This was a trial of preliminary issues. The claimant (Kyokuyo) was the receiver of three container loads of frozen tuna shipped at Cartagena, Spain for carriage by the defendant (Maersk Line) to Yokohama, Japan. The three containers (referred to in the judgment as Container A, Container B and the Replacement Container) were discharged in Yokohama on different dates in February and March 2013. The contents of Container C had been re-stuffed into the Replacement Container in Barcelona after a possible malfunction of Container C’s refrigeration equipment. Container A was discharged to the claimant at Yokohama on or about 15 February 2013. Container B was discharged at Yokohama on or about 22 February 2013, carried by road to Shimizu and delivered to the claimant on 27 March 2013. The Replacement Container was discharged at Yokohama on or about 1 March 2013 and delivered to the claimant at Shimizu on 5 March 2013.

The three containers contained frozen bluefin tuna loins weighing between 20 kg and 75 kg each and bags of frozen tuna parts, each bag weighing around 20 kg. The frozen loins were stuffed into the containers as individual items of cargo without any additional packaging. The bags were stuffed into the containers as individual bags. Container A contained a mixture of frozen loins and bags (206 loins and 460 bags). Container B and the Replacement Container contained frozen loins (520 and 500 respectively).

The claimant alleged the tuna as delivered was damaged by raised temperatures and/or rough handling during re-stuffing into the Replacement Container. The claimant said the damage should be valued at GBP 858,000 in aggregate.

The parties agreed that Maersk Line’s liability (if any) was governed by its standard terms and conditions of carriage (the Maersk Terms) but disagreed which set of rules applied - the Hague-Visby Rules or the Hague Rules. The contract was for carriage to and discharge at Yokohama of 12 ‘super freezer’ containers. Maersk Line drew up and provided Kyokuyo with a draft, straight consigned bill of lading naming Caladeros del Mediterraneo SL as shipper and the claimant as consignee. No bill of lading was issued for any of the containers. In order to avoid delay in delivery, the claimant requested Maersk Line (who agreed) to issue sea waybills. The sea waybill for Container A made no mention of the bagged tuna parts but stated a total weight of 18,740kg for the 206 tuna loins whereas the draft bill of lading had stated the weight for 666 items.

The preliminary issues to be tried were:

1. Is liability limited pursuant to art 4.5 of the Hague Rules or is it limited pursuant to art 4.5 of the Hague-Visby Rules (whether applicable compulsorily or contractually)?
2. Whichever of the Hague or Hague-Visby Rules applies, does limitation fall to be calculated by reference to the cargo in all three containers collectively, should limitation be calculated by separate treatment of the cargo in each container individually?
3. If liability is limited pursuant to art 4.5 of the Hague Rules, are the containers deemed to be the relevant package or unit for the purposes or the individual pieces of tuna?
4. If liability is limited pursuant to art 4.5 of the Hague-Visby Rules, are the containers deemed to be relevant package or unit for the purposes of art 4.5.a, or are the individual pieces of tuna the relevant packages or units? In particular:
   
   1. For the purposes of art 4.5.c, is it relevant to look at what is enumerated in the draft bill of lading, or is it only relevant to look at what is enumerated in the waybills?
   2. Were all or any of the individual pieces of tuna, packages or units enumerated in the relevant document as packed in each container for the purposes of art 4.5.c?

Held:

1. The Hague-Visby Rules apply where there is a contract of carriage covered by a bill of lading or similar document of title. Art 10 provides that the Hague-Visby Rules apply to cases where carriage is from a port in a contracting state. Here, carriage was from Spain which is a contracting state. Following the approach adopted by and since Pyrene Co Ltd v Scindia Navigation Co Ltd [1954] 1 Lloyd’s Rep 321 (CMI2100), art 1.b is satisfied where the terms of carriage require a bill of lading to be issued but no bill of lading is in fact issued. It is immaterial that no bill of lading was insisted upon. Liability is limited by art 4.5 of the Hague-Visby Rules which applied by the force of law except to Container B and the replacement container if Maersk Line proves the damage arose out of the final stage of transport after completion of the containers’ discharge at Yokohama. In which case liability is limited by clause 7.2(c) of the Maersk Terms.

2. If the Hague-Visby Rules apply (which they do), except for damage shown by Maersk to have occurred at the final stage of transit after discharge at Yokohama, each frozen loin as a separate unit attracts a separate limit of 666.67 units of account, and the limit of liability in respect of damage to the bagged tuna is the greater of 666.7 units of account and (2xW) units of account, where W is the gross weight in kg of the bagged tuna damaged. If the Hague Rules had applied (which they do not) each frozen loin as a separate unit would have attracted a separate limit of GBP 100, and each bag of bagged tuna in Container A as a separate package would also have attracted a separate limit of GBP 100.
    
3. The possible reading of art 4.5 of the Hague Rules for containerised cargo that is, by definition, packaged cargo, the containers being the only relevant packages was authoritatively rejected by The River Guara [1998] 1 Lloyd’s Rep 225. The focus in El Greco (Australia) Pty Ltd v Mediterranean Shipping Co SA [2004] Lloyd’s Rep 537(CMI1) on the word ‘units’ is on how the cargo was made up for stuffing into the container, not on how it might have had to be prepared for shipment without containerisation. Any given item of cargo cannot be both a package and unitised cargo. However, the cargo can be a mix of both. If liability had been limited by the Hague Rules art 4.5 each frozen tuna loin would have been considered a separate unit and each bag (for the bagged tuna in container A) would have been considered a separate package.
    
4. (a) By agreement it was only relevant to look at the waybills not what was contained in the draft bill of lading.
   (b) Under art 4.5.a and 4.5.c of the Hague-Visby Rules each frozen tuna loin was a separate ‘package or unit’, since they were identified and enumerated in the waybills as being the cargo and the language of the enumeration was consistent with the truth. As regards the bagged tuna in container A, the waybill made no mention of the bags of tuna thus there was only one ‘package or unit’, namely the container.