected the hatches and found that some of the cargo on the starboard side of the vessel was wet. He thereafter carried out a full inspection which revealed damage to the cargo on the starboard side of the hatch.

The claimant submits that the Carriage of Goods by Sea Act Cap 43 of the Revised Laws of Grenada is inapplicable to the present facts, as the goods were not shipped from any port in Grenada to another port in or outside of Grenada and that the liability of the owner will have to be determined in accordance with the common law. The defendant, on the other hand, submits that the Carriage of Goods by Sea Act does apply and that the defendant is exempted from liability under well-accepted maritime practices and customary international maritime law.

Held: Judgment for the claimant.

The applicability of the Carriage of Goods by Sea Act, Cap 43 of the Revised Laws of Grenada, is set out in s 3 of the Act. That section provides that the Act shall have effect in relation to and in connection with the carriage of goods by sea in ships carrying goods from any port in Grenada to any other port whether in or outside of Grenada. In this case, the goods were shipped from Trinidad to Grenada. Therefore, the Act is not applicable to the present facts. Every bill of lading issued in Trinidad which contains or is evidence of a contract for the carriage of goods by sea from any port in Trinidad and Tobago to any other port, whether in or outside of Trinidad and Tobago, carries an express statement that it is to have effect subject to the provisions of the Rules of Trinidad's Carriage of Goods by Sea Act (See s 4, Carriage of Goods by Sea Act Chap 50:02, Laws of Trinidad and Tobago). The Rules referred to are in reality the codification of the Hague Rules adopted at the International Conference on Maritime Law held at Brussels in October 1922. As of the time of shipment, Trinidad had not by then ratified the Brussels Protocol of 1968 amending the Hague Rules, commonly known as the Hague-Visby Rules which are scheduled to the COGSA of 1971.

Article 3 of the Hague Rules provides in part that the carrier shall be bound before and at the beginning of the voyage to exercise due diligence to: 'Make the ship seaworthy; Properly man, equip, and supply the ship; Make the holds, refrigerating and cold chambers, and all other parts of the ship in which goods are carried, fit and safe for their reception, carriage, and preservation.'

Article 4 provides:

1. Neither the carrier nor the ship shall be liable for loss or damage arising or resulting from unseaworthiness unless caused by want of due diligence on the part of the carrier to make the ship seaworthy and to secure that the ship is properly manned, equipped and supplied and to make the holds, refrigeration and cold chamber, and all other parts of the ship in which good are carried fit and safe for their reception, carriage and preservation in accordance with the provisions of paragraph 1 of Article 3. Whenever loss or damage has resulted from unseaworthiness, the burden of proving the exercise of due diligence shall be on the carrier or other person claiming exemption under this Article.

2. Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from:

Act, neglect, or default of the master, mariner, pilot or the servants of the carrier in the navigation or in the management of the ship.
Fire, unless caused by the actual fault or privity of the carrier
Perils, dangers, and accidents of the sea or other navigable waters.
Act of God.

Counsel for the defendant states, in his submissions, that the ship was seaworthy within the meaning of the Act, that the owner had discharged his obligation to ensure the preservation of the ship and cargo and that the cargo holds were properly sealed and made fast. These conclusions are not supported by facts or evidence. Under art 3, the burden of proving due diligence is on the party claiming the exception. The facts stated fail to demonstrate that the holds were fit and safe for the carriage of the goods in question or that the hatches were properly sealed during the voyage. All that is stated is that water ran over the hatches during heavy seas. The carrier having failed to show that the goods were properly cared for, the court can draw an inference that they were not. In addition, the carrier has failed to present an evidentiary basis to rebut such an inference.

The defendant submits that it is exempted from liability since the conditions presented during the voyage amount to a peril at sea and that safe delivery of the cargo was made impossible by an act of God. This exception cannot be invoked in cases where the reason that the peril of the sea operated was due to the carrier's negligence or breach of its art 3 obligations. In terms of weather, only such weather which was unpredictable and unforeseeable would qualify. On the facts presented here, the court is not satisfied that the conditions encountered by the ship MV Markab could not and should not have been contemplated by the shipowner. High seas between Trinidad and Grenada are hardly exceptional. Therefore the possibility of encountering them should have been anticipated. Therefore the facts as presented do not fall under the exception of peril of the sea.

Equally, the defendant cannot succeed under the Act of God exception. Not only must it be shown that the incident was due directly and exclusively to natural causes, but also that it could not have been prevented by any amount of foresight and pains and care reasonably to be expected from the defendant. This has not been shown by the carrier. The burden was on the defendant to show that the damage occurred without want of due diligence on the part of the owner/carrier; that it was as a result of a peril of the sea or an Act of God. The defendant has failed to discharge that burden. Accordingly, the defendant is liable for the damage.