ECLI:NL:RBROT:2016:6226
Rechtbank Rotterdam · 30-03-2016 · zaaknummer C/10/474003 / HA ZA 15-359 en C/10/474012 / HA ZA 15-360
Inhoudsindicatie
Summary in English ‘Happy Rover’ - Carriage of goods (i.a. a crane and mining shields) by sea under named bills of lading from the Netherlands to Australia via the USA in February 2012. During passage of the Atlantic the vessel encountered heavy weather. The mining shields stowed in the holds shifted resulting in damage to the mining shields, the crane and to the vessel. At Philadelphia the cargo was re-stowed and re-secured. Shipowners claim general-average. Cargo interests claim damages. The issues which party has title to sue and which party is responsible as carrier have to be decided in accordance with the law of the country of the agreed destination, and so Australian law (art. 10:162 Netherlands Civil Code; NCC). Under Australian law the named consignee has title to sue, irrespective of whether or not cargo-underwriters have in the meantime reimbursed the consignee. Under Australian law the party indicated on the bill of lading as the carrier shall be deemed to be the carrier. Therefore in this matter the shipowner was held to be the carrier. The contracts of carriage are governed by the Hague-Visby Rules (HVR) and Netherlands law. The carrier relies on the exemption for Perils, dangers and accidents of the sea (art. 4, §2 HVR), contending that 10 meter high ‘freak waves’, coming in from a different angle than the swell, caused the vessel to list heavily (40 degrees) to starboard and then to pitch and that these excessive forces caused the cargo to break through its lashings and securing resulting in damage to the cargo and the vessel. Cargo-interests deny that the alleged incident has occurred and argue that waves at the height of 10 meters are not excessive at the Atlantic in February. Further cargo-interests deny that the damage was caused by the alleged incident, contending that the carrier did not properly stow and secure the cargo in the holds. The Court considered that for the operation of the perils of the sea exemption it is sufficient that the peril was inevitable and that it is not necessary for the peril to be unforeseeable. The Court held that in accordance with the HVR system (i) the onus of proof of the occurrence of the peril and of the peril being the cause of the damage lies with the carrier and (ii) in the event the carrier so shows proof, the onus of proof that the damage was caused by the carrier not properly stowing and caring for the cargo lies with cargo-interests. Considering the evidence provided of the contended peril the Court found this not to be conclusive. In respect of the statements of the Master and crew the Court considered that these had to be drawn up in compliance with art. 353 of the (old) Netherlands Commercial Code and that art. 356 of that code provides that assessing the weight of this evidence is in the discretion of the Courts. The Court allowed the carrier to show proof of the occurrence of the peril and of the peril being the cause of the damage. The Court considered that the criteria for properly stowing, securing and caring for the cargo can be found in the SOLAS-convention and the Code of Safe Practice for Cargo Stowage and Securing (CSS Code) based on that convention. The CCS Code provides that an approved Cargo Securing Manual (CSM) shall be on board. The Court considered that the carrier did not show proof of these regulations having been complied with. Considering the evidence at hand the Court found that cargo-interests have shown preliminary proof that the carrier did not properly stow the cargo and that this breach caused the damage. The Court allowed the carrier to disprove this evidence. Zeevervoer onder cognossement. Hague-Visby Rules (HVR). Perils of the seas? Onvoldoende stuwage en zorg voor de lading? Maatstaven. Bewijslast.
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