The plaintiff was the shipper of a cargo of supawood and particle board which was loaded on board the defendant’s vessel for carriage under a liner bill of lading. The cargo shifted and collapsed because of improper stowage.

The plaintiff’s claim was founded on art 3.2 of the Schedule to the Carriage of Goods by Sea Act 1 of 1986 (which is equivalent to the Hague-Visby Rules)) which provides that the defendant as carrier shall properly and carefully load, handle, stow, carry, keep, care for and discharge the cargo carried.

The bill of lading, however, stated that the loading, discharging and delivery of the cargo shall be arranged by the carrier’s (the defendant's) agents. The bill of lading was also claused as 'FIOS' which means 'free in and out stowed'. This could be understood to mean that no obligation rested upon the defendant as carrier in respect of loading, stowage or discharge of the cargo. The defendant relied on these clauses as a defence to the plaintiff’s claim. The defendant further relied on art 4.2.i and 4.2.q of the Hague-Visby Rules, arguing that the damage to the cargo had occurred as a direct result of an act of omission (the incorrect stowage of the cargo) by the plaintiff and that this damage occurred without the actual fault or privity of the defendant.

The plaintiff contended that the defendant was not entitled to rely on the FIOS clause because that would be contrary to the prohibition under art 3.8 of the Hague-Visby Rules which bars any clauses in the contract of carriage which is inconsistent with the Hague-Visby Rules and which relieves the carrier of liability.

Held: Judgment for the plaintiff.

The defendant was not entitled to rely on art 4.2.i and art 4.2.q of the Hague-Visby Rules. With regard to art 4.2.i, the damage had not arisen from any act or omission of the plaintiff because the stevedores engaged by the plaintiff to load the cargo had not done so. As for art 4.2.q, the master had put to sea despite his misgivings concerning the stowage and lashing of the plaintiff’s cargo. Hence, it could not be said that there was no fault or neglect on the masters’ part or that the master had not contributed to the damage.

Notwithstanding the 'FIOS' inscription on the bill of lading, the defendant retained an overriding or residual obligation to ensure that the plaintiff's cargo was properly and carefully stowed in the vessel. It did not contract out of liability for breach of that obligation. Nor could it validly have done so, unless the plaintiff had itself 'take(n) into (its) hands the business of loading and stowing the cargo'; and this the plaintiff did not do. The defendant could not validly have contracted out of such liability because such an agreement would have fallen foul of art 3.8 of the Hague-Visby Rules, which render null and void and of no effect any clause, covenant or agreement in a contract of carriage relieving the carrier or the ship from liability for, inter alia loss or damage to goods arising from failure in the duties and obligations provided in that article, one of which duties is properly and carefully to stow the cargo.