AP MØLLER-MAERSK A/S, TRADING AS MAERSK LINE V KYOKUYO LTD

[2018] EWCA Civ 778, Court of Appeal, Lady Justice Gloster and Lord Justice Flaux, 17 April 2018

Carriage of goods - Sea waybills issued instead of bills of lading - Whether contract covered by a bill of lading - Container carriage - Package limitation - Hague Rules - Hague-Visby Rules - Carriage of Goods by Sea Act 1971

The respondent claimed as the receiver of three container loads of frozen tuna shipped at Cartagena in Spain for carriage by the appellant to Japan. Container A contained bags of frozen Bluefin tuna parts and containers B and C frozen tuna loins. The loins in container C had been restuffed into another container following a refrigeration malfunction. The judge at first instance had held against the carrier on the issue of package limitation determined by the number of containers. This was the appeal of the carrier. Sea waybills had been issued in respect of the carriage, but it was common ground that the receiver was entitled to request bills of lading. The questions upon appeal concerned the right to limit liability, and if such a right existed whether under the Hague and Hague-Visby Rules respectively the limitation was as per the containers or the pieces of tuna inside the container.

The court held as follows, dismissing the appeal.

(1) The Hague-Visby Rules applied compulsorily and had the force of law. Until the moment the sea waybills were issued, the cargo interests were entitled to a bill of lading on demand, satisfying the requirements of article I(b) and section 1(4) of COGSA 1971.

(2) The judge had been correct in holding that the enumeration of the tuna loins in the sea waybill was sufficient to make them the "units" for the purpose of package limitation under the Hague-Visby Rules; El Greco (Australia) Pty Ltd v Mediterranean Shipping Co SA [2004] 2 LloydÂ’s Rep 537, not followed. There was no need for specification of how the packages and units had been packed in the container.

(3) Obiter, on package limitation under the Hague Rules, it would be artificial to base the inquiry into whether something was capable of being a "unit" on consideration of whether the cargo could have been loaded, without further packaging or consolidation, in the refrigerated hold of a break-bulk vessel.