Yara Asia Pte Ltd (Yara) claimed compensation for loss/damage to fertiliser carried on the ship MV Cheshire from Herøya to Thailand in August 2017. The lawsuit was later filed by Yara Insurance DAC and If P&C Insurance Holding Ltd. The defendants are J Lauritzen Singapore Pte Ltd (Lauritzen) and Bibby Transport Ltd (Bibby). Bibby was the shipowner. Lauritzen was a contracting party with Yara, but chartered the ship from Bibby (via the companies Lauritzen Bulkers A/S who had chartered the ship from Pacific Gulf Shipping Co Pte Ltd). The defendants, together with a number of hull sub-insurers and Gard, filed a counterclaim against Yara with a claim for compensation related to loss/damage to the ship.

The damage occurred due to heat generation in the fertiliser, which then underwent a decomposition process. Smoke developed, toxic gases formed, and the ship was evacuated. Both the fertiliser and the ship were significantly damaged. The central theme of the dispute is the reason for the fertiliser decomposing. Yara has stated that the fertiliser had normal properties and was classified correctly, and that the decomposition did not start in the fertiliser itself, but that there must have been external reasons for the decomposition. Yara has pointed out that the damage may have been caused by a lamp being switched on, or that there have been other faults in the electrical system that gave rise to heat generation. Yara has referred to the Maritime Code § 275 (loosely based on art 4.2.q of the Hague-Visby Rules, but with a reversed burden of proof), which imposes on the carrier the burden of proof for the cause of damage, by proving that the cause is not due to fault on its part or someone for whom it is responsible.

Bibby submitted that no mistakes were made by it or anyone it is responsible for, and that there is therefore no basis for holding it responsible. Bibby has stated that the decomposition started in the fertiliser, even without external heat exposure for which the shipowner is to be held responsible. Bibby requested that it and the hull insurers' experts have access to their own samples of NPK fertiliser with a similar or comparable composition as the NPK fertiliser that was loaded on board MV Cheshire, more specifically stock samples of NPK fertiliser with the number combination 15-15-15 or nearest alternative fertiliser with 'blue coating'. Bibby has stated in the pleadings that experts must have full access to Yara's facility on Herøya to take samples of the fertiliser. In the latest pleadings, Bibby has requested that such fertiliser be handed over, and the necessary assistance provided in connection with export to the United Kingdom. Bibby's experts will then transport the samples to Edinburgh, where they will test the samples at the University.

Bibby and the hull insurers want to carry out different variants of trough tests, where the trough is placed in different angles/directions (not identical to the tests Yara has performed itself), as well as other tests that the experts recommend to analyse how the NPK fertiliser reacts and behaves in more closed surroundings, such as the cargo holds on board the ship. This is absolutely central to the case. Yara Asia has not documented the origin and handling of the fertiliser samples that it tested itself, and there is a need to take several variants of modified trough tests that show how the NPK fertiliser reacts in a closed environment. The trauma tests that have been taken have not been done in such an environment. It is important that the tests reflect the conditions in a cargo hold.

Yara Asia has requested that the Court not grant the petition. Yara has pointed out that there are international regulations related to classification, testing and safety measures for shipping NPK products by ship. The current rules are contained in the International Maritime Solid Bulk Cargoes Code (the IMSBC Code). These are based on an official test system and the classification depends on how the fertiliser actually performs in the official test. The tests Bibby wishes to take deviate from the tests prescribed by the current international regulations for the transport of this type of cargo. Neither the NPK product nor further tests will be relevant. Bibby has requested a significant load volume without any explanation being given as to what the load will be used for. It usually takes about 15 kg to complete a trauma test. No explanation has been given as to what the remaining quantity is to be used for and how it is intended to be evidence in the case. Yara Asia has submitted documentation on a number of tests of the cargo in accordance with the IMSBC code, carried out at the institutes BAM in February 2019 and SINTEF-Molab in December 2018. There is no evidence that the fertiliser in question was classified incorrectly or that it were other flaws in its properties. All tests were according to the specification. Yara states that Bibby has not proved that the request for evidence is suitable to potentially add anything to the case. Bibby has not explained why further testing is relevant. Nor does it say which tests its expert believes should be carried out nor why it considers it relevant to perform such tests on goods produced today, two years after the incident.

Held: 1) Yara is required to submit a complete overview of the current production and stock of NPK fertiliser at Yara International ASA's facility on Herøya so that Bibby, Gard, and the hull insurers can designate relevant consignments of NPK fertiliser to be sampled;

2) Yara is required to provide access to 2 tonnes of NPK fertiliser with a number combination of 15-15-15 or the nearest alternative from Yara International ASA's plant at Herøya;

3) The samples are to be taken and/or the consignments are to be made available in collaboration with and in the presence of the experts of Bibby, Gard and the hull insurers, and must then be handed over to these experts, who will arrange further transport of the NPK fertiliser to carry out desired tests; and

4) Yara shall provide reasonable assistance in obtaining an export permit to the extent necessary.

Section 275 of the Maritime Code places on the carrier the burden of proof that the cargo damage is not due to fault or negligence on the part of the carrier itself or someone for whom it is responsible. So it is Bibby who has the burden of proof for the cause of the damage. Based on Bibby's allegation that the fertiliser did not have the stated properties, the Court sees it as natural that Bibby is given access to comparable fertiliser to undertake its own investigations. The Court thus considers that it may be relevant as evidence in the case and accepts the request for access to evidence.

Bibby has demanded that Bibby, Gard and the hull insurers can designate relevant consignments on Herøya. This has not been countered and the Court assumes that there are no objections to this. The Court also considers that it is sufficiently justified that two tonnes must be handed over, but notes that this must be covered in terms of cost by Bibby. Bibby has also requested that Yara shall provide assistance in obtaining an export permit to the extent necessary. The Court assumes that this can be complied with without difficulty.