Carriage of a cargo of bananas from Puerto Bolivar (Ecuador) to Hamburg (Germany) by Seatrade on the MS Summer Wind, owned by WSC. On 10 January 2014 a sea waybill was issued for this carriage, on the form of Seatrade and signed by Seatrade’s agent in Ecuador ‘for/by the Master’, naming JasaFrut as shipper and AFC as consignee and notify party. The conditions of carriage on the back of the sea waybill included an identity of carrier clause and a paramount clause, and stated in art 5 (entitled ‘jurisdiction/applicable law’) inter alia: ‘(2) In as far as anything has not been dealt with by the terms and conditions hereof, Dutch Law shall apply’. AFC and M&F (the agent of AFC’s insurer), to whom AFC assigned its rights, claimed damages from Seatrade and WSC for deterioration of part of the cargo as established upon arrival in Hamburg.

Held: Whether AFC had title to sue at the time of the assignment, when its insurer still had to pay out, depends on whether AFC had become a party to the contract of carriage between Seatrade and JasaFrut. When determining which law is to be applied to answer that question, the conflict rule of art 10:162 of the Dutch Civil Code (DCC) does not apply because the said article only applies to carriage under a bill of lading. A sea waybill is not a bill of lading or a ‘similar document’ within the meaning of art 8:377 of the DCC. It follows from the applicable Rome I Regulation (593/2008/EC) that the question of whether a third party has become party to a contract must be answered using the law which, according to the Rome I Regulation, is applicable to the contract. Since the conditions of carriage of the sea waybill include a choice for Dutch law, which choice meets the requirements of the Rome I Regulation, it must be assessed by applying Dutch law whether AFC has become a party to the contract of carriage. This question is not governed by the Hague-Visby Rules, so it must be answered using internal Dutch law.

Since the sea waybill names AFC as consignee, the carrier had to deliver the cargo to AFC. It is likely that AFC took delivery of the cargo in Hamburg. Because of this delivery, AFC acceded to the contract of carriage concluded between JasaFrut and Seatrade. In view of the definition of ‘Merchant’ in the conditions of carriage, which includes inter alia ‘consignee’, in combination with the text of the identity of carrier clause (‘The contract is evidenced by the Merchant and the owner of the Vessel named herein’), it is held that JasaFrut and Seatrade agreed, pursuant to art 6:253 of the DCC, that a third party, namely the consignee, is entitled to derive rights from the contract of carriage. AFC has therefore become a party to the contract of carriage between JasaFrut and Seatrade, embodied in the sea waybill, meaning that AFC was entitled to claim at the time of the assignment.

Because a sea waybill is not a bill of lading or a ‘similar document’ within the meaning of art 8:377 of the DCC, art 10:162 of the DCC does not apply to the question of who is the carrier. This question must also be answered by applying Dutch law, the law chosen to govern the contract of carriage, as this law also governs the formation and validity of the contract of carriage, according to art 10.2 of the Rome I Regulation. According to the applicable identity of carrier clause, the owner of the vessel as named in the sea waybill (in this case the Summer Wind) is solely liable as carrier. Since WSC is the owner of the vessel, only WSC and not Seatrade can be held liable as carrier.

The paramount clause contains the following: ‘this Sea Waybill in sofar as it relates to Sea Carriage shall have effect subject to the Hague Rules or any legislation making such Rules or the Hague-Visby Rules compulsorily applicable (…)’. This constitutes a choice of law for the Hague Rules and not the Hague-Visby Rules as the Hague-Visby Rules are not mandatorily applicable to the contract of carriage.

The choice for a convention containing uniform private law and which is not (compulsorily) applicable based on the law of the country in which proceedings are commenced, such as the Hague Rules, is considered to be a choice of law within the meaning of art 3 of the Rome I Regulation, provided that the chosen convention allows such a choice. Because the provisions of the Hague Rules do not preclude the applicability of this convention by choice of law, the Hague Rules apply based on a choice of law. This choice for the Hague Rules is not affected by the first sentence of the paramount clause, which stipulates that the sea waybill is subject to the CMI Uniform Rules for Sea Waybills, which in their turn state the Hague-Visby Rules to apply. A reasonable interpretation of the paramount clause entails that a clearly set out choice of the Hague Rules must prevail over a choice of the Hague-Visby Rules which is indirect and veiled – it being incorporated by reference to a different document. The fact that art 4.3 of the abovementioned CMI Rules stipulates that the CMI Rules prevail over the carrier’s terms and conditions does not result in a different view, since this provision – it has not been argued, nor was it evident, that the parties had taken concrete account of it – was insufficiently apparent to weigh against a clear choice of the Hague Rules in the present paramount clause.

The burden of proof that the bananas were fit for carriage rests on M&F. For the moment, this evidence has been provided (see para 4.26 of the judgment). The carrier may therefore provide evidence to the contrary. The carrier may also provide evidence that (the damage has arisen because) the ripening process of the bananas had already started upon loading, which constitutes an ‘inherent defect’ (art 4.2.m of the Hague Rules) and which also is of importance for carriage suitability. The burden of proof regarding the exemption in art 4.2.m of the Hague Rules is on the carrier.