Carriage under a named bill of lading of inter alia a crane sold by Mammoet Europe to Mammoet Australia and 98 mining shields sold by Caterpillar Europe to Caterpillar Australia from Schiedam (the Netherlands) via Philadelphia (USA) to Fremantle and Mackay (Australia). After setting sail from Schiedam on 1 February 2012, the vessel encountered heavy weather on the Northern Atlantic ocean. On 12 February 2012, the ship reported that a part of the mining shields stowed in the holds had broken loose and shifted, resulting in damage to the mining shields and the crane. After arrival in Australia the crane and the mining shields were repaired. The shipowner declared general average. In the claim validation proceedings, the cargo interests demanded a declaratory judgment that the shipowner was liable for the cargo damage and that they were not obliged to contribute in general average, or that the shipowner was liable for contributions in general average that were paid and the cargo interests were accepted as claimants in respect of the distribution of the limitation fund.

Held: Pursuant to art 10:162 of the Dutch Civil Code (DCivC), the issues of title to sue and who can be sued (as a carrier) are to be determined in accordance with the law of the country of the agreed destination, in this case Australia. Under Australian law, the ‘consignee’ – and in special circumstances the ‘shipper’ – has title to sue under a named bill of lading. In this case, both Mammoet Australia and Caterpillar Australia have title to sue as ‘consignee’, as said special circumstances are not applicable.

The shipowner, named as ‘carrier’ on the bills of lading, is deemed to be the carrier under Australian law and is in that capacity liable for the cargo damage, since the goods were not delivered to the port of unloading in the same condition they were in when received for carriage, save for an exception or limitation of liability. In that respect the shipowner relies on art 4.2 chapeau and art 4.2.c of the Hague-Visby Rules and argues that the damage is caused by a ‘peril of the sea’.

It follows from the liability system of the applicable Hague-Visby Rules that the burden to state a prima facie case, and the burden of proof regarding the incident that is claimed to be a 'peril of the sea', and regarding causation and loss/damage, rests on the carrier claiming there was a peril of the sea.

Perils of the sea are erratic, violent and overwhelming events which, whether foreseeable or not, are saliently peculiar to maritime navigation. Foreseeable perils of the sea also fall within this exception, provided that the harmful consequences were unavoidable. Essential for relying on the perils of the sea exception is not the unforeseeability, but the unavoidability. On this point the cargo interests have not raised an independent defence, so that, if the shipowner provides evidence that there were waves (two waves coming from portside with an angle of approximately 70 degrees to the generally prevailing direction of the waves) of more than 10 meters high and that they caused the ship to list 40 degrees, there was a case of perils of the sea. Furthermore, the shipowner has to prove that these excessive forces caused the damage.

Cargo interests argue in vain that the alleged exceptional waves should be unforeseeable, taking the season into account, to justify reliance on the exception of perils of the sea. Foreseeable perils of the sea also fall within the exception, provided that the harmful consequences were unavoidable. If it becomes established that the peril occurred and that the damage was a result of that, the shipowner’s reliance on the exception will be successful.

According to art 356 of the Dutch Commercial Code (DCommC) the weighing of the evidentiary value of the vessel’s log and the statements of the master and crew regarding the events during the voyage is left to the court. The master did not turn to the Dutch consular official in Philadelphia in order to draw up a sea protest, as prescribed in art 353(2) and (3) of the DCommC. The 'interview notes', submitted by the shipowner, have not been signed by the master or the second officer. The shipowner did not submit a statement from the boatswain, who allegedly inspected the cargo shortly before the incident. With that, the shipowner has not (yet) proved the alleged incident, let alone the causation, so that the shipowner will be given the opportunity to provide that evidence.

If the shipowner succeeds in providing that evidence, the question whether the damage is wholly or partly the result of faulty stowage of the cargo will need to be dealt with. The survey reports submitted by the parties and other evidence, provide enough prima facie evidence that the damage is wholly or partly the result of faulty stowage of the cargo. The carrier is allowed to provide evidence to the contrary. Also therefore it has not been established that the carrier properly and carefully loaded, handled, stowed, carried, kept, cared for, and discharged the goods carried in accordance with art 3.2 of the Hague-Visby Rules. The carrier is allowed to provide evidence of sufficient care.

As the cargo interests have not sufficiently refuted the fact that the vessel had been sailing the Northern Atlantic in heavy weather for two weeks already and since the cargo would have shifted much earlier, if the metacentric height (GM) played the essential role claimed by the cargo interests, the claim that the carrier did not exercise due diligence to make the ship seaworthy – art 3.1.a of the Hague-Visby Rules – does not hold.