In Captain v. Far Eastern S. S. Co.1 the plaintiff contracted for the carriage of household effects from Madras, India, to Vancouver, British Columbia, under a contract which purported to confine the carrier’s responsibility to the part of the transport performed by him on board vessels under his management and to exclude liability for loss or damage during the period before loading and after discharge from the vessel. The goods were carried on board a vessel of the defendants to Singapore then discharged and stored for 38 days before loading on to another of their vessels for on carriage to Vancouver. The goods arrived damaged by water, the damage presumably having occurred at Singapore. The British Columbia Supreme Court held the Hague Rules to be incorporated into the contract but inapplicable to the part of the contract relating to the holding of the goods at Singapore because it did not relate to “the carriage of goods by water” within the Carriage of Goods by Water Act 1970, the Canadian equivalent of the United Kingdom Carriage of Goods by Sea Act 1924. Prima facie, therefore, the defendants’ liability was governed not by the Rules but by the contractual exemption clauses. The benefit of these was, however, excluded by their fundamental breach of contract in failing to protect the goods from the elements at Singapore, an obligation derived by extension from the oral term that the goods were during carriage to be shipped below deck.

A similar situation arose in England recently in Mayhew Foods Ltd. v. Overseas Containers Ltd.2 The defendants contracted to carry the plaintiffs’ chicken and turkey pieces in a refrigerated container from Uckfield, Sussex, to Jeddah, Saudi Arabia. Clause 7 of the contract limited liability to an amount lower than that applicable under the Hague-Visby Rules, though another clause subjected cl. 7 to the Rules, which by Art. III, r. 8 themselves prohibit the lessening of liability under the Rules. The goods were collected from the plaintiffs’ premises, stuffed into a container and taken to Shoreham, whence they were carried to and discharged at Le Havre. Five or six days later, they were loaded on board another vessel for carriage to Jeddah. They arrived damaged, the temperature control having been set at plus two to plus four degrees rather than the contract level of minus 18 degrees.

The bill of lading, issued after arrival at Le Havre, provided that the carrier might use any means of transport or storage, transfer the goods from one conveyance to another, and load or unload at any port, all liberties to be exercisable for any purpose whatsoever and any delay arising therefrom deemed to be within the contractual carriage.

Bingham, J., held that the carriers’ liability was governed by the Hague-Visby Rules. The bill of lading did not relate to shipment on the second vessel alone. It evidenced the earlier contract for carriage from Uckfield to Jeddah; the rights and liabilities under the Rules (as Devlin, J., said in Pyrene Co. Ltd. v. Scindia Navigation Co.3) attached to