FCL/FCL Carriage of four 20’ containers with bales of tobacco on board the ms NDS Provider from Douala (Cameroon) to Amsterdam (Netherlands) under a master’s bill of lading on the NDAL form. In Amsterdam the cargo in two of the containers appeared to have been damaged by water. Cargo interests claimed damages from the shipowner and from NDAL (charterer of the vessel and owner of the containers which were made available to the shipper of the tobacco). NDAL does not dispute that the damage was caused by the defectiveness of the containers, but refers to the exoneration provision in the container clause in the bill of lading and also invokes art 4.2.i) (act or omission of the shipper of the goods) and art 4.2.n (insufficiency of packing) of the Hague-Visby Rules.

Held: Pursuant to art 3.1 and 3.1.c of the Hague-Visby Rules the carrier is bound to exercise due diligence before and at the beginning of the voyage to make the holds, refrigerating and cool chambers, and all other parts of the ship in which goods are carried, fit and safe for their reception, carriage and preservation. The text of this provision does not provide an unequivocal answer to the question whether containers that were made available by the carrier to the shipper for the carriage of the cargo have to be considered to be a part of the ship in which goods are carried or as a similar loading or stowage place. The travaux préparatoires, published by the Comité Maritime International (CMI) in 1997 and publicly accessible, do not provide any clarity on this point. And there is no leading view about the true interpretation of this provision among the countries which are associated with the CMI. Under these circumstances, when interpreting a provision of uniform private international law like art 3.1 and 3.1.c, decisive importance should be given to the object and purpose of the provision.

The purpose of the duty of care of the carrier arising out of art 3.1.a-c, is that the ship has to protect the cargo on board from perils of the sea, so that it is fit to carry the cargo, also referred to as the cargoworthiness of the ship. This entails that the carrier should also make sure that the containers which were made available by him for the carriage on board the ship, are fit to carry the cargo. This duty of care entails that, to the same extent as applies to the holds of the ship, water should not be able to enter those containers. Such an interpretation is supported by the fact that, in art 16.1 and 16.1.c of the United Nations Draft Convention on the Carriage of Goods (Wholly or Partly) (by Sea), version 13 February 2007 [which became art 14.1 and 14.1.c of the Rotterdam Rules], drawn up to replace the Hague-Visby Rules, which corresponds to art 3.1 and 3.1.c  of the Hague-Visby Rules, it is explicitly stipulated that the parts of the ship towards which the duty of care of the carrier extends, include the containers supplied by the carrier. In this case NDAL has breached its duty of care as a carrier, by providing containers which had holes in them as a result of corrosion, which caused seawater to easily enter the containers during carriage. Article 3.8 and art 4.1 of the Hague-Visby Rules entail that NDAL is not able to exonerate itself from liability by invoking art 4.2 or the exoneration clause in the bill of lading.