The plaintiffs were the subcharterer, time charterer, owners and operator of the MV Recife. The defendant was the shipper of a cargo of calcium hypochlorite which was placed into a container and loaded on board the plaintiffs' ship for carriage from Durban, South Africa, to Savannah, USA. An explosion and fire on board caused damage to the cargo and the plaintiffs alleged that the damage was caused by the defendant's negligent failure to maintain adequate process and quality control over the raw materials used by it in the production of calcium hypochlorite cartridges, thereby allowing a contaminant or defect in the product or its packaging.

The plaintiffs relied on art 4.6 of the Schedule to the Carriage of Goods by Sea Act 1 of 1986 (which is equivalent to the Hague-Visby Rules) and argued that the defendant as shipper of a cargo of an inflammable, explosive or dangerous nature is liable for all damages arising out of, or resulting from, such shipment if the carrier, master or agent had not consented to their carriage with knowledge of their nature and character. To this, the plaintiff argued that even if the defendant had declared that the cargo was dangerous, the defendant would still be liable because the defendant failed to bring to the plaintiffs' attention the special character of the cargo - that it was contaminated or defective and therefore different in kind to that which was declared.

The defendant argued that the plaintiffs were not entitled to rely on art 4.6 of the Hague-Visby Rules because the plaintiffs were negligent in stowing the container on the top tier of the on-deck stowage, thereby exposing the cargo to radiant heat which contributed to the explosion.

Held: Judgment for the plaintiffs.

The Court found in favour of the plaintiffs’ expert evidence which opined that 'normal' calcium hypochlorite does not explode spontaneously and that this specific shipment of calcium hypochlorite created a risk which the plaintiffs as carriers never contracted to bear or consented to with knowledge of its nature and character. The Court also found that the plaintiffs were not negligent in their stowing of the container because the latest version of the International Maritime Dangerous Goods Code had dropped the warning that calcium hypochlorite might decompose violently if exposed to direct sunlight. The container was appropriately stored away from accommodation spaces and where it would be easily accessible in the event of a fire.

The plaintiffs were therefore not precluded from relying on art 4.6 of the Hague-Visby Rules for an indemnity against the defendant. The Court also clarified that art 4.3 of the Hague-Visby Rules (which provides that the 'shipper shall not be responsible for loss or damage sustained by the carrier or the ship arising or resulting from any cause without the act, fault or neglect of the shipper, his agents or his servants') does not qualify any liability under art 4.6 because it is expressed in negative terms. The shipment of dangerous goods is still an act on the part of the shipper, regardless of whether it is due to any fault or neglect.