Timberwest Forest Ltd (the plaintiff) consigned a cargo of green heat-treated Douglas fir lumber for carriage by sea. The cargo was loaded on the Rhone, which was bareboat chartered by Gearbulk Pool Ltd (the defendant). The Rhone also carried a cargo of soda ash. The plaintiff's lumber became dusted with soda ash. The plaintiff brought an action against the defendant for damages for breach of contract, breach of duty as bailee and common carrier for hire, and negligence. The bill of lading provided that 'Under no circumstances will any enactments or legislation apply to live animals or cargo carried on deck'. In addition, the bill of lading contained a notation that 'stowage: 86% on deck, 14% under deck'.

The trial Judge found that the lack of clarity in the bill of lading amounted to the absence of a declaration that the cargo was carried on deck, and that the exclusion clause in the bill of lading was not valid or enforceable (see CMI1017). The defendant appealed.

Held: Appeal dismissed.

Under the Hague-Visby Rules, it must first be determined whether the cargo shipped was included in the definition of 'goods'. If the lumber was 'goods', as found by the trial Judge, the exclusion clause in the bill of lading, relied on by the defendant to avoid liability, was void. If the lumber was not 'goods', the parties agreed that the exclusion clause applied and the defendant was not liable.

In this case, the notation on the bill of lading that 86% of the cargo was carried on deck and 14% was carried below deck was unreliable with respect to each shipment. The specific packages carried on deck and under deck were not identified. It was therefore impossible to determine the value of the cargo on deck even if the quantities could be determined. Therefore, the trial Judge's construction of the definition of 'goods' accorded with practical affairs and business efficacy, on the ground that certainty was necessary for the parties to commercial transactions to assess their respective risks and determine the appropriate price for their goods and services.