This case involved cargo claims arising out of a fire. The Court of Appeal gave an interim judgment on 16 November 2000, in which it held that the appeal of the cargo owners and insurers against the judgment of 5 December 1995 of the third Chamber of the Commercial Court in Ghent was well-founded. The Court of Appeal established that the first Court was right to declare the claim of the appellants against Spliethoff's Bevrachtingskantoor BV inadmissible, as it was not the owner of the ship and had not acted as a carrier. It held that CV Scheepvaartonderneming 'Looiersgracht', the defendant carrier/shipowner, had demonstrated a lack of proper care with regard to the equipment of the ship and making the ship suitable for the safe transport of the goods (bulk maize). It also concluded that the defendant could not rely on the fire exception, given the lack of proper care with regard to making the ship seaworthy. It ordered the defendant to pay BEF 1 provisional damages to Cargill NV and officially reopened the debates in order to allow the parties to make further decisions about the assessment of the damage and about the limitation of the maritime carrier's liability.

The first dispute concerns a shortage of 19,237 kg, which according to Cargill NV represents a value of BEF 218,609. The notes on the bill of lading show that on 2 July 1985 maize was loaded in bulk on board the ship Looiersgracht in Bayonne for a declared weight of 4,242,500 kg ('IN BULK SAID TO WEIGH 4 242 500 kg') and on 9 July 1985 at Euro Silo Ghent, 4,223,263 kg of maize (healthy and damaged) was received. The difference amounts to 19,237 kg, which is equal to 0.453% on the declared weight of 4,242,500 kg. The defendant argues that it is not liable for this shortfall. It relies on the bill of lading clause 'in bulk said to weigh', which would justify a tolerance of 0.5% with regard to bulk goods.

The second dispute concerns a quantity of 600 tons of maize, which the judicial expert found to be free from odour damage, but which Cargill NV also had sold as damaged goods. Cargill NV also claims for these 600 tons of maize the difference between the realised sales price and the value/sales price of undamaged maize.

The third dispute concerns the value/selling price of the undamaged maize.

The fourth dispute concerns the settlement - as part of the damage - of a sales commission of 3% on the sale price of the damaged cargo, which the landing expert charged for carrying out the emergency sale. The defendant argues that this cost is not related to the actual cost of organising the sale of the damaged goods; the sales commission should at least not be charged for the sale of the 600 tons of odour-free corn.

The fifth dispute concerns the claim of Cargill NV for BEF 2,254,209 in extra costs eg for the overtime worked by Euro Silo, and the fees charged by Antwerpia Natie for the loading and unloading of the lighter Kroonland, which was used to cool and aerate the cargo.

Finally, the question of the possible limitation of liability as a maritime carrier as set out in the LLMC 1957 arises. The defendant invokes the application of arts 1.1.a and 3.1.a of this Convention and asserts that it is only liable for 202,490.79 Special Drawing Rights (SDRs) as defined by the International Monetary Fund based on the vessel's tonnage. Cargill NV argues that the determination in the interim judgment of a lack of proper care on the part of the defendant carrier with regard to the equipment of the ship and the making of the ship suitable for the safe transport of the goods prevents it from invoking the limitation of the liability of owners of seagoing vessels, as provided for in the LLMC 1957 (which was in force until 1 October 1990).

Held: The defendant is ordered to pay Cargill NV the sum of EUR 316,548.87 plus interest.

The carrier is responsible under arts 91, A § 3 - 3 b and 91, A § 3 - 4 for the shortfall, which the Court determines as a difference of 18,737 kg. The 'said to weigh' clause only has legal effect if it is not a standard formula and the carrier provides proof that it could reasonably suspect that the stated weight was incorrect or that it did not have a reasonable opportunity at loading to determine the weight of the goods. The bill of lading states here - whether it concerns bulk goods or goods in packages that the carrier takes on board - as a general clause 'said to weigh'. It is therefore a a standard formula and the carrier does not prove that it could reasonably suspect that the declared weight was incorrect or that it did not have a reasonable opportunity at loading to verify the weight of the goods. The maize was loaded directly from the storage warehouse with elevators into the ship under the control of SGS France SA, which certified as control body the loading of 4,242,000 kg net.

Cargill NV is wrong to claim compensation for the 600 kg of maize, which it had sold as damaged goods, albeit free of odour damage. The judicial expert determined that this maize was free from odour damage. Cargill NV does not refute this statement.

The Court of Appeal holds that the basis for compensation should be the usual Ghent CIF value of French maize (BEF 11,295/MT). The invoice drawn up by Cargill NV on 11 July 1985 for Maizena GmbH does not in itself provide conclusive proof of the value of the French maize when it landed in Ghent on 7-11 July 1985. The value of the goods is determined in accordance with Article 91, A § 4 - 5 b of the Maritime Code according to a stock exchange quotation or, in the absence thereof, according to the market price or, in the absence of both, according to the usual value of the goods of the same nature and quality. The parties do not dispute that no stock exchange quotation or market price is available for French maize. For the determination of the usual value of goods of the same nature and quality, the parties submitted a statement from the work Marché des Céréales of August-September 1985, that has an overview of the maize price from 7 August 1984-30 July 1985. The price of maize delivered to Bayonne in July 1985 was FRF 1,506.52/tonne, according to these data. For the determination of the CIF value in Ghent, the Court therefore starts from this value, which it increases with shipping costs to Ghent.

The accident demanded that a buyer be sought who was willing to buy the corn that was the object of the damage. The sales commission charged by the expert for this is part of the damage suffered by Cargill NV. A commission of 3% on the achieved sales price for the damaged goods is not exaggerated.

With regard to the further damage assessment, the Court finds that Euro Silo charged extra unloading costs for the completion of the seagoing vessel Looiersgracht and demurrage. This claim is clearly related to the claim and is well-founded. Antwerpia Natie charged for the loading and unloading of the lighter Kroonland. These are intermediate operations (transhipment), where the lighter Kroonland was used to obtain maximum aeration of the burnt cargo. This requirement is therefore well-founded.

The defendant carrier wrongly invokes limitation of liability as a maritime carrier, as set out in LLMC 1957. The legislation in force at the time of the claim governs the limitation of liability. In July 1985, the LLMC 1957 came into force in Belgium. Under the Convention, limitation of liability is not excluded for presumed liability, which, in accordance with art 1384, 1 of the Civil Code, rests with the shipowner - as custodian of the property - (see art 2 of the Convention), but for damage attributable to the shipowner's 'personal error' (see art 1 of the Convention).

This is in contrast to art 4 of the LLMC Convention 1976 (which was introduced into Belgian maritime law by the Law of 11 April 1989 - see art 46 and article 91. A. § ​​IV, 5 e of the Maritime Code), which excludes the limitation of liability only when the damage is due to a personal act or omission of the liable person, committed either intentionally to cause the damage or recklessly and with the awareness that damage would likely occur.

The interim judgment of 16 November 2000 found that the defendant carrier/shipowner had committed a personal error, which it described as a lack of due care with regard to the equipment of the ship and making the ship suitable for the safe transport of the bulk maize.