This case involved carriage by sea under a clean bill of lading of 124 metal coils from Porto Marghera (Italy) to Houston (United States) on board the Erasmusgracht. On arrival in Houston the coils were found to be damaged by corrosion. Macsteel International USA Corp (Macsteel) brought an action for damages against Rederij Erasmusgracht (Erasmusgracht).

Held: First instance judgment largely upheld. The assertion that the cargo had been exposed to water prior to loading, or even prior to the packing of the metal coils, without an explanation as to how, at what time, and to which degree, the metal coils had been exposed to water prior to the packing and loading, is unlikely, considering the fact that the metal coils must have been exposed to water for a longer period of time.

Furthermore, a clean 'on board' bill of lading was issued. The evidentiary value of a clean bill of lading solely pertains to the 'apparent order and condition' of the goods, but, depending on the nature of the goods, the nature of the packaging, and the nature of the damage, the apparent condition (of the packaging) may form a clue as to the inner condition. As the metal straps (used to keep the coils together) were corroded on arrival in Houston, and, as appeared later, the metal coils were also corroded, a clean bill of lading contributes to the evidence that the metal coils were in good condition when they were brought 'on board'.

Furthermore, it is not in dispute that it rained intermittently but significantly during the loading of the ship. It remains unclear, however, which precautions were taken to prevent the exposure of the metal coils to the rain. Neither the logbook nor the handwritten port log reflects this information.

Exceeding the period of three days of art 3.6 of the Hague-Visby Rules does not result in any loss of rights on the part of Macsteel, but merely results in the evidentiary presumption of compliant delivery, thus allowing Macsteel to provide evidence to the contrary. Macsteel succeeds in providing this evidence to the contrary as the metal coils were inspected by CISD Marine Surveyors & Consultants (CISD) immediately on arrival and photographs were taken. The photographs and observations made by CISD could have been made by Erasmusgracht itself, but it has not done so, which must remain for its account. Erasmusgracht could have done this investigation on arrival, and that would have been logical in view of the condensaton observed by the master during the stop-over at Port Chester. Incidentally, Erasmusgracht has not refuted the findings of CISD, nor has Erasmusgracht provided an alternative scenario for a cause of damage after discharge.

Under the Hague-Visby Rules, the carrier is liable for damages unless it can invoke one of the exonerations of art 4.2 of the Rules. This means that it is up to the carrier to assert the applicability of the exoneration and, if the assertion is disputed, to prove its applicability. Additionally, it is up to the carrier to assert the causal relationship between the exoneration and the damage and, if the assertion is disputed, to prove that causal relationship. The assertions of a latent defect and insufficiency of packaging are not properly substantiated. Finally, the art 4.2.q exoneration requires more than the sole assertion of the absence of the carrier’s intent or negligence. It is up to the carrier to assert and prove (any) 'other cause' which was beyond its control or the control of those for whom it is responsible.