“Article III 1. The carrier shall be bound before and at the beginning of the voyage to exercise due diligence to: (a) Make the ship seaworthy; (b) Properly man, equip and supply the ship; (c) Make the holds, refrigerating and cool chambers, and all other parts of the ship in which goods are carried, fit and safe for their reception, carriage and preservation. 2. Subject to the provisions of Article IV, the carrier shall properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried. … Article IV 1. Neither the carrier nor the ship shall be liable for loss or damage arising or resulting from unseaworthiness unless caused by want of due diligence on the part of the carrier to make the ship seaworthy, and to secure that the ship is properly manned, equipped and supplied, and to make the holds, refrigerating and cool chambers and all other parts of the ship in which goods are carried fit and safe for their reception, carriage and preservation in accordance with the provisions of paragraph 1 of Article III. Whenever loss or damage has resulted from unseaworthiness the burden of proving the exercise of due diligence shall be on the carrier or other person claiming exemption under this article. 2. Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from: (a) Act, neglect, or default of the master, mariner, pilot, or the servants of the carrier in the navigation or in the management of the ship. (b) Fire, unless caused by the actual fault or privity of the carrier. (c) Perils, dangers and accidents of the sea or other navigable waters. (d) Act of God. (e) Act of war. (f) Act of public enemies. (g) Arrest or restraint of princes, rulers or people, or seizure under legal process. (h) Quarantine restrictions. (i) Act or omission of the shipper or owner of the goods, his agent or representative. (j) Strikes or lockouts or stoppage or restraint of labour from whatever cause, whether partial or general. (k) Riots and civil commotions. (l) Saving or attempting to save life or property at sea. (m) Wastage in bulk of weight or any other loss or damage arising from inherent defect, quality or vice of the goods. (n) Insufficiency of packing. (o) Insufficiency or inadequacy of marks. (p) Latent defects not discoverable by due diligence. (q) 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, but the burden of proof shall be on the person claiming the benefit of this exception to show that neither the actual fault or privity of the carrier nor the fault or neglect of the agents or servants of the carrier contributed to the loss or damage. 3. The shipper shall not be responsible for loss or damage sustained by the carrier or the ship arising or resulting from any cause without the act, fault or neglect of the shipper, his agents or his servants. 4. 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 or breach of these Rules or of the contract of carriage, and the carrier shall not be liable for any loss or damage resulting therefrom. …”
“Hygroscopic products have a natural moisture content and are mainly of plant origin. They may retain, absorb or release water vapour, and excessive amounts of inherent moisture may lead to significant self-heating and “moisture migration” within the cargo resulting in caking, mildew or rot. Examples of hygroscopic products include grain, rice, flour, sugar, cotton, tobacco, cocoa, coffee and tea.”
“… given the above observations, the cargo appears to have been in a sound condition. This is supported by no remarks on the mate’s receipts or bills of lading.”
“There was extensive damage to the peripheral areas of all cargo piles, including wetting and caking across the top surface, in way of the full height of the cargo holds and in way of the transverse bulkheads. The affected cargo had spoiled and was described as very warm or hot. There were significant populations of adult insect grain pests.”
“Our inspection revealed that all holds had in fact been affected (including hold 3). Germination/growth was observed in straight lines and also circular patterns on the surface of the stow and the growth pattern was observed to correspond with the welds/joints/framework on the underside of the hatch covers, indicative of condensation collecting at these points on the underside of the hatch covers and dripping onto the cargo.”
“The delivery of the goods in a damaged state is evidence of a breach of art. III and imposes an evidentiary burden on the carrier to show that no breach of art. III has occurred. But unlike the common law, failure to deliver the goods in the state received does not cast a legal onus on the carrier to prove that the state of, or nondelivery of the goods, was not due to the carrier's fault.”
“Article 143: Shipowner’s Duty to Proceed without Deviation and with Reasonable Despatch 12-011 In the absence of express stipulations to the contrary, the owner of a vessel, whether a liner or general ship or a ship chartered for a particular voyage or under a time charter, impliedly undertakes to proceed in that ship by a usual and reasonable route without unjustifiable departure from that route and with reasonable despatch. Prima facie the route is the direct geographical route; but evidence is admissible to prove what route is a usual and reasonable route for the particular ship at the material time, provided that it does not involve any inconsistency with the express words of the contract. A route may be a usual and reasonable route though followed only by ships of a particular line and though recently adopted. … 12-012 Departure from the route so ascertained is justifiable if necessary to save life or to communicate with a ship in distress as the distress may involve danger to life, or if it is involuntary, e.g. as the result of necessity; but in the absence of express stipulations to the contrary it is not justifiable, except in cases to which the Carriage of Goods bySea Act 1971 , applies, if only necessary to save property of others. … 12-013 Unjustifiable departure from the contract route unless involuntary (e.g. resulting from error of judgment as to route) constitutes a deviation. Delay in performing the contract voyage may also constitute a deviation, just as delay in carrying out the insured voyage may constitute a deviation under an insurance policy.”
“The vessel was, in the absence of agreement to the contrary, under a duty to proceed to Lisbon by a usual and reasonable route, which prima facie was the direct geographical route (see Scrutton on Charterparties, 17th ed. (1964) at p.259)” ii)Reardon Smith Line Ltd v. Black Sea & Baltic General Insurance Co Ltd [1939] 64 Lloyd’s Rep. 229: “The evidence, however, to prove a commercial usage is in any event not the same as that necessary to prove a custom, say, in matters of land law. And as appears from the authorities I have quoted, the question here is simply what is a usual and reasonable mode of performing the necessary operation of calling for bunkers.” (Lord Wright, p.239 lhc) “… I think a commercial habit or practice like the one claimed may come into existence in a short time and cease as rapidly. In modern business, things are constantly changing, and commercial habits may change as rapidly. Nor am I impressed by the contention that what was originally a breach of contract cannot by repetition become a usual and reasonable course.” (Lord Wright, p.238 lhc) iii)The Al Taha [1990] 2 Lloyd’s Rep. 117, 124rhc-125lhc: “Under a contract of carriage for a single voyage the vessel is obliged to proceed - . . . by a usual and reasonable route without unjustifiable departure from that route and without unreasonable delay . . . [Scrutton on Charterparties 19th Ed. at p. 259]. A route can be usual and reasonable notwithstanding that it involves departure from the shortest geographical route in order to bunker.”
“The law upon the matter is, I think, reasonably plain, though its application may from time to time give rise to difficulties. It is the duty of a ship, at any rate when sailing upon an ocean voyage from one port to another, to take the usual route between those two ports. If no evidence be given, that route is presumed to be the direct geographical route, but it may be modified in many cases for navigational or other reasons, and evidence may always be given to show what the usual route is unless a specific route be prescribed by the charter-party or bill of lading. In each case, therefore, when a ship is chartered to sail, or when a parcel is shipped upon a liner sailing from one port to another, it is necessary to inquire what the usual route is.”
“In some cases there may be more than one usual route. It would be difficult to say that a ship sailing from New Zealand to [England] had deviated from her course whether she sailed by the Suez Canal, the Panama Canal, round the Cape of Good Hope or through the Straits of Magellan. Each would, I think, be a usual route. Similarly the exigencies of bunkering may require the vessel to depart from the direct route, or at any rate compel her to touch at ports at which, if she were proceeding under sail, it would be necessary for her to call. It is not the geographical route but the usual route which has to be followed, though in many cases the one may be the same as the other. But the inquiry must always be, “What is the usual route?” and a route may become a usual route in the case of a particular line though that line is accustomed to follow a course which is not that adopted by the vessels belonging to other lines or to other individuals. It is sufficient if there is a well-known practice of that line to call at a particular port.”
“There is a deviation from the voyage contemplated by the policy— (a) Where the course of the voyage is specifically designated by the policy, and that course is departed from; or (b) Where the course of the voyage is not specifically designated by the policy, but the usual and customary course is departed from.”
“It may be said that no port is directly in the course of the voyage …, inasmuch as in merely entering a port or approaching it nearly you deviate from the direct course between the port of shipment and the ultimate port of destination. That is perfectly true; but in a business sense it would be perfectly well understood to say that there were certain ports on the way between Malaga and Liverpool, and those are the ports at which I think the right to touch and stay is given” (pp.355-356) (my emphasis) and: “I do not think that [the phrase “in any rotation”] carries the matter much further. When once the conclusion which I have indicated is arrived at, if the meaning to be given to those words is that the vessel may take those ports in any order she pleases in a reasonable sense, nevertheless the ports referred to must still, in my opinion, be ports lying between Malaga and the port of destination, Liverpool, even although there might be a justification for her not touching at any particular one of those ports, or more than one of them, in the exact order in which they would come in the voyage between those two places. It is not necessary to decide what effect should be given to those words “in any rotation”; but even giving to them the fullest possible effect they do not seem to me to enlarge the number of ports at which it would be justifiable for this vessel to touch during the course of her voyage.”
“… in these bills of lading I think it is clear that the voyage is not stated in terms. … Yet until a contract voyage is established, questions of deviation do not arise. Evidence was needed to prove what that voyage was and that evidence was tendered and was admitted without objection. Its effect was that the ship, having shipped the oil at Malaga, was to proceed "via Levante," calling at various ports as far eastward and northeastward as Palamos, and, returning thence, calling at other ports, until, having passed Malaga without calling again, she proceeded "directo" for the United Kingdom. No question arises here as to the precise meaning of "via Levante" or as to the ports to be called at and the order of the calls, which that expression may connote. This was shown to be a usual commercial route for the Cervantes to follow under the circumstances and to be the route which had been advertised for her for this voyage some time beforehand, and it was one which I think was reasonable underthe circumstances. I cannot see that it is the less a reasonableand usual commercial route, though the evidence referred only to the ships of the respondents' own line. Their prominent position in this trade, the number of ships they run, and the length of time that this kind of practice has been followed by them all go to prove this conclusion. … If a voyage via Levante became in fact the contract voyage, to which the contracts of carriage apply, or if, commercially, it was a due performance of whatever was agreed, the action fails, for the ship did not depart from a voyage so described and the bill of lading exceptions accordingly covered the loss sued for.”
“If a voyage via Levante became in fact the contract voyage, to which the contracts of carriage apply, or if, commercially, it was a due performance of whatever was agreed, the action fails, for the ship did not depart from a voyage so described and the bill of lading exceptions accordingly covered the loss sued for. At the Bar, however, it was contended that Glynn v. Margetson bound your Lordships to find that there had been an unauthorized deviation and that the exceptions did not apply. The authority of that case is unquestionable but the limits of the decision are also clear. The termini of the bill of lading voyage were expressly stated. The shipowner's claim was boldly made that a liberty to deviate, framed in almost universal terms, entirely overrode those limits and prevented what the ship actually did, or indeed almost anything else of the sort that the captain chose to do, from being an unauthorized deviation. The House decided that he was wrong and that the liberty did not cover the deviation, the principle being that these two parts of the bill of lading, the described voyage and the liberty to deviate, must be read together and reconciled, and that a liberty, however generally worded, could not frustrate but must be subordinate to the described voyage. It follows that, as soon as it is establishedin the present case that the described voyage was not departedfrom, there is no need to resort to or to interpret the liberty todeviate at all. … The deviation [in Glynn] was one, which not only took the ship to Burriana, a long way to the East and North-East of Malaga, but one, of which every league had to be retraced, and this, witha cargo of ripe fruit, necessarily involved deviation consisting inthe delay to proceed promptly towards the destination, apartaltogether from the line of route. Both judgments endeavour to keep the door open to a certain measure of departure from the strict “sea-track” without its being considered a deviation. These expressions were not meant to state the limits of permissible departures but to indicate the kind of facts to be taken account of, when proved, with a view to the recognition of a liberty. Lord Herschell speaks of certain ports being in the way of the voyage “in a business sense”
“The conclusion of the Court of Appeal, with which I concur,that the agreed voyage was one, which included the passage onwhich the oil was damaged, makes it unnecessary to discuss nowthe terms of the liberty to deviate and I will only say that, if, as I suppose is the case, parties may, if they can find apt words to do so, contract themselves even out of Glynn v. Margetson and make the liberty to deviate control the terms of the described voyage, the words used here - namely, "at any ports whatsoever, although they may be outside the route," seem to go far, and possibly far enough, to achieve this object.”
“The contract voyage has to be identified. It must refer to some route or other. It cannot be said as a matter of law that the meaning is necessarily by the direct sea track. In Frenkel v. MacAndrews Lord Dunedin quotes from Wills J. in Evans, Sons & Co. v. Cunard Steamship Co., the statement that the expression "the voyage from Bari to Liverpool" must be understood in a business sense, which were the words used by Lord Herschell in Glynn v. Margetson & Co. Lord Dunedin then proceeds: "That case (i.e., Evans' case) puts an end to the idea of the geographical route being the only route. It lets in the evidence of what the route under the circumstances of the ship really was. Many cases may be figured where there is more than one route which might be used by a ship. It might be a choice between the Suez Canal, the Panama Canal, or round Cape Horn. In such a case even if the port of starting and of destination were stated, it would be necessary to make inquiry to find out which was the usual route." Again in Frenkel's case Lord Sumner to the same effect said that evidence in that case was needed to prove what the voyage was and, being admitted, showed what was a usual commercial route, which in his Lordship's opinion was reasonable under thecircumstances. Lord Sumner again, after referring to opinions of Lord Esher and Lord Herschell in Glynn's case, goes on to say: "The mention of other matters, all of them depending on facts relating to the circumstance of trade and navigation and varying somewhat as time goes on and progress takes place, really shows how clearly these great authorities desired to guard themselves in view of the fact, that on many grounds deviation from the sea-track might still not be beyond the ordinary route. .... Such things must be matters of degree, and may not always be equally important for all classes of ships, all kinds of cargo, or all periods of trade." … In Frenkel's case the authorities last cited [Leduc and Glynn] were distinguished. … The real distinction drawn was that there was evidence showing that the contractual voyage was not the direct or ordinary sea route; ... The shipowners did not rely on the deviation clause. They contended that the steamer was on the contract voyage and had not departed from it when the oil was damaged in a storm between Malaga and Cartagena. In support of their contention they relied on the evidence which showed that the route taken was a usual commercial route for the vessel to follow under the circumstances, and was the route which had been advertised for her for the voyage some time beforehand andwas a route which was (as Lord Sumner in fact held) reasonableunder the circumstances. Lord Sumner added: "I cannot see that it is the less a reasonable and usualcommercial route, though the evidence referred only to the ships of the respondents' own line." This shows how remote such evidence is from evidence which would be required to prove a strict custom. Lord Sumner also treated the fact that the course of business was well known to those of the plaintiff's employees to whom he confided this part of his business, as strongly confirming the usual and reasonablecharacter of such a voyage, since no objection was taken, though no estoppel or collateral agreement arose. … … The cases cited above were cases of liners or general traders, and it may be said that the same principles do not apply in the same sense to a chartered vessel, carrying a single cargo for a single shipper or consignee. But even in such cases it is obvious thatthere will be in general various considerations, commercial ornavigational, which determine what sea route is usual andreasonable. Thus in the old sailing ship days, routes were chosen in order to make use of trade winds, and varied from season to season, and between the same termini there might be several usual routes. In modern times in all long ocean voyages, the need to replenish bunkers (coal or oil) has to be considered. The doctrine of stages of the voyage which enables a shipowner to start with bunkers sufficient for the stage, so long as he fills up his bunkers at the next bunkering port, necessarily involves calling at that port, and also perhaps, later ports, in order to fulfil the recurring obligation to keep the vessel seaworthy in regard to bunkers. Thus to call at such ports has become an ordinary incident of the voyage. The need to do so may help to determine the general route, for instance, whether it is to be by the Cape of Good Hope or the Suez Canal. A shipowner is entitled, withincertain limits determined by what is reasonable, to be guided in his choice of bunkering ports by considerations of cheapness and convenience. Thus evidence was given in this case that it is usual for a coal-burning ship bound to Australia by the Cape of Good Hope to bunker at Durban, where coal is cheaper instead of at Cape Town, though Durban is farther off the route. Other similar instances were given in evidence. … … The position therefore is that to call at some port for bunkers is no deviation, and the only question is whether Constantza is ausual and reasonable port of call for this purpose. … There are no doubt other available ports of call for this purpose, some, and perhaps all, of which would involve much less extra steaming. I think the shipowner is entitled to balance the cost to him of extra steaming against the cheapness or convenience of Constantza, so long as to do so is notunreasonable in regard to the interests of the charterer or anyother persons who might be concerned. … As the necessity of using ports of call for bunkering is so obvious, I think that less evidence is needed to justify that it is usual and reasonable to use a port like Constantza for that purpose, than if the ship had gone there for purposes of trade. But I do not think it necessary to lay down any specific measure of departure from the direct sea route which may be held to be reasonable. If I am asked how far I go, I say that I go as far as this case requires. The test of what is usual and reasonable in acommercial sense may arise in very different circumstances andmust be decided whenever it arises by the application of soundbusiness considerations and by determining what is fair andreasonable in the interests of all concerned.”
“In terms of geographical distance, the route via Panama Canal is marginally shorter than the route via Cape Horn. If ‘direct’ is taken to mean non-stop, then both Panama and Cape Horn are near enough equal in terms of transit time, when account is taken of the time taken to transit the Panama Canal transit (e.g. reduction in speed and clearing locks etc.).”
“Carriage of Goods covers the period from the time when the goods are loaded on to the time they are discharged from the ship”
“Subject to the provisions of Article VI, under every contract of carriage of goods by sea the carrier, in relation to the loading, stowage, carriage, custody, care and discharge of such goods, shall be subject to the responsibilities and liabilities, and entitled to the rights and immunities hereinafter set forth.”
“The above duties are what may be called warehousing duties. They could equally apply to a ship used only for storage or with modifications to the holding of goods in a warehouse onshore. It is therefore usual to say there are two further duties connected with the fact that while it is in a sense a warehouse, the ship moves. They are the duty to proceed with reasonable despatch and the duty not to deviate from the normal contract route.” 112.Carver § 9-033 states: “… beyond the warehousing duties lie duties connected with the ship as a moving conveyance. It is undoubtedly in the contract for carriage by sea and indeed in contracts for carriage in general ... there is an implied obligation to proceed with reasonable despatch. This is a matter which the Hague and Hague-VisbyRules do not attach (though the Hamburg and Rotterdam Rules do) so where delay is alleged it is common law which if anything must be relied on.” (my emphasis) Similarly, Carver § 9-036 begins by stating that the duty not to deviate requires a section on its own, and that “[u]nlike the principles so far referred to this has further and special consequences when the duty is broken.”
“… Article III.2 is directed at care of cargo and does not take in pure delay. From this it is sometimes argued that the carrier is under the Rules under no liability for delay, at least unless this risk is specifically accepted. It is submitted however that the common law duty of reasonable despatch must still be applicable: it is difficult to see on general grounds any reason why it should be excluded.”
“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 or breach of these Rules or of the contract of carriage, and the carrier shall not be liable for any loss or damage resulting therefrom”
“Having decided that "perils of the sea" has not been established and that the cargo loss was caused by the negligence of the defendants in not stowing same properly, it is not necessary to pursue the question of liability any further. However, even had my conclusion been otherwise on these matters, I would have found for the plaintiff because of the master's negligence in maintaining his course and speed on Nov. 18 and 19 in view of the weather reports he was receiving. As early as 05 00 hours on Nov. 18, he received a weather facsimile report which warned him that the storm centre was located to the southeast of his vessel and was moving in a northeasterly direction. It was clear to him that unless he changed his course, the ship's course and the storm's course were converging and yet he took no steps at that time to change course. His explanation for this failure to alter course was that since he was under a weather routeing from Ocean Routes Inc., he would remain on the Great Circle route prescribed by them until advised to deviate. He also acknowledged that if he had not been on the routeing prescribed by Ocean Routes Inc., and had been left to his own judgment, he would have taken action earlier to avoid the converging storm centre by altering course much sooner than he did. At 07 30 hours on Nov. 19, he finally altered course 30 deg. on his own initiative, having received no advice to this effect from Ocean Routes Inc. This action, however, was clearly "too little too late". The defendants, however, submit that the provisions of art. IV, r. 2 (a) of the Hague Rules protect them from liability in such circumstances and submit that said negligence is negligence "in the navigation or in the management of the ship" as contemplated by that rule. The leading authority covering a situation of this kind is the dissenting judgment of Lord Justice Greer in the Court of Appeal in the case of Gosse Millerd Ltd. v. Canadian Government Merchant Marine, (1927) 29 Ll.L.Rep. 190 who was upheld in the House of Lords (1928) 32 Ll.L.Rep. 91. At p. 200 of the report, Lord Justice Greer stated: If the cause of the damage is solely, or even primarily a neglect to take reasonable care of the cargo, the ship is liable, but if the cause of the damage is a neglect to take reasonable care of the ship or some part of it, as distinct from the cargo, the ship is relieved from liability; for if the negligence is not negligence towards the ship, but only negligent failure to use the apparatus of the ship for the protection of the cargo, the ship is not so relieved. The House of Lords upheld Lord Justice Greer declaring the error was in the management of the cargo because, although made by persons directing their attention to the ship, it was one which affected cargo alone. Applying the ratio of this case to the facts in the case at bar, I have concluded that the master's negligence referred to sup. in maintaining his course and speed on Nov. 18 and 19 in view of the weather reports he was receiving was an error constituting a negligent failure to use the apparatus of the ship for the protection of the cargo and affected the cargo alone. There is no evidence that the ship was in danger at any time throughout the storm, and, in fact, the ship suffered no damage. The evidence is that the master took good care of his ship. He decreased his speed twice, on Nov. 19 to less than 18 knots at 05 45 hours and to 12 knots at 10 59 hours. The reason he gave for said decreases was because the propeller was coming out of the water resulting in "over torquing" which would have resulted in no motor power. The master took good care of his ship but was negligent in his care of the cargo by not altering course much earlier than he did which would have enabled him to get away from the converging storm centre. For these reasons, the defendants are not, in my view, entitled to rely on the exculpatory provisions of art. IV, r.
“… In practice it is rare that a deviation that is reasonable within the meaning of the Hague Rules will be a deviation at all at common law, because one of the elements of deviation at common law is a departure from the usual route “unless for cause justifying such deviation” [fn. citing Scaramanga v Stamp (1880) 5 C.P.D. 295, per Bramwell LJ at 306]. Thus, a specific departure from the usual route, for example, to protect the cargo from the effects of bad weather, would be justified. [fn. 624] And indeed a failure to do this may be a breach of the obligations to care for the cargo, with no defence afforded by Art. IV r.2(a) – see The Washington [1976] 2 Lloyd’s Rep. 453.”
“72. … Furthermore, because he considered that general industry practice could not render a system sound, unless it was underpinned by this theoretical calculation or empirical study, the judge essentially discounted general industry practice. In that regard, he also erred in law. It is well established that one of the indicia of a sound system is that it is in accordance with general industry practice. 73. This emerges from the passage in the speech of Lord Pearce in the Albacora case cited at para 66 above [in which Lord Pearce referred to “a sound system under all the circumstances in relation to the general practice of carriage of goods by sea”] and also from the judgment of Bingham J in Gatoil International Inc v Tradax Petroleum Ltd[1985] 1 Lloyd's Rep 350 . In that case, upon discharge of a cargo of crude oil, a high percentage of the cargo was found to have formed a hard, waxy, unpumpable residue in the bottom of the vessel's tanks (“the ROB”). The cargo claimants contended that the carrier was in breach of its obligations under article III, rule 2 in failing to heat the cargo. The judge rejected that contention, on the basis that there was no general industry practice to heat crude oil cargoes of that particular blend. Having cited the Albacora case and The Flowergate, he held, at p 365: “… I readily accept that owners cannot escape liability by appointing a stupid or ignorant master and then relying on his unawareness of the risks involved. It is what they know or ought to know which matters. But even applying that test I am satisfied that Panatlantic did not act carelessly or inconsistently with standard practice in failing to heat the cargo at the beginning of this voyage. It is not general practice to heat crude oil cargoes. If the cargo had been of a crude known to be abnormally heavy and viscous, the position might be different, but the Belayim blend was not generally known or believed to give rise to problems of this kind. Panatlantic omitted no reasonable precaution which any ordinary owner would have taken, particularly where the charterer required no heat. The excessive ROB formed because, for reasons not foreseen or apprehended by Panatlantic, the cargo would not survive a voyage of this length at this time of year without heat. There was, in my judgment, no breach of article III, rule 2, but in any event Panatlantic are entitled to rely on article IV, rule 2(m).” … 76. … I consider that there are two serious problems with the judge's conclusion about the absence of any general practice. The first is the one I have already alluded to, that his conclusion was clearly influenced by his erroneous view that no general practice would be effective to demonstrate a sound system, unless it was underpinned by a theoretical calculation or empirical study. The second is that his conclusion is simply against the weight of the evidence, specifically it completely ignores the common ground between the experts, set out in the joint memorandum, by reference to the industry publications they had exhibited that: (i) carriage of coffee beans in bags in lined non-ventilated containers is widespread commercial practice; (ii) although corrugated cardboard is preferable to kraft paper, kraft paper is common commercial practice and covered by the industry recommendations; (iii) two of the guides specifically recommend using double layers of kraft paper but the others are silent on the point; and (iv) the industry recommendations did not specify a particular grade or thickness of kraft paper, but some mention “good quality” and “sufficiently strong” kraft paper.” “… I readily accept that owners cannot escape liability by appointing a stupid or ignorant master and then relying on his unawareness of the risks involved. It is what they know or ought to know which matters. But even applying that test I am satisfied that Panatlantic did not act carelessly or inconsistently with standard practice in failing to heat the cargo at the beginning of this voyage. It is not general practice to heat crude oil cargoes. If the cargo had been of a crude known to be abnormally heavy and viscous, the position might be different, but the Belayim blend was not generally known or believed to give rise to problems of this kind. Panatlantic omitted no reasonable precaution which any ordinary owner would have taken, particularly where the charterer required no heat. The excessive ROB formed because, for reasons not foreseen or apprehended by Panatlantic, the cargo would not survive a voyage of this length at this time of year without heat.
“Ship sweat refers to condensation which forms directly on a vessel’s structure when the air within a hold, made warm and moist by the cargo, comes into contact with cold surfaces as the vessel moves into cooler climates. Cargo may be damaged by overhead drips, by contact with sweat which has formed on the ship’s sides or by condensed water which may accumulate at the bottom of the hold.”
“Influencing factors Saturation The amount of water vapour that air may contain is highly dependent on its temperature. A given volume of air is said to be saturated when no more water can be absorbed. If the air temperature then falls, condensation will occur. As air rises in temperature so does its saturation moisture content; its capacity to retain water climbs by ever-increasing amounts. Thus when air is cooled, its potential for releasing water in the form of condensation is far greater when it is cooling from higher temperatures than when cooling from lower temperatures. Apart from periods of fog or rain, ambient air is rarely saturated. Moreover, it will never be totally dry. Within these two extremes the amount of water retained by the air will vary according to the prevailing conditions. Relative humidity Relative humidity is the actual amount of water vapour in the air compared with the saturation amount of water vapour in the air at the same temperature and pressure. The figure is usually expressed as a percentage, with saturated air having a relative humidity of 100%. At main deck level, ambient sea air over the open oceans will normally have a relative humidity in excess of 80%. Dewpoint temperature When an isolated volume of air cools, relative humidity increases as the temperature falls. Once the temperature has descended to the level at which saturation occurs, water begins to condense. This temperature is known as the “dewpoint” …”
“What to expect In broad terms it is often possible to estimate ventilation requirements in advance by considering the climatic changes likely to be encountered during the voyage. The following examples indicate what may be expected on passage, but do not obviate the need for detailed monitoring and recording: Hygroscopic cargo - cold to warm climate If a stable cold cargo is carried to a warm climate, ventilation will always be unnecessary. Indeed, in some circumstances ventilation may lead to cargo damage. Hygroscopic cargo - warm to cold climate Vigorous surface ventilation of the cargo spaces will almost certainly be required due to the likelihood of ship sweat developing.”
“Three Degree Rule In many instances it is impracticable to measure hold dewpoint temperatures accurately, or at all. In such cases ventilation requirements may be estimated by comparing the average cargo temperature at the time of loading with the outside air temperature several times a day. Ventilation may then be carried out on the following basis; VENTILATE if the dry bulb temperature of the outside air is at least 3°C cooler than the average cargo temperature at the time of loading. DO NOT VENTILATE if the dry bulb temperature of the outside air is less than 3°C cooler than the average cargo temperature at the time of loading, or warmer. In order to apply the Three Degree Rule, it will be necessary for the ship’s staff to take a number of cargo temperature readings during loading. Hand-held infrared thermometers are ideal for this task and are relatively inexpensive.”
“Records Ventilation records are crucial. In the event of moisture damage, evidence showing that the vessel ventilated correctly may be instrumental in defending any ensuing claims. If the Dewpoint Rule has been followed, wet and dry bulb temperatures and dewpoints should be logged once per watch, bearing in mind that these may change considerably over a short period. For the same reason, the sea temperature should also be noted. This information should be recorded for each hold together with the times of commencing, ceasing or resuming ventilation, and the reasons for doing so. If the Three Degree Rule has been followed, a record should be kept of the ambient air temperature and the sea temperature once per watch together with the average temperature of the cargo at the time of loading. Again, ventilation details should be documented for each hold.”
“A. It is not correct because ventilation, properly carried out at times when conditions are conducive to ship sweat, will remove the moist and warm air and replace it with less moist, less warm air, stopping -- reducing the scope for -- if it is done at all times when it is possible to do it, it is safe to do it and it is required, ship sweat does not happen. Otherwise, we would have a global crisis with carrying hygroscopic cargoes. The majority of cargoes do not arrive in a wet and spoiled condition, and the reason for that is ventilation.” iii) It is correct that ventilation operates to remove the hot, moist air from the head space (and does not penetrate deep into the stow) but “it is in the head space that the problem originates” and: “A. Yes. …It is important to understand that the headspace is the spring. It is where the moisture -- the liquid moisture that is running down the sides of the holds and soaking the top, it is where it originates. You switch that off, you stop the problem. The longer it continues, the more you are adding to the problem, I mean below the surface.”
“A. But you will need to have the crew members on standby, taken off their normal duty rota, standing by in the mess doing nothing and just waiting for the officer of the watch’s call to say, “Boys, there is rain out there. I want you to close the hatch covers.”
“If it was your intention to follow a voyage where ventilation was required - - sorry, where ventilation was required on a 24hour basis, you would, as a prudent shipowner, make those crews available. And at$350 a month, which is the salary that the Filipino APs are being paid, is small potatoes, quite frankly.”
“Ship masters, including myself, are very finicky about damaging cargo. Now, if you do it, you are damned. If you don’t do it, you are damned. But in this instance, at night, no master would like to take the risk of keeping the ventilators open and just missing that one green sea he takes over the bow of the vessel and it ends up in one of the cargo holds. Now he is faced with seawater ingress. This is the whole point, that no ship master wants to take that risk.”
“The likelihood of injuring themselves goes up at night, purely and simply because the vessel is on the high seas. She is rolling, it is night-time, the decks are wet and slippery. Somebody has to stand up above the deck to secure the ventilators. So there is that risk.” adding that: “The context is that at night, you would not want to have a crew member venture out on deck on his own. If you have to send somebody out, the people - - whoever is sending him out should know, there should be a good form of communication and he should be accompanied by somebody. Because, like I say, in dark, it is a very treacherous area, the forward decks. You don’t want somebody out there walking on his own.”
“Q. I tell you what is industry practice: you simply don’t ventilate at night. You simply don’t do it because there is an inherent risk to the crew. That is right? A. No, it is nonsense, quite frankly. With all due respect, it is nonsense to say it is not done for the safety of the crew. .. A. If it were true, then all those diligent, competent, prudent shipowners that do ventilate at night are, by definition, placing their crews at risk and always have done, because this has been industry practice, in general cargo and multipurpose dry cargo and container cargoes as well as bulk carriers, for my entire career. Q. So as I say, Captain Soomro, Mr Patterson, the chief officer who was actually on deck, all talking nonsense; not industry practice to ventilate at night? A. I said it is a nonsense to suggest that it is industry-wide practice not to ventilate at night. There is a proportion of the market that does that, but they are also the ones that you will find don’t supply torches, don’t supply safety helmets, don’t supply boots, don’t supply thermometers.”
“During periods of sea passage where cargo ventilation was considered possible it was seen that on average the cargo was ventilated between 09h00 – 16h00; it may be argued that the cargo could have been additionally ventilated from 0600 and up to 18h00 thereby providing an extra 5 hours ventilation per day.”
“Q. You don’t think that night ventilation on board bulk carriers carrying bulk cargoes is appropriate. A. I have not expressed an opinion on it. I would say that it would depend very much on the prevailing weather and sea conditions at the time.”
“Q. … So you repeating, aren’t you, that you can only ventilate in daylight hours? A. I have said that, sir, yes. Q. Yes, and that is because it reflected your view that night ventilation was inappropriate. A. It makes sense. Q. Well, I am asking what your view is. You must have held that view, because you wrote what you did. A. That is correct. I stand by the - - I stand by what I have said in the reports and - - yes. Q. If we turn over the page to 1291, do you see point 10 towards the bottom of that page? A. I see that, yes, sir. Q. You write: “As the vessel was not mechanically ventilated, manual ventilation of the cargo holds was accordingly only undertaken during daylight hours with corresponding periods of fair weather.”
“The Charterers instructions for cargo care to be strictly followed, unless it is felt that it is detrimental for the cargo. Ventilation of cargo is extremely critical on certain voyages. Please refer to guidelines on Ventilation of cargo, in Thomas’ stowage, and refer to the individual properties of the cargo. The relevant publications for cargo care to be consulted and ventilation, monitoring and recommendations to be carried out accordingly. In case any doubts about cargo care, do not hesitate to contact the Office for consultation/ advice/instructions.”
“He … told us that the cargo was not ventilated at all during the sea passage. However, this account conflicts with the deck logs and ventilation logs which show that some (albeit limited) ventilation did take place.”
“It was also established through conversation (again not formerly) that the cargo had not been ventilated during the sea passage as per instructions issued to the vessel. Again no correspondence and or written instructions issued to the Vessel in this regard have been sighted by us.”
“At an early stage of the surveys in Durban it was indicated independently to the Disponent Owner’s surveyor that the cargo holds had not been ventilated at any stage during the ocean voyage from Mexico to South Africa [fn. citing Africacargo report dated27 September 2016 ]. The Disponent Owner’s survey report does not make clear the source of this information although it is implicit that the source was a member of the vessel’s crew. Very shortly afterwards the Master stated to the cargo underwriter’s surveyor that the cargo holds had not been ventilated at any stage during the thirty-nine day voyage from Mexico to South Africa [fn. citing Mr Patterson’s witness statement]. Following these exchanges, the crew were instructed not to discuss the voyage or any other matter with representatives of the Disponent Owner, the cargo insurer or the cargo receiver. The surveyors for cargo interests and Disponent Owners were informed that they were not permitted to speak to any member of the Vessel’s crew on any subject. Any questions concerning the voyage or cargo care were to be routed through the Shipowners’ P&I surveyors [fn. citing Patterson report dated20 January 2017 ].”
“Had the Master/Chief Officer closely monitored the sea and wind conditions on a 24 hour basis and opened the hatch cover ventilators and access hatches at each and every opportunity it was safe to do so, then the degree and extent of moisture damage would have been far less than was sustained. Conscientious management of cargo hold ventilation is essential if condensation is to be prevented or kept to a minimum in conditions where heavy condensation is certain to occur on each and every occasion that the ventilators are closed. That attention to cargo care did not occur in ‘Santa Isabella’. I cannot say with certainty there was any ventilation of the cargo holds. The ventilation effort that was recorded in the Ventilation Log disclosed by the ship owner was wholly insufficient.” and at §§ 185-187: “There are significant questions regarding the ventilation that the ship owner says were carried out. The Master initially stated to surveyors attending on board at Durban that the cargo had not been ventilated during the long ocean voyage. The damage to the cargo in all holds, including heavy wetting, caking and fermentation of grain around the peripheries, and sprouting grain across the top surface, fits with the scenario initially reported by the Master. It is consistent with sustained high temperature and sustained high humidity. If that is the case, then it is possible the Ventilation Log was produced at Durban after the fact. That would explain the seemingly random nature of the entries. The periods of cold air surface ventilation of the cargo implied by the Ventilation Log data should have controlled any populations of insect pests inside the cargo holds. Likewise, cold air aeration would have prevented germination or killed any existing sprouts on the wet grain. Nonetheless, sprouting grain was recorded on the top surfaces of the piles at Durban and tropical insect grain pests were found within the upper sections of the cargo piles. These observations are inconsistent with cold air ventilation and raise questions concerning the reliability of the Ventilation Log data. If the Ventilation Log data is accepted at face value, then there was no ventilation for 72% (65%) of the period of the voyage that it was necessary and safe to ventilate the cargo to prevent ship’s sweat.”
“The Master, and possibly other crew members, stated shortly following completion of the voyage, that the cargo holds had not been ventilated during the voyage. Nevertheless, if the cargo was ventilated during the voyage then the method used by the crew is not apparent from the contemporaneous records. The Ventilation Log contains almost none of the information one would expect to find in a Chief Officer’s cargo temperature and ventilation record. For example, there are no temperatures, no point of reference temperature relating to the Three Degree Rule method, no dew point temperatures and no remarks explaining why ventilation is or is not being carried out. Given all of the above, it is not reasonable to conclude that the cargo was ventilated in accordance with a sound system.”
“Q. … And I am putting to you that the deck logs, and indeed the ventilation logs, show as a matter of fact there was. Are you accepting that those records are problematic or inaccurate or what? What are you saying? A. If one is to accept them at face value, then there was partial ventilation. But the master’s initial statement to Patterson and the other witnesses, including the receivers, that he did not ventilate the cargo holds is consistent with the condition of the cargo. Q. Just to be very clear: you are accepting the accuracy of those documents at face value? A. I have no evidence that they are not an accurate record of what took place.”
“Given the restriction of ventilation due to adverse weather at the earlier stage of the voyage and subsequent long periods that prevented ventilation further into the voyage, the damage is likely to be about the same extent as that which was noted on arrival at Durban in that the top layer of cargo (and possibly further down) would have been wet and mouldy on at least the top layer, with caking in places.”
“then the effects of that condensation would have been ameliorated considerably. Humid air would have been purged from the void spaces and liquid moisture on exposed steel surfaces would have evaporated. Moisture in the cargo top surfaces would have evaporated to a degree or dried altogether. Ventilation during the coldest period to the south of Cape Horn would have drawn heat from the top surface altogether. Process of deterioration would have been retarded or stopped altogether, heat would not have amassed in the affected top surface and germination of wet grain would not have occurred. Had the Master/Chief Officer closely monitored the sea and wind conditions on a 24 hour basis, and opened the hatch cover ventilators and access hatches at each and every opportunity it was safe to do so, then the degree and extent of moisture damage would have been far less than was sustained.”
“The Cape Horn route and the planned slow speed meant that wholesale deterioration in the cargo was largely unavoidable unless the crew were alive to care of the cargo 24 hours a day throughout the entirety of the voyage.”
“Q You told us yesterday that you had never carried corn around Cape Horn; is that right? A. That is correct, yes. Q. Have you ever before as an expert investigated a case of condensation damage to grain which has been carried around Cape Horn? A. No. Q. Have you ever before as an expert investigated a case of condensation damage to grain that involved the extremes of temperature that we see on this voyage, coupled with boisterous weather interrupting ventilation? A. No. Q. What I suggest to you is if there had been 24-hour ventilation in the way that we say, then the out-turn condition - - taking the route via Cape Horn, the out-turn condition in South Africa would have been that you have had a dried, cooled crust on top of the cargo and no worse than that. Do you want to comment on that? A. If ventilation was allowed, if it was possible to allow, weather permitting, then yes, I would agree with you, because ventilation would then prevent - - can prevent the formation of condensation. But in any sea venture, there are periods where weather would be expected to be bad and if ventilation is required, then certainly ventilation would be restricted. Q. What I am suggesting is that, in fact, if the crew had ventilated through the night on those occasions when weather permitted, then the out-turn condition would have been a cool, dry crust on top of the cargo and no worse than that. A. I would agree.”
“So I want to be very clear about what you believed was the cause of the cargo damage: it was the duration of the voyage in excess of 21 days more than anything else. A. Extended period at sea, correct, yes. Q. Yes, so what you are saying is the damage to this cargo of maize was inevitable simply by virtue of the fact it was carried from Mexico, which was always going to take more than 21 days, whatever route was taken. A. I believe that, yes. Q. And what you are also saying here, I think, is that even if the cargo was ventilated constantly, that would not have eliminated the development of cargo damage. A. That is correct, albeit it is debatable. But that is what I believed, yes. Q. And I think that must be true because, as you go on to say, natural ventilation never gets down into the stows, does it? It can’t penetrate the body of the cargo. A. That is correct.”
“The only thing I would like to add, sir, is on this particular vessel, the hatch covers were opened. The vast majority of the damage was possibly to stow surfaces and we concluded that the moisture would have eventually migrated down there.”
“It may have been a different outcome. In other words, it may have been negligible damage. It may have been no damage at all. But that is pure speculation on my part, as we did not deal with any vessels carrying that maize from Topolobampo to Durban that had routed through the Panama Canal.”
“In a situation such as this where a large proportion of the cargo has spoiled and there is a live infestation, had the shipowners sought proper expert advice, then together with the fumigation, they would have disinfested the areas outside of the cargo holds. That would have meant removing all of the cargo debris that was in bags or big bags or loosely piled on deck and then properly high pressure hosing down every inch of the topside areas. I am talking about the masts, the cranes, the deckhouses and the entire accommodation and then applying contact pesticides as necessary.”
“23. Responsibilities and immunities … (3) Save to the extent otherwise in this Charterparty expressly provided, neither party shall be responsible for any loss or damage or delay or failure in performance hereunder resulting from…quarantine…restraint of princes, rulers and peoples or any other event whatsoever which cannot be avoided or guarded against. … [Laytime at discharge] 46. … Any delays caused by ice, floods, quarantine or by cases of force majeure shall not count as laytime unless the Vessel is already on demurrage.”