Carriage by sea of a transformer weighing 130 tonnes on board the MS Pietro Benedetti from Bilbao (Spain) to Houston (United States) performed by Onego at the order of LPL. The fixture was concluded in correspondence between Euroaméricas, as agent of carrier, Onego, and LPL. The fixture recap that Euroaméricas passed on to LPL stated, inter alia: ‘can fix as follows: […] MV Pietro Benedetti […] for: — account Euroamericas -owners Onego Shipping & Chartering B.V. […] owners bills of lading to be used as attached […] Original Ocean Bills of Lading MUST BE released to LPL (48) hours after ONEGO receives agreed payment.’ Onego issued a transport document titled ‘ONEGO LINER BILL OF LADING’, in which Transgroup was named as consignee and which contained the following clause: ‘SHIPPED on board in apparent good order and condition […] to be delivered […] unto the lawful holder of the Bill of Lading […]. One original Bill of Lading must be surrendered duly endorsed in exchange for the cargo or delivery order, whereupon all other Bills of Lading to be void.’ The box on the transport document intended for the description of the goods received for carriage was filled in, inter alia, as follows: ‘THIS IS A NON NEGOTIABLE EXPRESS BILL OF LADING’ and in the box ‘Number of original Bills of Lading’ was filled in: ‘0 – NONE’. The following stamp was applied on the transport document: ‘COPY NOT NEGOTIABLE’. The ‘ONEGO LINER Terms and Conditions’ applied to the carriage and art 2 (‘CLAUSE PARAMOUNT AND JURISDICTION’) read: ‘It is mutually agreed that The Hague Rules […] as enacted in the country of shipment shall apply to this Bill of Lading. […] b) Trades where the Hague-Visby Rules apply. In trades where […] — the Hague-Visby Rules — apply compulsorily, the provisions of the respective legislation shall apply to the Bill of Lading. […] e) The contract evidenced by this Bill of Lading shall be governed and construed by Dutch Law, and the Court in Rotterdam shall have exclusive jurisdiction over any dispute arising under this Bill of Lading.’ At the time of, or shortly after, the discharge in Houston by the crew by means of the ship’s crane, damage to the valve and flange of the transformer was discovered. LPL and Transgroup claimed for compensation of this damage at an amount of EUR 454.437.

Held: Article 2 of the Conditions of Carriage contains a choice of law clause that meets the requirements of art 3 of the Rome I Regulation (also in view of no 13 of the preamble). Parties thereby chose the application of the Hague Rules, or at least the application of the national state law in which they have been incorporated. In case of mandatory application of the Hague-Visby Rules, the relevant provisions of this Convention are applicable and Dutch national law applies supplementary.

As the port of loading is in Spain, and Spain is a Contracting State within the meaning of art 10 of the Hague-Visby Rules, the Hague-Visby Rules apply to the carriage in question if the transport document is to be considered a bill of lading or ‘any similar document of title’ within the meaning of art 1.b of the Hague-Visby Rules.

Article 1.b states, in Dutch: ‘Vervoerovereenkomst’ slaat slechts op een vervoerovereenkomst, waarvan blijkt uit een cognossement of enig dergelijk stuk recht gevend op het vervoer van goederen over zee […]’. This translation corresponds with the authentic French text of the Convention.

The transport document in this case is not a ‘document of title’ as meant in the English translation of the Hague-Visby Rules. This does not necessarily result in the non-applicability of the Hague-Visby Rules. The authentic French text of the Hague-Visby Rules does not provide a basis for the requirement that is derived from the English translation, being that the transportation document must be a ‘document of title’ in the way that property may be transferred.

A further indication that it was not intended to set such a requirement can be found in art 6 of the Hague-Visby Rules. This article explicitly allows parties to agree, within the scope of the Hague-Visby Rules, on specific provisions with respect to special shipments. In such case, the transport document to be issued is a non-negotiable document instead of a bill of lading. In this particular case there is no question of such a special shipment. Taking into account the contents and the effect of a bill of lading, the transportation document issued by Onego cannot be regarded to be a bill of lading in the strict sense, but rather as a document giving the prospect of an original bill of lading, but from which Onego removed the normal bill of lading effects by the manner in which it was filled in and issued. For this reason, the document falls within the description of ‘document similaire formant titre pour le transport des marchandises par mer’/’enig dergelijk stuk recht gevend op het vervoer van goederen over zee’. This means that the Hague-Visby Rules are mandatorily applicable to the underlying carriage.

Onego has stated that it transformed the transport document into a sea waybill in line with its preferences and that it always uses the standard document as a sea waybill and never tries to issue an original bill of lading. From this statement it follows, contrary to the impression that was created by the ‘recap’, that the intention from the beginning was to issue not a bill of lading, but a transport document with the effect of a sea waybill. It has neither been argued, nor has it become evident, that Onego has informed LPL (or Euroaméricas) of this intention.

The argument that LPL agreed to the issuance of a non-original ‘express release’ document is incorrect. Because only a blank bill of lading (a bill of lading without the additional ‘This is a non-negotiable Express Bill of Lading’ and ‘Copy not negotiable’) was sent prior to the issuance of the document, there is no prior agreement. Nor is there enough evidence for an agreement after the facts.

The absence of protest by LPL cannot be considered as implied consent to the issuance of a document titled ‘bill of lading’ but with the actual effect of a sea waybill, especially when considering that Onego created the impression with LPL that another document would be issued.

In view of the special circumstances of this case, being that the document of carriage can neither be considered a bill of lading nor a sea waybill, LPL and Transgroup are both considered to be parties with title to sue with respect to possible carrier liability in connection with this document.

It is established that the transformer (wet, covered in some scratches and rust, but without a dent in the valve) was received for carriage by Onego, but not delivered in the same order and condition at the place of destination. For this it is not important to determine how, or exactly when, the damage occurred or could have occurred during the period of responsibility of Onego (up until the discharge of the goods). In principle, Onego is therefore liable for the damage to the transformer. There has been no claim for exemption of liability within the meaning of art 4.2 of the Hague-Visby Rules.

The court commented in its English summary that this leads to the same result as the English case law invoked by the claimant, JI MacWilliam Co Inc v Mediterranean Shipping Co SA (The Rafaela S) [2005] UKHL 11, [2005] 2 AC 423 and Kyokuyo Co Ltd v Maersk Line [2017] EWHC 654 (Comm), [2017] 1 Lloyd’s Rep 580 (CMI13), albeit on partially different grounds and against a somewhat different factual and statutory background.