The claimant purchased consignments of copper shipped from Dubai to Greece under sales contracts made between the claimant and the shipper, Alembery General Trd FZC. On arrival in Piraeus, Greece, the containers were found to have been stuffed with worthless concrete blocks. The shipper vanished. The defendant, Maersk A/S (Maersk), was the owner of the Maersk Klaipeda on which the containers were shipped. Maersk issued three clean bills of lading in respect of the cargo. The claimant contended that Maersk should not have done so, alleging that Maersk knew, or ought to have known, that the cargo actually stuffed in the containers weighed far less than the shippers had stated in their shipping instructions. Maersk ought either to have claused the bills of lading or not issued them at all. This was denied by Maersk.

Held: Judgment for the defendant.

Clause 5.1 of the bills provides that the 'liability of the Carrier for loss of or damage to the Goods occurring between the time of acceptance by the Carrier of custody of the Goods at the Port of Loading and the time of the carrier tendering the Goods for delivery at the Port of Discharge shall be determined in accordance with Articles 1-8 of the Hague Rules save as otherwise provided in these Terms and Conditions. These articles of the Hague Rules shall apply as a matter of contract'. Clause 14.2 of the bills provides that no 'representation is made by the Carrier as to the weight, contents, measure, quantity, quality, description, condition, marks, numbers or value of the Goods and the Carrier shall be under no responsibility whatsoever in respect of such description or particulars'. When these shipments were made in 2019, Maersk had no system in place comparing the weight data provided to it by shippers with the verified gross mass (VGM) data obtained from DP World. The weight of the cargo as stated in the shipper's instructions was used in the draft and issued bills of lading. The VGM data was used separately for the purposes of creating Maersk's stowage plan. Maersk’s understanding was that whatever weight the shipper declared in the shipping instructions would be included in the draft bill of lading. Maersk did not validate the data provided by the shipper.

This practice changed in 2020 as the result of an incident involving the collapse of a stack of containers on one of Maersk’s vessels, the Aotea Maersk. Maersk then introduced procedures to minimise VGM misdeclarations.

The claimant contends that Maersk should not have issued unclaused bills of lading where they knew, or ought to have known, that the cargo was not in good order and condition. Maersk submits that they did not owe a duty of care directly to a consignee and that, even if they did owe such a duty, they were not in breach of it. A statement in a bill of lading as to the apparent order and condition of the cargo refers to its external condition, as would be apparent on a reasonable examination. What amounts to a reasonable examination depends on the actual circumstances prevailing at the load port. The master's responsibility is to take reasonable steps to examine the cargo, but they are not required to disrupt normal loading procedures. What matters is what is reasonably apparent to the master or other servants of the carrier. The bill of lading contains a representation by the master and says nothing about what may be apparent to anyone else, such as the shipper, who may have other means of examining the cargo. The statement relates to the apparent order and condition of the cargo at the time of shipment, ie receipt by the carrier, and not at any earlier time. The statement is based upon the reasonable examination of the cargo which the master has (or should have) undertaken.

The claimant accepts that it is the right of the shipper, and the shipper alone, to demand a bill of lading that contains an art 3.3.c declaration in the first instance. The claimant submits, however, that once a demand for an art 3.3.c declaration has been made: (1) the carrier is obliged to include it; and (2) the carrier has a contractual duty to perform a reasonable check of the apparent order and condition of the goods prior to making the declaration, and to make an accurate declaration thereof.

In respect of the claimant's claim for negligent misstatement, where a consignee under a straight bill of lading can establish that the carrier knew, or ought to have known, when issuing the bill that there was a substantial discrepancy between the shipper declared weights and the VGM, it has a strong case that the carrier ought not to issue an unclaused bill, or ought not to have issued a bill at all. Such a discrepancy would give rise to an assumption on the part of the carrier that the proposed bill was being used as an instrument of fraud, and it would be fair, just, and reasonable to impose a duty of care upon the carrier, owed to the named consignee, to ensure that its bills are not used as an instrument of fraud, once they have been put on notice of that fraud. The claimant’s case, however, fails on the facts. There was no evidence that Maersk had any reason to consider in 2019 that the shippers would provide fraudulent data to them, and that they should therefore have checked the shippers’ weights against the VGM data. Maersk was not under a duty to compare the shipper-declared weights with the VGM-verified weights.