The plaintiff is a Lebanese company involved in the cigarette trade. The first and second defendants are the owner and the manager of the Sextum. The third defendant is the representative of the first and second defendants, while the fourth defendant, Hessenatie NV, is a logistics company based in Antwerp.

The plaintiff loaded two containers each containing 900 boxes of cigarettes onto the vessel. The second defendant issued two bills of lading. The plaintiff alleges that the defendants had to deliver the goods to Rotterdam, the Netherlands, to the legal holder of the bill of lading. The goods were loaded on board and transported to Antwerp, Belgium, where they were unloaded and taken into the possession of the fourth defendant, with a view to being transported by road from Antwerp to Rotterdam.

The plaintiff claims that in breach of the agreement and/or in negligence the goods were delivered to unauthorised persons, who appeared to be persons who were entitled to receive them for transport, with the result that the goods were lost. The plaintiff claims for damages for breach of contract of carriage by sea and/or for negligence.

The fourth defendant raised a preliminary objection regarding the jurisdiction of the Maritime Court, based on the fact that it had no contractual relationship with the plaintiff and thus the Maritime Court could not have jurisdiction on the basis of a civil offence action, namely that of negligence.

Held: The four defendants are jointly and severally liable for the full value of the plaintiff's claim.

The Maritime Court derives its jurisdiction from the provisions of ss 19(a) and 29(2)(a) of the Law on Courts of 1960 (Law 14/60 as amended). Based on the above provisions, the Administration of Justice Act 1956 (UK) (the UK Act) is adopted and implemented in Cyprus.

The position of the fourth defendant that the Court has no jurisdiction because it has no contractual relationship with the plaintiff is directly answered in the case Sevegep Ltd v United Sea Transport (1989) 1 AAD (E) 729, 732-734, which held that s 1(1)(h) of the UK Act embraces claims sounding in contract as well as in tort, so long as they arise out of an agreement relating to the carriage of goods in a ship. There must be a reasonable direct link between the claim and the carriage agreement. This position was formulated following an examination of English judgments relating to the relevant provisions of Scottish law and in particular the decision of the House of Lords in The Sandrina. Thus, if it turns out that the fourth defendant is responsible for the civil offence of negligence, the Maritime Court has jurisdiction, since it is clear that this offence is covered by the contract of carriage.

Regarding the general position of the fourth defendant regarding the lack of jurisdiction of the Cyprus Maritime Court, a position that was not raised by the other defendants, the Court notes that, as in the case of Cyprus Potato Marketing Board v Primlaks (Pacific Violet) BV (1990) 1 AAD 219, the bills of lading containing the disputed contract were issued in Cyprus and specifically in Limassol, and the goods were loaded in Limassol. Thus, the position of the fourth defendant is without grounds, as there is a necessary connection of the case with Cyprus that gives jurisdiction to the Maritime Court.

The first, second and third defendants argued that under the contract of carriage they had the right to use other means of transport, which they exercised by transporting the goods by sea to Antwerp and from there by road to Rotterdam. Their claim that they bear no responsibility is twofold. First, they did not own the goods at the time of their loss and, secondly, they were released from liability, based on the combined provisions of cll 3 and 17 of the bill of lading.

Clauses 3 and 17 of the bill of lading provide as follows:

3. SUBSTITUTION OF VESSEL, THROUGH TRANSPORT, TRANSHIPMENT AND FORWARDING. The Carrier agrees to carry the goods from the Port of Loading to the Port of Discharge and shall have the right at its sole discretion to substitute other vessels, feeder ships, lighters or other modes of transport for the vessel named herein (Box 6). If boxes 5 and/or 9 are filled out, the Carrier will, acting as shipper's agent, only arrange for transport of the cargo by other Carriers from the place of origin to Port of Loading and/or from Port of Discharge to destination and during such segments of Through Transport, handling and storage of the goods shall be subject to the freight contracts and tariffs of the other Carrier. It is expressly understood that the Carrier's liability as 'Carrier' applies only from Port of Loading to Port of Discharge under this Bill of Lading, and only while the goods remain in its actual custody and control whether as Carrier or Bailee. All forwarding and transhipping shall be for the account and risk of the goods. Copies of contracts of pre-Carriers or on-Carriers, as well as their tariffs, may be obtained from MSC upon request.

17. PERIOD OF RESPONSIBILITY. The Carrier or his agent shall not be liable for loss or damage to the goods during the period before loading and after discharge from the vessel, howsoever such loss or damage arises. Goods in the custody of the Carrier or his servants before loading and after discharge whether being forwarded to or from the vessel or whether awaiting shipment landed or stored, or put into hulk or craft belonging to the Carrier, or not or pending transhipment at any of the whole transport are in such custody at the sole risk of the Merchant and the Carrier shall not be liable for loss or damage arising or resulting from any cause whatsoever. If goods are shipped to or from the USA US COGSA shall apply before loading and after discharge as long as the goods remain in the actual custody and control of the Carrier.

Referring to cl 3 of the bill of lading, 'Rotterdam in transit' is referred to as the port of unloading in Box 5 of the bill. The word 'transit' is written in Box 9, but it cannot be considered that box 9 is also completed, because box 9 must contain the 'final destination (through transport)'. In this case the goods were unloaded in Antwerp. Clause 3 relieves carriers of liability for that part of the carriage between the port of unloading and the final destination and as expressly stated their liability is limited between the port of loading and the port of unloading. In the present case, since the port of unloading is designated Rotterdam, it should be considered that the disclaimer invoked by the first, second and third defendants under cl 3 of the bill does not apply.

The fourth defendant acted as a representative of the first, second and third defendants, even though they were independent contractors. The choice of a reliable logistics company does not absolve the carriers from liability. In the present case, it is clear that the procedure followed was anything but safe, because the goods could be delivered to unauthorised persons. It is further apparent from the evidence that the instructions given to the fourth defendant by the carriers contributed to this. It is obvious that negligence was shown in this case, both by the carriers and the fourth defendant.

Exemption from liability must be based on clear and explicit terms in the bill of lading in order to have any effect. It has been decided that words such as 'at shipper's risk' or 'at charterer's risk' in maritime transport contracts do not relieve the shipowner of liability for negligence and the burden of proving that it was not negligent, unless there is a specific condition in the contract that explicitly exempts from negligence.

The first, second and third defendants have withdrawn their claim that their liability is limited to GBP 100 per box, so there does not seem to be any serious dispute over the amount of the claim. The amount of the claim has been proven.