“The phrase ‘shall properly and carefully load’ may mean that the carrier shall load and that he shall do it properly and carefully: or that he shall do whatever loading he does properly and carefully. The former interpretation perhaps fits the language more closely, but the latter may be more consistent with the object of the rules. Their object as it is put, I think, correctly in Carver's Carriage of Goods by Sea, 9th ed (1952), p 186, is to define not the scope of the contract service but the terms on which that service is to be performed. The extent to which the carrier has to undertake the loading of the vessel may depend not only upon different systems of law but upon the custom and practice of the port and the nature of the cargo. It is difficult to believe that the Rules were intended to impose a universal rigidity in this respect, or to deny freedom of contract to the carrier. The carrier is practically bound to play some part in the loading and discharging, so that both operations are naturally included in those covered by the contract of carriage. But I see no reason why the Rules should not leave the parties free to determine by their own contract the part which each has to play. On this view the whole contract of carriage is subject to the rules, but the extent to which loading and discharging are brought within the carrier's obligations is left to the parties themselves to decide.”
“Only the most enthusiastic lawyer could watch with satisfaction the spectacle of liabilities shifting uneasily as the cargo sways at the end of a derrick across a notional perpendicular projecting from the ship's rail.”
“Any deviation in saving or attempting to save life or property at sea, or any reasonable deviation shall not be deemed to be an infringement of breach of these Rules and the carrier shall not be liable for loss or damage resulting therefrom”
“the obligation [viz to proceed with reasonable dispatch] is not reflected or encapsulated in the Rules”
“I think the words "in any event" mean what they say. They are unlimited in scope and I can see no reason for giving them anything other than their natural meaning. A limitation of liability is different in character from an exception. The words "in any event" do not appear in any of the other art. IV exemptions including r. 6 and as a matter of construction I do not think they were intended to refer only to those events which give rise to the art. IV exemptions.”
“Once the problem is treated purely as a question of construction the words "in any event" become very important. Their most natural meaning to my mind is "in every case" (whether or not the breach of contract is particularly serious; whether or not the cargo was stowed under deck). The French wording "en aucun cas" would, I think, support that view. Mr. Justice Hirst inThe Chandamade no reference to these words at all which is surprising since he purported to treat the question before him as a pure question of construction. On any view they are highly relevant words. Mr. Hamblen submitted that the phrase was, as he put it, "conjunctive and neutral" and meant no more than "notwithstanding the foregoing". Since the rule foregoing art. IV, r. 5 is art. IV, r. 4 disapplying the strict common law rule about deviation it does not seem to me that Mr. Hamblen’s construction particularly advanced the argument.”
“It is not suggested, nor could it be, that art. IV, r. 5, or any part of it, was somehow excluded from the contract. I respectfully disagree with Mr. Justice Hirst that, as the limitation clause was "repugnant to and inconsistent with the obligation to stow below deck", it was "inapplicable". The authorities on which he relied did not justify this conclusion. The limitation clause took effect "in any event". This phrase appears on three relevant occasions, once in connection with the clause creating the time bar, and twice in the limitation clause with which we are concerned. It was suggested that the words should be read to mean, "Notwithstanding the foregoing." I doubt whether this meaning greatly improves the shippers’ position, but whether it does or not, "in any event" are simple words, to be read in the context in which they appear, and it would be unwise to attempt to translate these three words into three, or fewer, or more different words. As Lord Justice Tuckey pointed out in The Happy Ranger, [2002] 2 Lloyd’s Rep. 357: “. . . I think the words "in any event" mean what they say. They are unlimited in scope and I can see no reason for giving them anything other than their natural meaning.”” “. . . I think the words "in any event" mean what they say. They are unlimited in scope and I can see no reason for giving them anything other than their natural meaning.””
“This issue arises on the assumption that the parties have agreed that the HVR regime is to apply as between shipowner and cargo owner after the discharge of the goods from the ocean carrying vessel, but whilst the goods remain in the custody of the shipowner ashore. On that assumption, Article IV(5) must apply to the potential liability of the shipowner ‘in any event … for any loss or damage to or in connection with the goods …’. The same interpretation of the words ‘.in any event’ must be given to them whether they appear in the HR, as in The Kapitan Petko Voivoda, or the HVR, as in The Happy Ranger. The words ‘mean what they say’, as Tuckey LJ put it in the latter case; that is, they mean ‘in every case’ as Longmore LJ stated in the former case. So the shipowner is entitled to limit his liability ‘in every case’ ‘for any loss or damage to or in connection with the goods’. Lord Morton of Henryton pointed out in Renton & Co Ltd v Palmyra Trading Corp,that the phrase ‘loss or damage to or in connection with goods’ as used in Article III(8) of the HR (and the HVR), covers four different situations: loss of goods, damage to goods, loss in connection with goods and damage in connection with goods. That gives the phrase a very broad scope. In Article IV(5) of the HVR the wording is, if anything, even wider. It refers to ‘any’ loss or damage etc., and it refers to ‘the goods’ which must mean the goods the subject of the contract of carriage. In my view, therefore, if the HVR applied to the period after discharge, then the shipowners' duty under Article III(2) to ‘keep and care for’ the goods, must have extended throughout that period. By failing to do so, but giving up the goods to someone who was not entitled to take them, the shipowner breached that duty. Such ‘misdelivery’ is a very serious breach of duty, about as serious as there could be. But it must fall within the phrase ‘in any event’ in Article IV(5), if that phrase means ‘in every case’ . And the shipowner's liability must be limited if his liability for misdelivery is one for ‘loss or damage … in connection with the goods’. To my mind a shipowner's liability to the cargo owner, whether in contract or conversion, for loss suffered by the latter as a result of misdelivery of the cargo by the shipowner, is obviously a liability for ‘loss … in connection with the goods’. Therefore, if the parties had agreed that the HVR regime continued after discharge of the goods from the ship, I would have held that the shipowner could have relied on Article IV(5) of the HVR to limit liability. It is agreed that the limit of liability is 720,816 SDRs. The same words appear in the relevant part of Article IV(5) of the HR, although much of the remainder of that Article was radically altered in the later Convention. But it must follow that if I had concluded that the HR governed the contract of carriage and that they had governed the period after discharge, then the shipowner would have been able to limit liability under Article IV(5) of the HR”
“There were a number of objectives which art. III, r. 6 sought to achieve; first, to speed up the settlement of claims and to provide carriers with some protection against stale and therefore unverifiable claims; second, to achieve international uniformity in relation to prescription periods; third, to prevent carriers from relying on “notice-of-claim” provisions as an absolute bar to proceedings or from inserting clauses in their bills of lading requiring proceedings to be issued within short periods of less than one year; see also Tetley, Marine Cargo Claims 3rd ed. (1988) p. 671 note 1. After 1924 the only effect of the carefully negotiated and complex “notice-of-claim” provision would concern the burden of proof. The “time-for-suit” provision would replace and standardize the clauses previously contained in carriers’ bills of lading”
“The last question asks whether the words ‘loss or damage’ in section 4(1) and (2) of the Act relate only to physical loss of or damage to goods. The words themselves are not qualified or limited by anything in the section. The act is dealing with responsibilities and liabilities under contracts of carriage of goods by sea, and clearly such contractual liabilities are not limited to physical damage. A carrier may be liable for loss caused to the shipper by delay or misdelivery, even though the goods themselves are intact. I can see no reason why the general words ‘loss or damage’ should be limited to physical loss or damage. The only limitation which is, I think, to be put upon them is to be derived from section 2 which is headed: “Risks”
“One then comes to r.6. ‘Discharged from all liability” must mean ‘discharged from all liability under the rules’. “Unless suit is brought” must therefore mean “unless suit to establish liability under the rules is brought”. “In respect of loss or damage” must mean “in respect of loss or damage to goods carried under a contract of carriage by sea”.”
“The Hague Rules represent a negotiated bargain between shipowners whose interest lies in maximum immunity and cargo owners whose interest lies in maximum redress. The plain intention of art. III, r. 6 is to achieve finality and to enable the shipowner to clear his books - see generally per Lord Justice Bingham in The Captain Gregos, [1990] 1 Lloyd’s Rep. 310. I have no doubt that, where it is possible so to do, and where there is no consequent uncertainty as to when the one year period would expire, the Court should lean towards a conclusion which involves that a claim against a carrier which is founded upon a breach of a Hague Rules obligation is subject to the one year time bar contained in that code rather than that it is not.”
“The recommendation of the bill of lading sub-committee was that art. III, r. 6 should be altered for this purpose and no other. (There is no evidence that they had in mind the position relating to deviations). They recommended a special two-year limit in the form of a proviso to art. III, r. 6 to read “provided that in the event of delivery of the goods to a person not entitled to them the above period of one year shall be extended to two years from the date of the Bill of Lading.”
“The object of the aforesaid amendment is to give the text a bearing as wide as possible, so as to embody within the scope of application of the one year period, even the claims grounded on the delivery of the goods to a person not entitled to them, i.e. even in the case of what we call a wrong delivery.”
“Presumably the reason is that the parties to the Convention intended the limit to apply even in case of deviations. If this is correct, the monetary limit will be opened by ‘wilful misconduct’ and possibly also by deviation as well, whereas the time limit will not”
“The only important questionarising on the Visby amendments relating to the time-bar is whether the substitution of the words “discharged from all liability whatsoever in respect of the goods” for the former expression “discharged from all liability in respect of loss or damage” has the effect of making the one-year time-bar applicable where the carrier has misdelivered the goods. There is the clearest possible evidence that the sole or main purpose of this amendment was to make the time limit apply where the goods had been delivered without production of bills of lading and so to make it unnecessary to require an indemnity given by the receiver to be kept open indefinitely.Although the editors of Scrutton knew that this was one of the intentions, they considered that the amendment did not have the desired effect.I submit, albeit with considerable doubt, that as the first paragraph of art. III, r. 6 is dealing with the effect of delivery of the goods, so also the time-bar should be construed as applying to events taking place after discharge. If so, I submit, again with doubt, that the limit should apply.”
“In the present case the contract expressly provided for the jurisdiction of the Courts here, unless and until either party exercised a valid election for arbitration. When the writs were issued, neither party had done so. The proceedings, or "suits" when brought were therefore the very suits provided for by the contract. To the question: Was "suit" brought within the year? the answer must inevitably be "Yes". If thereafter the proceedings, as a result of election, have to be restarted in arbitration, the answer to the question remains the same. The very suits contemplated were so brought. The situation is different from the case of a simple arbitration clause. There the suit contemplated is at all times arbitration. As with r. 8, r. 6 must be given a purposive construction. It cannot, in my view, be within the purpose so to construe it as to enable a defendant to set up a time bar when the plaintiff has commenced the very suit which the parties had agreed upon, and the shift to arbitration results from the defendants’ own contractual election.”