This case arose from Osee's shipment with ZIM of a container of consumer goods from Ningbo, China, to Port-au-Prince, Haiti. The cargo departed on 5 January 2024 and arrived on 22 February. As the security situation in Haiti deteriorated, the terminal at Port-au-Prince was repeatedly attacked by armed gangs. On 30 March 2024, armed individuals broke into the terminal where container was stored, and the cargo was subsequently found to have been looted. Osee claimed RMB 757,133.70 in damages, alleging that ZIM had failed properly to care for and safeguard the cargo. ZIM denied liability, relying on the exemptions in art 51 of the PRC Maritime Code and also challenging Osee's standing to sue.

Held: Osee's claim is dismissed.

The Ningbo Maritime Court held that Osee had standing to sue. Although Ouyu had handled the booking, customs declaration and other shipping formalities, it had acted on Osee's behalf. Osee owned the goods, paid the freight, held the full set of original bills of lading, and was named as shipper. The contract of carriage was therefore between Osee and ZIM.

The Court then considered whether ZIM could rely on the war or armed conflict exemption in art 51.1.4 of the Maritime Code, which addresses substantially the same subject matter as arts 4.2.e of the Hague Rules and Hague-Visby Rules concerning loss or damage arising from an act of war. As the Maritime Code does not define 'armed conflict', the Court referred to the Geneva Conventions and Additional Protocol II. It held that the violence in Haiti was neither an international armed conflict between States, nor a non-international armed conflict of the intensity and organisation contemplated by Additional Protocol II. Although gang violence had caused serious unrest, it did not meet the legal threshold for an armed conflict. ZIM could therefore not rely on art 51.1.4 of the Maritime Code.

The Court next considered the residual exemption in art 51.1.12 of the Maritime Code. It applies where loss or damage results from another cause arising without the fault of the carrier, its servants or agents, with the carrier bearing the burden of proving the absence of fault. This closely corresponds to arts 4.2.q of the Hague Rules and Hague-Visby Rules, which apply to any other cause arising without the actual fault or privity of the carrier, or without the fault or neglect of the agents or servants of the carrier.

As to due diligence, art 47 of the Maritime Code corresponds to arts 3.1 of the Hague Rules and Hague-Visby Rules, which require the carrier to exercise due diligence before and at the beginning of the voyage. The Court held that this obligation, including reasonable foresight in voyage planning, is confined to that stage. As the robbery occurred only after the cargo had reached the destination port, it did not establish a breach of due diligence obligation.

The Court also noted that the deteriorating security situation in Haiti was equally apparent to Osee. As an international trading company, Osee could reasonably be expected to appreciate the risks of shipping goods to Haiti, yet it did not request cancellation, diversion, or return of the cargo. ZIM, as a liner carrier carrying cargo for numerous other shippers, could not reasonably be expected to alter the scheduled voyage solely for Osee's container. ZIM could therefore not be found at fault merely because it did not divert or return the cargo.

As to cargo care, art 48 of the Maritime Code requires the carrier properly and carefully to load, handle, stow, carry, keep, care for and discharge the goods, corresponding to arts 3.2 of the Hague Rules and Hague-Visby Rules. The Court held that ZIM had issued an arrival notice before the cargo reached Port-au-Prince and had successfully discharged it at the destination terminal. In the circumstances, this satisfied its ordinary cargo-care obligations. The subsequent armed attack on the terminal and looting of the container did not establish fault on ZIM's part.

Accordingly, although ZIM could not rely on the war or armed conflict exemption in art 51.1.4 of the Maritime Code, it proved that the loss resulted from gang robbery and that neither it nor its servants or agents was at fault. It was therefore entitled to the residual exemption under art 51.1.12 of the Code, and Osee's claim was dismissed.