Properly Carry, Keep and Care for Cargo - art. 3(2) of the Hague/Visby Rules
Published in  ETL 9-35
II. Historical Background
3) Common carriage
4) The Hague/Visby Rules
5) The Rules - the basic framework for today's
III. Stringent Obligation
IV. Erroneous Decisions
V. A Personal Obligation of the Carrier
VI. Not an Absolute Obligation
VII. Burden of Proof
VIII. Obligations When Receiving Cargo
1) Obligation to study cargo
2) Obligation to refuse cargo
3) Instructions for special cargoes
IX. Lack of Due Diligence, Improper Care of Cargo and Exculpatory Exceptions
X. Obligation to Sell Cargo
XI. Examples of Proper and Improper Care
1) In general
2) Freeze damage
4) Fire damage
5) Water or moisture damage
7) Lack of ventilation
XII. The Domestic Law of France
XIII. The Hamburg Rules
PROPERLY CARRY, KEEP AND CARE FOR
One of the least considered and most important articles of the hague and Hague/ Visby Rules is art. 3(2), which lists the basic obligations of the carrier as follows::
"Subject to the provisions of Article 4, the carrier shall properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried." (Emphasis added.)
And one of the least commented on obligations of art. 3(2) is to "carry, keep [and] care for" the goods.
It is noteworthy that the obligation is not only to "carry" but also to "keep" and to "care for". This is very explicit language.
II. Historical Background
The Hague and Hague/Visby Rules have not merely modified the responsibility of bailees and carriers at common law for the care of cargo but have replaced them with a new set of rules. The Hague and Hague/Visby Rules also distinguish themselves from the law governing bailees and carriers by applying to the "ship", as well as to the "carrier", and by applying as well in civil law jurisdictions, where the terms "common carrier" and "bailee" are unknown and have no place.
It is therefore dangerous, without proper warning to the reader, to compare the responsibility of the carrier under the Hague or Hague/Visby Rules with the responsibilities of bailees and common carriers under the common law. In the light of the foregoing caveat, it would nevertheless seem useful to compare the responsibility of bailees and common carriers, on the one hand, and of carriers and the ship under the Hague and Hague/Visby Rules, on the other.
When a bailee at common law is entrusted with goods for reward, he is "bound to ordinary diligence and to a reasonable exercise of skill"(2) and he is only responsible for losses occasioned by the ordinary negligence of himself or of his servants.(3) The bailee, however, has the burden of proving that he or his servants were not negligent.(4)
3) Common carriage
The shipowner's liability at common law depends on whether or not he is deemed to be a common carrier. If he is not, he will incur no responsibility beyond that of any ordinary bailee for hire, that is to say, the responsibility of ordinary diligence.(5) If, on the contrary, the shipowner is deemed to be a common carrier, the common law will impose upon him exceptionally stringent obligations.(6)
It will not be enough for him to show that he was not negligent. He must deliver the goods at destination in the same condition in which he received them and his failure to do so will make him strictly liable, i.e. liable as an insurer.(7) The carrier may, however, escape liability by proving that one or more of the common law exceptions (i.e. act of God, Queen's (public) enemies, inherent vice, etc.) are applicable.(8)
4) The Hague/Visby Rules
The Hague and Hague/Visby Rules have modified some of the exceptional obligations imposed at common law on the carrier. The obligation to provide a seaworthy ship is no longer absolute. Art. 3(1) only requires that the carrier prove that he exercised due diligence to make the ship seaworthy before and at the beginning of the voyage. The obligation of the carrier in respect to caring for the goods at art. 3(2) is that he act "properly and carefully" in performing his various tasks, such as loading, stowing, etc. This obligation is slightly less stringent than that of the insurer at common law. The Hague and Hague/Visby Rules carrier may also exculpate himself by any of the exceptions in art. 4(2)(a) to (q) and is furthermore protected by the package or kilo limitation and the one-year delay for suit. Finally, and most importantly, the carrier's obligations are fixed by art. 3(8), which declares them to be of public order or of public policy. In consequence, they may not be reduced even by agreement of the carrier and cargo interests.
5) The Rules - the basic framework for today's cargo litigation
The Hague and Hague/Visby Rules now provide the basic legal structure for the adjudication of claims arising from the carriage of goods by water under bills of lading in and between most countries of the world. Consequently, common carriage is now irrelevant in virtually all bill of lading cases, and bailment is considered only very rarely in such litigation.(9) In fact, claims in tort generally are less frequent under Hague/Visby than they were under Hague, now that art. 4bis(1) of Hague/Visby provides that the defences and limits of liability of the carrier under those Rules apply whether the action is founded in contract or in tort. The Hamburg Rules, at art. 7(1), similarly provide that those defences and limits are the same, "whether the claim is founded in contract, in tort or otherwise."
In the United States, marine cargo claims are now treated as subject to a single, statutory remedy (COGSA), rather than to an array of common law claims,(10) thereby excluding bailment(11) and other tort remedies such as negligence. This is so despite the fact that marine cargo claims are regarded in the United States as "hybrid" claims sounding in both contract and in tort.(12)
In short, bailment and common carriage are now matters of primarily academic and historical interest in regard to the carrier's duty to care properly and carefully for cargo which it carries by sea under bills of lading.
III. Stringent Obligation
Care of the cargo under the Hague or Hague/Visby Rules is a stringent obligation, because art. 3(2) states that the carrier shall "properly and carefully" care for the goods. The obligation therefore is not only to act "carefully" but also "properly". There is nothing in the Hague or Hague/Visby Rules referring to due diligence to care for the cargo. The only references to "due diligence" in the Hague and Hague/ Visby Rules are at arts. 3(l) and 4(1), both in respect to making the vessel seaworthy, and at art. 4(2)(p) which refers to latent defects of the ship "not discoverable by due diligence". Nevertheless, courts, particularly in the United States, continue to refer to due diligence to care for cargo.
The reference to due diligence in caring for cargo has resulted in further errors. Some courts have stated that the carrier need prove only due diligence to care for cargo in order to exculpate itself. This is incorrect - the carrier must prove the cause of the loss,(13) that he exercised due diligence to make the vessel seaworthy in respect of the loss,(14) and then he may prove one of the exculpatory exceptions listed at art. 4(2)(a) to (q). At this point, lack of proper and careful care of cargo is an argument available to the claimant, who uses it to show the true cause of the loss and to contradict the exculpatory exceptions raised by the carrier.(15)
IV. Erroneous Decisions
There are a number of erroneous judgments, relying for the most part on one another, which state that the carrier need exercise only due diligence to care for cargo. A study of these judgments indicates that the theory, besides being contrary to the wording of the Rules, does not appear to be based on any valid precedent. Thus, in Calif. Packing Corp. v. Matson Navigation Co.,(16) it is stated: "As respondent maintains, if he can show due diligence in protecting the cargoes, he need not show how the damage did, in fact, come about." The Court cites Pettinos Inc. v. American Export Lines(17)as authority. This latter judgment relies on The Vermont,(18)which, it is submitted, is erroneous.(19)
Over the years, the same erroneous thinking has unfortunately affected decisions on the burden of proof under COGSA.(20) Even the Fifth Circuit, in recent years, has espoused the position that after the cargo claimant makes its prima facie case of carrier liability, "... the burden then shifts to the carrier to prove that it exercised due diligence to prevent the damage or that harm was occasioned by one of the excepted causes set out in 46 U.S.C. §1304(2)."(21) (Emphasis added).
The above statement is patently wrong, because 46 U.S. Code Appx. 1304, i.e. COGSA at sect. 4, does not refer to due diligence to care for the cargo, but only to due diligence to make the vessel seaworthy before and at the beginning of the voyage, as required by sect. 3(1). The standard of proper and careful conduct in sect. 3(2), being close to that of an insurer, is higher than the standard of due diligence in sect. 3(1) and it continues from loading to discharge, as opposed to being limited to the pre-voyage period. As one U.S. court has correctly put it: "The duty of care for the cargo is statutorily and conceptually different from the duty of due diligence to provide a seaworthy vessel."(22)
V. A Personal Obligation of the Carrier
The duty to look after the cargo carefully and properly is an obligation personal to the carrier. In consequence, carriers may not be excused for improper care of cargo by arguing that the loss or damage is attributable to their having followed the advice of competent independent contractors whose services they retained. In this regard, a number of English decisions have stressed the similarity between the carrier's personal duty of due diligence in respect of seaworthiness and its personal duty of proper care of the goods carried. In International Packers London Ltd. v. Ocean Steam Ship Co., Ltd., McNair J. held:(23)
"The obligation imposed by Art. III, r. 2, like the obligation imposed by Art. III, r. 1, to exercise due diligence to make the ship seaworthy, is an obligation imposed upon the shipowner himself which he cannot escape on proof that he employed a competent independent contractor who was in fact negligent.... I can see no difference in principle between the shipowner's obligation under Art. III, r. 1, and that under Art. III, r. 2. As a matter of law, therefore, I would hold that the defendants would be liable if the surveyor gave negligently wrong advice."
This interpretation of art. 3(2) was approved by Lord Merriman in Riverstone Meat Co. v. Lancashire Shippng Co. (The Muncaster Castle),(24) the landmark House of Lords decision on the carrier's non-delegable duty of due diligence as regards seaworthiness under art. 3(1). It was also reiterated by McNair J. in Leesh River Tea Co. v. British Indian Steam Navigation Co.(25) Keeping, caring for and carrying the cargo may therefore be considered to be "non-delegable" responsibilities of the carrier.
With respect to the other obligations which the carrier must discharge under art. 3(2), however, notably loading, stowage and discharge, the United Kingdom takes the position that the parties to the contract of carriage are free to agree to transfer some or all of those duties to the shipper, consignee or charterer (e.g. by inserting "FIO" clauses in the bill of lading).(26) Accordingly, the carrier is required to load, stow and discharge carefully and properly, but only to the extent that it has undertaken contractually to perform those specific functions.(27)
In the United States, judicial opinion is divided on the question of whether or not loading, stowing and discharging are "delegable" or "non-delegable" duties, but the majority opinion is that they are "non-delegable" obligations, and that their transfer to cargo by contract violates sect. 3(8) of U.S. COGSA.(28) It has been held that because of the non-delegable character of the carrier's duty under sect. 3(2) of COGSA,(29) "... a carrier may not insulate itself from liability for breach of this duty by the use of independent contractors."(30)
VI. Not an Absolute Obligation
The obligation under art. 3(2), although a stringent one, is not absolute. The carrier must fulfill his obligations "properly and carefully", which does not mean, however, in a manner absolute and perfect. Lord Pearson, in Albacora S.R.L. v. Westcott & Laurance Line Ltd., stated:(31)
"The word 'properly' adds something to 'carefully', if 'carefully' has a narrow meaning of merely taking care. The element of skill or sound system is required in addition to taking care."
Lord Reid believed that "properly" meant in accordance with a sound system and went on:(32)
"... the obligation is to adopt a system which is sound in light of all the knowledge which the carrier has or ought to have about the nature of the goods."
The addition of the word "properly" to the word "carefully" makes the degree of care very close to the common carrier's obligation of insurer, as opposed to the bailee's obligation of reasonable care and ordinary diligence.(35) Proper care of the cargo involves a consideration of whether the carrier and its servants, agents and contractors have acted competently in accordance with contemporary industry standards.(36)
The word "properly" does not define the scope of the voyage or the port of discharge; rather they are decided upon by the parties in the bill of lading.(37)
Because the obligations imposed by art. 3(2) are not absolute, but remain subject to art. 4, the carrier may avoid liability by proving that the loss or damage was in fact caused by one of the exceptions of art. 4(2)(a) to (q). U.S. COGSA, at sect. 3(2),(38) omits the introductory words "Subject to the provisions of Article 4" which figure at the beginning of art. 3(2) of the Hague and Hague/Visby Rules. This omission does not, however, make the obligation of proper and careful care of the cargo absolute in the United States or more stringent than in jurisdictions where the Rules themselves apply.(39)
VII. Burden of Proof
The burden of proof in relation to care of cargo is the same as in the case of stowage, and is initially on the claimant. Because most, if not all, of the evidence is available to the carrier, however, the burden of proof soon shifts to the carrier, once the claimant has made initial proof of improper care.(40)
VIII. Obligations When Receiving Cargo
1) Obligation to study cargo
The carrier must study cargo carefully before loading, in order to be able to care for it. This was stated in Drummond Coal Co. v. Interocean Shipping Co.:(41)
"The Carriage of Goods by Sea Act, 46 U.S.C. §1300 et seq., renders it mandatory for a shipowner to use all reasonable means to ascertain the characteristics of the goods tendered for shipment."
In Granite State Ins. Co. v. M/V La Pampa, it was held that:(42)
"While the bulk soybeans were aboard the LA PAMPA, it was the obligation of Buries Markes, Ltd. [the shipowner and manager] properly and carefully to handle, carry, keep, and care for the cargo. United States Carriage of Goods by Sea Act, 46 U.S.C. § 1303(2). It had the duty to exercise due care to ascertain and consider the nature and characteristics of the cargo, and it was 'under a continuing duty to protect' the goods, including 'an obligation to inspect' for deterioration which might occur because of delays or because of the inherent condition of the cargo."
The carrier, in studying cargo, must learn from the past and must employ modern methods and up-to-date practices. Roskill J. in The Flowergate(43)gave a warning to carriers of future shipments of cocoa:
"... I wish to make it clear that my decision in favour of the defendants on the facts of this case does not, and must not, be understood to involve that shipowners can in future safely and without financial risk to themselves continue to accept cocoa for shipment in West Africa for delivery in North-West Europe whatever its moisture content may be and then, if and when damage occurs, successfully set up the same defence as that which has succeeded in this case. This case has revealed much regarding the shipment and carriage by sea of cocoa which seems not to have been hitherto generally known among shipowners and their masters and officers and others immediately concerned with the day-to-day practical side of the problem. If in the future, and in the light of what is now known, shipowners continue to accept cocoa for shipment merely on the strength of its apparent condition, and heedless of the implications of what its pure condition may in fact be by reason of its moisture content, they may find it said against them hereafter that they have engaged themselves to carry that cocoa safely to destination, whatever that moisture content may ultimately prove to be."
The Cour de Cassation(44)held that in respect of lobster tails which were described by the shipper as "frozen", the carrier should have verified the actual condition of the cargo which in fact was "surgelés" (deep frozen) and therefore required being kept at -18º C. It therefore upheld the Courd'Appel de Douai,(45) which had declared that the carrier was a specialist who must enquire as to how the cargo should be carried, being alerted by the word "frozen" appearing on the bill of lading. The Cour d'Appel de Paris,(46) on the other hand, held that the carrier was not responsible for products which should have been carried at -18º C. ("surgelés"), when the goods were shipped as merely requiring "refrigerated stowage" and the tariff rate was for goods that were "congelés" (frozen) rather than "surgelés" (deep frozen).
2) Obligation to refuse cargo
A carrier is not obliged to accept cargo if he cannot give it proper stowage and care during the voyage. Rather he should refuse the cargo or advise the shipper that he cannot provide proper stowage and care. Thus in The Ensley City(47) it was stated:
"There is no absolute obligation on a vessel to accept a cargo. Indeed, it should not be accepted unless it can be given the type of stowage that its character requires, and the placing of conditions in a bill of lading does not relieve the vessel of the obligation to take appropriate care of the cargo."
More recently, in A. & D. Properties, Inc. v. M//V Volta River, it was similarly held that:(48) "A carrier is not obligated to load a cargo which, through no fault of the carrier, cannot be carried without danger to the vessel, her crew and her other cargo."
In other words, when the carrier cannot properly and carefully carry cargo which is presented to him for carriage, the carrier should either refuse the cargo or obtain the consent of the shipper to carry the goods under special terms and conditions. A non-responsibility clause in the bill of lading may be ineffectual, being contrary to art. 3(8), as may be the exculpatory exceptions of art. 4(2) such as inherent defect or insufficient packing because of disclosure of the particular nature of the cargo by the shipper.(49)
It is interesting to note that in cases where negligent cargo stowage has been held to compromise the safety of the ship, rendering the vessel unseaworthy, the courts have alluded to the carrier's obligation to refuse the cargo. In Waterman Steamship Corp. v. Virginia Chemicals, Inc.,(50) for example, where a cargo inflammable when mixed with water was stowed contrary to applicable U.S. Coast Guard regulations, thereby jeopardizing the vessel's safety, the Court stated that because:
"Waterman Steamship Corporation accepted a hazardous cargo of sodium hydrosulfite... having done so, 'it then accepted the obligations to carry [the cargo] to safety'. Verbeeck v. Black Diamond Steamship Corp. 269 F.2d 68 at 70, 1960 AMC 163 at 166 (2 Cir. 1959)."(51)
In A.R. Lantz Co., Inc. v. United Trans-Caribbean,(52) where the shipowner had failed to maintain the ship's refrigeration equipment in proper condition, making the vessel unseaworthy for the carriage of frozen shrimp, the Court followed the same principle and stated that "... the owner effectively created and continued the conditions resulting [in] the casualty", because despite the surveyor's findings, the carrier took charge of the cargo, decided to commence the voyage in question and did not transship the cargo as suggested.(53)
3) Instructions for special cargoes
We have seen that the carrier is obliged to study cargo; but the shipper has the reciprocal obligation to give special instructions for special cargoes (i.e. unusual shipments).(54) Thus, the Cour d'Appel de Paris(55) held that where tractor radiators, which contained water, froze and cracked, and there had been no special recommendation concerning the cargo, the carriers were not responsible.
American courts have not hesitated to apply this principle. In Tenneco Resins, Inc. v. Davy International, AG,(56) for example, where chemical catalyst was shipped in metal drums, the manufacturer of the catalyst neglected to stencil on the sides of the drums, in plain view and in accordance with industry practice, the international umbrella symbol indicating that the drums were not watertight. On most of the drums, the symbol was instead stenciled onto the lids of the drums, where it was invisible to the carrier after the drums were placed on pallets and stacked in tiers on flats and stackmasters prior to loading. Nor did the manufacturer instruct the carrier prior to loading as to the need to keep the drums dry. The Court exempted the carrier from liability for moisture damage to the catalyst, on the ground that the shipper had failed to meet its obligation to advise the carrier of any special requirements of the cargo.(57) The Court noted that: "This view places the burden of inspection and ascertainment of special stowage needs on the party most likely to know of or best equipped to discover such needs."(58)
The same principle and precedent were applied in Sun Co. Inc. v. S.S. Overseas Arctic,(59) a case involving a charterparty governed by U.S. COGSA. High-temperature fuel oil, which solidifies or congeals at high temperatures and often requires heat to remain in a liquid state, was loaded by the charterer, contrary to the industry standard,(60) at an average temperature below its "pour point" (the temperature at which the oil begins to solidify, so that it can no longer be poured). Although the vessel's master informed the charterer of the loading temperature of the oil before the ship departed the load port, the shipper did not inform the carrier of the cargo's pour point nor instruct it to increase the temperature. Moreover, during the voyage, the master complied with his obligation under the charterparty to maintain, but not to increase, the loading temperature of the oil. The Fifth Circuit dismissed the charterer's argument that the carrier had an obligation, under sect. 3(2) of COGSA, to know the special characteristics and heating requirements of the cargo, holding:(61)
"... this Circuit has rejected the argument that carriers have a legal duty to learn the special needs of their cargo. Tenneco Resins, Inc., 1990 AMC at 406, 881 F.2d at 214. To the contrary, we have ruled that the charterer 'has an obligation to inform the carrier of the cargo's special requirements.' Id. (emphasis added). We have determined that this view properly places the burden to discern cargo's special stowage needs upon the party which will most likely know or have access to knowledge of such needs. Id. (quoting O'Connell Machinery Co. v. M/V Americana, 1986 AMC 2822, 2827, 797 F.2d 1130, 1134 (2 Cir. 1986))."
The carrier was therefore exculpated from liability for the loss, attributable to the act or omission of the shipper.
In Cigna Insurance Co. of Puerto Rico v. M/V Skanderborg,(62) the carrier was not responsible where tins of olive oil were ruined by rust as a result of being packed by the shipper in unventilated containers provided by the carrier, where the inadequacy of the packing was non-apparent to the carrier and the shipper had given no special instructions as to the type of containers needed.(63)
Special shipping instructions are not necessary if the care required by certain commodities is well known in the trade, as in the case of liquid tallow.(64)
Once a carrier receives special instructions, he must follow those instructions, or negotiate new terms and conditions, or refuse the goods. Otherwise, he will be responsible for the consequences.(65) In Transatlantic Marine Claims Agency, Inc. v. S.S. Zyrardow,(66) for example, the carrier was found liable for the deterioration of a cargo of bananas where it had failed to heed the charterer's instructions calling for the ventilation of the storage holds sixty hours after the closing of the compartments, in order to rid the compartments of high levels of carbon dioxide and ethylene, which accelerate the ripening process.
IX. Lack of Due Diligence, Improper Care of Cargo and Exculpatory Exceptions
The courts, in the final analysis, must decide whether the cargo loss or damage results from: a) a lack of due diligence to make the vessel seaworthy; b) improper care of the cargo or c) one of the exculpatory exceptions protecting the carrier.
In Royal Ins. Co. of America v. S/S Robert E. Lee,(67) the Court had to consider all three of those issues, in a claim resulting from the puncturing of a LASH barge carrying bags of wheat flour, causing the wetting of most of the bags. The Court found that the carrier had exercised due diligence to make the barge seaworthy at the beginning of the voyage, but had failed to keep and care properly for the cargo, in permittting the barge to be moored at an unsafe pier prior to its towage to the carrying ship, where there was a danger of its being punctured. The defence of error of navigation was dismissed, the carrier having failed to discharge its burden of proving that the barge had been holed while it was being towed to the carrying ship and that an error of navigation had caused the holing.
If the vessel is not properly equipped to handle the cargo, the courts are likely to find that the vessel is unseaworthy and that there has been a lack of due diligence to equip the ship properly before and at the commencement of the voyage. In A.R. Lantz Co, Inc. v. United Trans-Caribbean,(68) the Court found that the vessel was unseaworthy to carry frozen shrimp, because it was missing the necessary spare parts to maintain the refrigeration unit and one generator was inoperative, making the "vessel's refrigeration system unsuitable before the vessel broke ground."(69) In making this decision, the Court followed the finding of the Second Circuit in Atlantic Banana Co. v. M/V Calanca,(70) which found that improper maintenance and the inoperative refrigeration equipment made the vessel unseaworthy.
A similar example is the case of Associated Metals v. Olympic Mentor,(71) where water-sensitive steel coils were damaged by sweat due to lack of proper ventilation. The Court held that the shipowner's failure to provide equipment to monitor the temperature and relative humidity in the holds of the ship was a lack of due diligence on the part of the carrier, which rendered the vessel unseaworthy to carry a steel coil cargo. As a result, the ship was unable to properly care for goods of that type. In addition, the vessel relied on natural ventilation that was inadequate for the type of cargo concerned and lacked fans or mechanical ventilating devices to prevent sweating.(72)
It appears that if the cargo is negligently stowed, to the point of compromising the safety of the vessel or other cargo, the court will find the vessel unseaworthy, as illustrated by the finding in Waterman Steamship Corp. v. Virginia Chemicals, Inc.(73) In that case, the negligent stowage of the hazardous cargo, which was flammable when mixed with water, caused a fire. The negligent stowage prevented early discovery of the fire, as well as preventative safety measures and easy disposal of the cargo once ignited. The Court found that stowing the hazardous cargo of sodium hydrosulfite in a lower hold and then walling in the cargo with palletized tape "...[was] negligent and rendered the vessel unseaworthy."(74)
Courts also strive to distinguish cases where the loss or damage results from lack of proper care of the cargo from those where the effective cause of the harm is one of the exculpatory exceptions of art. 4(2)(a) to (q) of the Hague or Hague/Visby Rules.
In Banana Services Inc. v. M/S Tasman Star,(75) for example, a fruit cargo was damaged when a fire on board disabled the ship's refrigeration control panel, making it impossible to refrigerate the fruit properly. The Court found that the real cause of the loss was the fire, which, although it did not directly ignite the cargo, nevertheless validly exculpated the carrier from liability under the fire exception of sect. 4(2)(b) of U.S. COGSA(76) and the U.S. Fire Statute.(77)
Conversely, in Ins. Co. of N. America v. M/V Frio,(78) involving thaw damage to a cargo of frozen orange juice concentrate, the carrier failed to establish either the defence of insufficient packaging or the exception of inherent defect of the goods, and was held liable because it had not rebutted the presumption resulting from the plaintiff's proof that the concentrate had been loaded in good condition and was discharged damaged.
The Belgian Cour de Cassation(79) has held that the failure to perform, or to perform correctly, acts aimed principally at safeguarding the cargo does not constitute an error of navigation or management of the ship under the Belgian Maritime Law (Belgium's enactment of the Hague/Visby Rules).
When the loss is due to both a validly excepted cause and lack of proper care, the carrier is responsible, unless he can separate the loss resulting from each cause. This was clearly stated by the U.S. Supreme Court in The Vallescura:(80)
"... the carrier must bear the entire loss where it appears that the injury to cargo is due either to sea peril or negligent stowage, or both, and he fails to show what damage is attributable to sea peril."
If the carrier can separate the losses, then he is responsible only for the loss caused by his improper care. This has been described as a "difficult task".(81)
In Lekas & Drivas v. Basil Goulandris,(82)a cargo of cheese was shipped on a vessel which met with an excepted peril (restraint of princes). This delayed the voyage and the cheese spoiled. The claimant tried to prove that the spoilage arose because of improper care of the cargo, arguing that the cheese should have been sold or refrigerated at an intermediate port where the vessel was delayed. The Second Circuit exculpated the carrier stating:
"To hold that when a carrier has shown that the loss arose as a consequence of a restraint of princes, sect. 4(2)(g), it still has the burden of negating any other fault or neglect of its agents or servants would be to read the qualification of (q) into (a)-(p), although Congress did not put it there. It follows that libellant had the burden of showing circumstances from which a trier of the facts could properly conclude that the master's failure to dispose of the cheese at Aden was a breach of sect. 3(2). Had libellant done this, we would have a parallel to Schnell v. Vallescura, with one cause proved to be excepted and the other not, and the teaching of that case, which we assume to be applicable to COGSA in this respect, would then place upon respondents the burden of showing how much of the damages came from the excepted as distinguished from the unexcepted cause. However, libellant did not sustain the burden required to bring it to that stage."
A peril or a restraint of princes or a reasonable deviation does not, of course, absolve the carrier from care of cargo. A carrier was justified in deviating to Malta in order to discharge cargo because his ship had been requisitioned for the Falklands War. Nevertheless he was held responsible for failing to care for the cargo in Malta.(83)
In The Oakhill (Eisenerz v. Federal Commerce),(84) a ship went aground due to an error in navigation. The cargo of different grades of pig iron was negligently mixed and damaged when removed at an intermediary port, in order to repair the ship. The carrier was held liable. The Court pointed out that the loss was directly due to a lack of care of cargo and not to an error in navigation.
Similarly, in Granite State Ins. Co. v. M/V La Pampa,(85) where the claimant proved that the carrier had failed to take all reasonable and necessary measures to prevent sweat damage to a cargo of soybeans, and to ventilate the hold in question, the carrier was held liable for the entire loss under the Vallescura Rule, because, despite some evidence that the soybeans had a higher than normal moisture content upon loading, the carrier "...has not met the burden of showing what part, if any, of the damage is attributable to such a condition."
On the other hand, in Trade Arbed, Inc. v. M/V Swallow,(86) where the claimant proved that salt water corrosion damaged a steel cargo, the carrier was able to show that some of the cargo had not been damaged. The Court rejected the carrier's defence that all of the damage had been caused by an unexplained "selective attack" of salt water on the damaged cargo, but, citing the Vallescura Rule, held that:(87)
"...the proof offered by the defendants to demonstrate the selective nature of the attack satisfies the defendants' burden of segregating the portion of the loss caused by their negligence or breach of duty and the portion caused by something for which the carrier is not responsible."
X. Obligation to Sell Cargo
It is possible that under certain circumstances, a carrier may be obliged to land and sell cargo to prevent it from deteriorating. In Lekas & Drivas v. Basil Goulandris,(88) itwas held that:
"... circumstances may arise when the master of a ship has not merely the authority but, under sect. 3(2) of COGSA, the duty to sell cargo that is at risk of further deterioration, communicating with the owner if that is feasible, but still having both the authority and duty if it is not."
XI. Examples of Proper and Improper Care
1) In general
The following are useful general considerations pertinent to, and particular examples of, the obligation to "properly and carefully ... carry, keep, care for ... the goods carried":
Vimar Seguros Y Reaseguros v. M/V Sky Reefer:(89) The "properly and carefully" obligation was characterized by the U.S. Supreme Court as one of several "substantive obligations and particular procedures that §3(8) [of U.S. COGSA] prohibits a carrier from altering to its advantage in a bill of lading."
Cross Equipment, Ltd. v. Hundai Merchant Marine (America) Inc.:(90) COGSA sect. 3(8) does not invalidate a bill of lading clause permitting the carrier to repair the cargo while it is in the carrier's custody, in order to be able to discharge it "properly and carefully," as required by sect. 3(2).
Ace Bag & Burlap Co., Inc. v. Sea-Land Service, Inc.:(91) The duty of care of cargo under U.S. COGSA applies only from the loading of the goods until the cargo is released from the ship's tackle, with the Harter Act applying to the period after discharge; nevertheless, COGSA's application may be extended from discharge through delivery by the bill of lading.
Majestic Electronics, Inc. v. M/V Jin He:(92) Where a carrier loses the goods, or negligently fails to protect them from theft, the carrier may have failed to meet its duty of care under COGSA.
Orient Merchant-Olau Gorm:(93)The vessel ignored warnings of ice in the St. Lawrence River and then unjustifiably abandoned the voyage when locked in the Great Lakes during the winter. The Court held that while thus detained, the carrier had the duty to care for the cargo by the least expensive reasonable method and could not charge for storage on board.
2) Freeze damage
In Pueblo International, Inc. v. Puerto Rico Marine Management, Inc.,(94) the shipper had requested the carrier to maintain its cargo of apples and pears at 34º Fahrenheit during transit in reefer containers. The bill of lading provided for a permissible margin of error of plus or minus 5º Fahrenheit. Because the shipper knew or should have known that apples and pears suffer injury at temperatures below 29.3º F. and 29.2º F. respectively, it had exposed the fruit to a serious risk of freeze damage by specifying a carrying temperature of 34º F., in view of the 5º F. margin of error. The temperature inside the reefer units had never fluctuated above or below the 5º variance permitted, nor was there any malfunction in the refrigeration system. The carrier thus established that the freeze damage resulted from the act of the shipper (COGSA, sect. 4(2)(i)(95)), rather than from any improper care of the cargo on its part.(96)
In Hershey Foods Corp. v. Waterman Steamship Corp.,(97) a cargo of peanuts was contaminated by aflatoxin when delivered to the consignee. Although the carrier had exposed the cargo to heat caused by direct sunlight and had not properly ventilated it during the voyage (conditions conducive to the growth of the mold which causes aflatoxin), the Court held that the shipper had failed to prove its prima facie case that the peanuts were free of aflatoxin when delivered to the carrier, because the testing methods employed at loading were outdated and the sample used was inadequate. Nor was there proof that the peanuts had taken any harm while being transported to the carrying ship aboard the defendant's barges.(98)
4) Fire damage
Waterman Steamship Corp. v. Virginia Chemicals, Inc.:(101). The carrier could not invoke the exemption of U.S. COGSA sect. 4(2)(b) in respect of a shipboard fire, because its stowage, contrary to applicable Coast Guard regulations, of a cargo of sodium hydrosulfite, which becomes inflammable when mixed with water, proximately caused the fire, thus constituting "actual fault or privity" on the part of the defendant's managing officers and agents.
5) Water or moisture damage
Arrondissementsrechtbank Rotterdam:(102) The vessel owner is responsible for damage to a cargo of sugar because it used securing planks which exuded moisture, to which sugar is vulnerable.
In ETS Gustave Brunet, S.A. v. M.V. Nedlloyd Rosario,(103) lace-making machines packed in open-top containers and carried on deck sustained corrosion damage due to exposure to salt water during a stormy North Atlantic crossing from the United States to France. The carrier was held liable, on the ground that deck carriage constituted an "unreasonable deviation".(104) In addition, the Court, dismissing the defence of insufficiency of packing,(105) found that the carrier had violated sect. 3(2) of COGSA(106) by its improper care of the cargo, in particular by: a) using tarpaulins that did not fully cover the containers; b) stowing the containers on deck facing the wind; c) not attempting to repair ripped tarpaulins during the voyage when the weather permitted; and d) failing to carry extra tarpaulins aboard the vessel.(107)
7) Lack of ventilation
In All American Trading Corp. v. S/S New York Maru,(108) a cargo of nails arrived in damaged condition as a result of sweat damage, caused by improper ventilation. The court held that the carrier could have foreseen the resulting condensation and did not take proper care of the cargo by putting the nails in a container which lacked adequate ventilation, when a container offering adequate ventilation was available, albeit at greater expense.
The Starsin:(109) "In truth, the breach of duty of care consists... in exposing goods in the shipowner's possession to the risk of damage by carrying them in holds which have been rendered unfit for the cargo by lack of dunnage, lack of ventilation and by the presence of cargo likely to create condensation."
In Insurance Co. of N. America v. M/V Frio Brazil,(110) the carrier failed to maintain the reefer unit containing pallets of orange juice concentrate at the required cool temperature and stowed it beside drums of warmer concentrate, resulting in a heat transfer between the drums and the pallets. The resulting deterioration of the orange juice concentrate rendered the carrier liable.
XII. The Domestic Law of France
The Decree of December 31, 1966, at art. 38, has a provision similar to art. 3(2) of the Hague Rules, which reads:
"Notwithstanding all clauses to the contrary, the carrier will proceed in a proper and careful way with the loading, handling, stowage, transport, care and unloading of the cargo. The carrier owes the cargo the standard of care conforming to the agreement between the parties or the convention used by the port of loading." (Translation)
This article is seen to be the equivalent of art. 3(2) of the Hague/Visby Rules. The carrier's obligation is to transport the cargo in such a way that it arrives at its destination in the same state as it was delivered to the carrier.(111) It has been interpreted to mean that the crew must take all customary steps, including such measures as ventilation, care of refrigeration equipment, closing the hatches in a storm, to ensure that the cargo does not sustain damage.(112) French authors also consider that part of the carrier's duty to care for the cargo could include making arrangements for its transshipment should the vessel become unseaworthy, as prescribed by art. 40 of the Decree of December 31, 1966.(113). If the cargo does not arrive at its destination in the same condition, then the carrier is held liable and the lack of care of the cargo is considered a commercial fault, unless the carrier falls under the exculpatory provisions of the last paragraph of art. 27 of the Law of June 18, 1966, which reads:
"The shipper or his legal representative will however in all cases, be entitled to show that the loss or damage is due in whole or in part to a fault of the carrier or his servants, other than a fault prescribed hereinabove in sub-paragraph b)." (i.e. error in navigation) (Translation)
The French catch-all paragraph, coming as the last paragraph of art. 27, which lists the exculpatory exceptions, is in some ways in a more logical position than art. 3(2) of the Hague and Hague/Visby Rules, which comes before the exceptions of art. 4(2) and therefore must be preceded by the words: "Subject to the provisions of Article 4 .... ". Art. 27 last paragraph also makes it clear that claimant has the burden of proof.
A study of the jurisprudence in France shows no marked difference, however, as between care of the cargo under the domestic Law of June 18, 1966 and the Hague and Hague/Visby Rules. In every case, the carrier must exercise a high degree of care of the cargo and the claimant must prove the fault of the carrier or his representatives in law. It should be added that France has a tradition of demanding a high degree of "care" from carriers, although the second paragraph of art. 38 of the Decree of December 31, 1966 is not severe and reads: "It (the carrier) must afford the goods reasonable care in accordance with the agreement between the parties or the practices at the port of loading."(Translation)
For example, the Cour d'Appel d'Aix(114)held a carrier responsible for imposing the use of its pallets on the shipper, which pallets were made of new humid wood, resulting in damage to a cargo of bagged flour. The carrier could not invoke any of the exceptions under art. 27.
The Cour d'Appel de Rouen(115) held a carrier responsible for damage caused by excessive moisture to a cargo of coffee, partly because there was no convincing proof that the humidity in the containers was excessive before departure, and partly because the carrier had possession of the containers for 168 days before delivery, for a voyage that should have taken no more than thirty days.
The Cour d'Appel de Rouen(116) also held a carrier responsible for thaw damage to a cargo of frozen raspberries, because they were not kept at the contracted temperature throughout the voyage. In this case, the Court made it very clear that substantial proof must be presented in order to invoke the exception of act of the shipper under art. 27(g) of Law No. 66-420 of June 18, 1966. In this case, a graph showing the internal temperature of the container throughout the voyage was not sufficient proof that the raspberries were not properly frozen at loading.
The Cour d'Appel de Nouméa(117) held that the carrier was responsible for the loss of cargo which fell into the ocean because the lashings holding cargo to the deck broke during the voyage. The Court held that the carrier should have foreseen such an event, given the master's admitted knowledge of the turbulent sea conditions on the route customarily followed by the ship and of the resulting likelihood that the natural movements of the platform below the cargo would be accentuated, entailing a risk of its toppling overboard in view of its weight. Thus, the carrier should have taken better care of the cargo, stowing it below deck.
It is also interesting to note that while clauses in bills of lading exempting the carrier from liability due to the late arrival of the cargo (e.g. loss of market) are valid, such clauses do not exempt the carrier from liability where the damage to the cargo itself results directly from the tardiness. Thus the Cour d'Appel de Versailles(118) held that the carrier was responsible for the over-ripeness of a cargo of fruit caused by its late delivery, where the fruit was loaded nine days later than the carrier had promised and on a different vessel.
One difference between the law of France and the Hague/Visby Rules is how the courts treat the intersection of exculpatory exceptions and improper care. Unlike the Hague/Visby Rules, where the carrier is held totally responsible for the damage unless the damage caused by improper care can be separated from the damage falling under one of the exculpatory exceptions, the rule in France is that reparation for damage is proportional to the causal nature of each element concerned.(119) For example, the Cour de Cassation(120) held that the carrier had to indemnify for partial damage to a printing press which had a latent defect that was aggravated by the conditions of the carriage.
XIII. The Hamburg Rules
The Hamburg Rules have no particular provision similar to art. 3(2) of the Hague and Hague/Visby Rules. Rather art. 5(l) of the Hamburg Rules encompasses the obligations in art. 3(2) when it states:
"The carrier is liable for loss... unless the carrier proves that he, his servants or agents took all measures that could reasonably be required to avoid the occurrence and its consequences."
This may, however, be a slightly lighter degree of care than "properly and carefully" of art. 3(2) of the Hague and Hague/Visby Rules.
"Teach us to care and not to care"
T.S. Eliot, "Ash-Wednesday" (1930)
Proper care of cargo under art. 3(2) of the Hague and Hague/Visby Rules is often treated perfunctorily in writings on carriage of goods by sea law and by the courts, yet it remains part of the essential matrix of the whole transport regime. As such, it deserves more attention than it typically receives. To keep, carry and care for the goods properly and carefully is perhaps the most basic of all the obligations which the carrier and the ship owe to cargo during the "tackle-to-tackle" period. Unfortunately, the duty is often breached, either by the carrier itself or by its servants or agents (the master or crew), usually by negligence in ensuring that proper measures are taken to protect the goods while they are aboard the vessel from dangers, some of the most common of which are heat, freezing, moisture, rust, thawing, fire and lack of ventilation.
Art. 3(2) is also frequently misunderstood as entailing only a "due diligence" requirement, whereas, in fact, compliance with the provision obliges the carrier to act "properly and carefully", a standard only slightly less exacting that the "insurer's" duty of the common carrier, and one necessitating "a sound system", strict observance of contemporary industry practices in handling the particular cargo concerned, as well as regard for any special instructions received from the shipper.
Like the obligation of due diligence to make the ship seaworthy before and at the commencement of the voyage under art. 3(1), care of the cargo under art. 3(2) is rightly considered a "personal" obligation of the carrier. In consequence, the carrier should not be able to escape liability for loss or damage to the goods resulting from improper care by relying on the negligent advice or actions of independent contractors, however reputable they may be, or by shifting the responsibility for loading, stowing and discharging the goods to shippers or consignees by contract.
Finally, in practice, deciding whether the carrier has properly and carefully kept, carried and cared for the goods within the meaning of art. 3(2) of the Rules cannot greally be done in isolation, without also having regard to the carrier's due diligence obligation in respect of seaworthiness under art. 3(1) and its exculpatory exceptions under art. 4(2)(a) to (q). These three key elements of the Hague and Hague/Visby regimes are interrelated concepts, which judges and arbitrators must often consider as a troika in resolving cargo claims, in much the same way in which a juggler must keep three balls in the air at all times in perfoming his routine.
Professor of Law, McGill University; Distinguished Visiting Professor of Maritime and Commercial Law, Tulane University; Counsel to Langlois Kronström Desjardins of Montreal. The author acknowledges with thanks the assistance of Robert C. Wilkins, B.A., B.C.L., in the preparation and correction of this article.
Story on Bailment, 8 Ed., Boston, 1870, para. 457, at p. 396.
A shipowner, when acting as a common law bailee for reward, is also liable for the damage to the cargo caused by the negligence of a sub-contractor's employees: B.R.S. Ltd. v. Arthur V. Crutchley Ltd.  1 Lloyd's Rep. 271 at p. 289 (C.A.); The Arawa  2 Lloyd's Rep. 416 at p. 424 (per Brandon J.).
N.E. Palmer, Bailment, 2 Ed., 1991 at p. 49: "When goods are injured or lost while in the possession of a bailee ... the bailee must prove either that he took the appropriate care of them or that his failure to do so did not contribute to the loss." As to the standard of proof to be attained by a negligent bailee who desires to establish that his negligence did not cause the loss, the issue was discussed, but not decided, by Sachs LJ. in B.R.S. Ltd. v. Arthur V. Crutchley, Ltd.  1 Lloyd's Rep. 271 at p. 289 (C.A.) See also Travers & Sons Ltd. v. Cooper  1 K.B. 73 (C.A.). See also W. Tetley, "Tug and Tow (A Comparative Study - Common Law/Civil Law) - U.S., U.K., Canada and France" Il Diritto Marittimo 1991, 893 at p. 901.; Scrutton on Charterparties and Bills of Lading, 20 Ed., 1996, art. 105 at p. 200 [hereinafter cited as "Scrutton, 20 Ed., 1996"] and decisions cited there.
Story, supra, para. 495, at pp. 440-41; Palmer, supra, at pp. 975-976.
Coggs v. Bernard (1703) 2 Ld. Raym. 909 at p. 918, 92 E.R. 107 at p. 112; Morse v. Slue (1671) 1 Ventris 198, at p. 238, 86 E.R. 129, at p. 159; Rutter v. Palmer  2 K.B. 87 at p. 90 (C.A.); Canadian Pacific Forest Products Ltd., Tahsis Pacific Region v. Belships (Far East) Shipping (Pte.) Ltd. 1996 AMC 2168 at p.2180 (Fed. C. Can.), upheld (1999) AMC 2606,  ETL 93 (Fed. C.A.). See also Palmer, supra, at p. 976; W. Tetley, ibid., at p. 899; Wilson, Carriage by Sea, 2 Ed., 1993 at pp. 249-252; Scrutton, 20 Ed., 1996, art. 105 at p. 200.
Nugent v. Smith (1876) 1 C.P.D. 19 at pp. 26, 29-30, and 33 (per Brett J.).
Palmer, 2 Ed., 1991 at pp. 976-979; Scrutton, 20 Ed., 1996, art. 105 at p. 200. See also Nugent v. Smith, ibid., at p. 33, where Brett J. said: "We are, of opinion that the true rule, is that every ship-owner or master who carries goods on board his vessel for hire, is, in the absence of express stipulation to the contrary, subject, by implication, by the common law of England:... by reason of his acceptance of the goods to be carried, to the liability of an insurer, except as against the act of God, or the Queen's enemies."
See W. Tetley, Marine Cargo Claims, 3 Ed., 1988, Chap. 8: "Who May Claim or Sue?" [hereinafter cited as "Tetley, MCC III, 1988"].
St. Paul's Fire & Marine Ins. Co. v. Marine Transportation Services Sea-Barge Group, Inc. 727 F. Supp. 1438 at p. 1442; Sail America Foundation v. M/V T.S. Prosperity 778 F. Supp. 1282 at p. 1285, 1992 AMC 1617 at p. 1621 (S.D. N.Y. 1991); Polo Ralph Lauren, L.P. v. Tropical Shipping & Construction Co., Ltd. 215 F.3d 1217 at p. 1220, 2000 AMC 2129 at p. 2131 (11 Cir. 2000).
Bailment claims have been permitted in some cases, however, on grounds of equity, where the defendant was not a "carrier" within the meaning of COGSA. See Tuscaloosa Steel Corp. v. M/V Naimo 1993 AMC 622 at p. 626-627 (S.D. N.Y. 1992), where a claim in bailment was allowed against a shipowner and head charterer who were not bound by the bills of lading issued by the agent of the time sub-charterer outside the scope of its authority, the bills not being in conformity with the mate's receipts). See also DB-Trade International, Inc. v. Astramar 1988 AMC 766 at p. 767 (N.D. Ill. 1987).
Texport Oil Co. v. M/V Amolyntos 11 F.3d 361 at p. 367, 1994 AMC 815 at p. 823 (2 Cir. 1993), rev'd on other grounds by Wilton v. Seven Falls Co. 515 U.S. 277 (1995); Associated Metals & Minerals Corp. v. M.V Alexander's Unity 41 F.3d 1007 at p. 1017, 1995 AMC 1006 at p. 1022 (5 Cir. 1995); Polo Ralph Lauren L.P. v. Tropical Shipping & Construction Co., Ltd., supra, 215 F.3d at p. 1221, 2000 AMC at p. 2132.
Tetley, MCC III, Chap. 14: "The Cause of the Loss or Damage".
Ibid., Chap. 15: "Due Diligence to Make the Vessel Seaworthy".
Ibid., Chap. 6: "The Burden and Order of Proof".
1962 AMC 2651 at p. 2653 (Cal. Mun. Ct. 1962).
68 F. Supp. 759,1946 AMC 1252 (E.D. Pa. 1946).
47 F. Supp. 877,1942 AMC 1407 (E.D. N.Y. 1942).
See Tetley, MCC III, 1988, footnote 3 of the Introduction to Chap. 14: "The Cause of the Loss or Damage", where the Vermont is analysed. See also the decisions contrary to the Vermont in footnotes 2, 4, 5, 6, 7 and 8 of the same Introduction. See in particular SoconyMobil v. Tex. Coast & Int'l 559 F.2d 1008 at p. 1013, 1977 AMC 2598 at p. 2605 (5 Cir. 1977); Mimi Lim. Procs. 604 F.2d 254 at p. 262, 1979 AMC 1680 at p. 1690 (4 Cir. 1979); C. Itoh & Co. (America), Inc. v. M/V Hans Leonhardt 719 F. Supp. 479 at pp. 505-506, 1990 AMC 733 at pp. 745-746 (E.D. La. 1989), (a Harter Act decision). For Canada, see Cargill Grain Co. Ltd. v. N.M. Paterson & Sons  Ex. C.R. 22 at p. 33; Kruger Inc. v. Baltic Shipping Co. (1989) 57 D.L.R. (4th) 498 at p. 502 (Fed. C.A); Wirth Ltd. v. Belcan N.V. (1996) 112 F.T.R. 81 at p. 97 (Fed. C. Can.). For the U.K., see Gosse Millerd, Ltd. v. Canadian Govt Merchant Marine Ltd,  2 K.B. 432 at p. 437, (1927) 28 Ll. L. Rep. 88 at p. 104; Levison v. Patent Steam Carpet Cleaning Co. Ltd.  Q.B. 69 at p. 82,  3 All E.R. 498 at p. 505 (C.A. per Lord Denning M.R.).
See, for example, General Foods Corp. v. S.S. Troubador 98 F. Supp. 207 at p. 210, 1951 AMC 662 at p. 664 (S.D. N.Y. 1951), relying on American Tobacco Co. v. S.S. Katingo Hadjipatera 81 F. Supp. 438 at p. 445, 1949 AMC 49 at p. 57 (S.D. N.Y. 1948), which in turn cites The Shickshinny 45 F. Supp. 813, 1942 AMC 910 (S.D. Ga. 1942). The latter decision (F. Supp. at p. 817, AMC at p. 915) does not refer to due diligence in the care of cargo, but rather merely requires the carrier to prove one of the exculpatory exceptions of art. 4(2)(a) to (q), and, in the case of the (q) exception, to prove some other cause as well as lack of fault on its own part and on the part of its servants or agents.
Quaker Oats Co. v. M/V Torvanger 734 F.2d 238 at p. 240, 1984 AMC 2943 at p. 2945 (5 Cir. 1984), cert. denied 469 U.S. 1189, 1985 AMC 2398 (1985); Tenneco Resins, Inc. v. Davy International, AG 881 F.2d 211 at p. 213, 1990 AMC 402 at p. 405 (5 Cir. 1989), Sun Co. Inc. v. S.S. Overseas Arctic 27 F.3d 1104 at p. 1109, 1995 AMC 57 at p. 62 (5 Cir. 1994): "Once the charterer presents its prima facie case, the burden shifts to the carrier to prove either that it exercised due diligence in preventing the loss of the cargo or to prove that the loss was caused by one of the exceptions set out in §1304(2) of COGSA."; Tubacex Inc. v. M/V Risan 45 F.3d 951 at p. 954, 1995 AMC 1305 at p. 1308 (5 Cir. 1995). See also Banana Services, Inc. v. M/V Fleetwave 911 F.2d 519 at p. 521, 1991 AMC 439 at p. 442 (11 Cir. 1990); Royal Ins. Co. of America v. S/S Robert E. Lee 756 F. Supp. 757 at p., 762, 1991 AMC 1750 at p. 1756 (S.D. N.Y. 1991). For a similar view in the United Kingdom, see The Sea Maas  2 Lloyd's Rep. 281 at p. 284.
Garner Industries v. Wallenius Lines and Gulf Motorships 1989 AMC 2688 at p. 2694 (Tex. Ct. of Apps.1988).
 2 Lloyd's Rep. 218 at p. 236.
 A.C. 807 at p. 856,  1 Lloyd's Rep. 57 at p. 76 (H.L.).
 1 Lloyd's Rep. 450 at p. 457. See also Scrutton, 20 Ed., 1996 at p. 431.
"FIO" ("free in and out") or "FILO" ("free in liner out") or "FIOS" ("free in and out, stowed") or "FIOST" ("free in and out stowed and trimmed"). These terms, which really derive from chartering, but are sometimes included in bills of lading, transfer to the shipper or consignee the carrier's ordinary responsibility for paying for and controlling either loading and discharge ("FIO"), loading only ("FILO"), loading, stowage and discharge ("FIOS") or loading, stowage, trimming and discharge ("FIOST").
Pyrene Co. Ltd. v. Scindia Navigation Co. Ltd.  2 Q.B. 402 at pp. 417-418,  1 Lloyd's Rep. 321 at pp. 328-329; G.H. Renton & Co. Ltd. v. Palmyra Trading Corp. of Panama  A.C. 149 at pp. 169-170 and 174,  2 Lloyd's Rep. 379 at pp. 390-391 and 393 (H.L.); Ismail v. Polish Ocean Lines  1 Q.B. 893 at p. 900,  1 Lloyd's Rep. 489 at p. 493 (C.A.); Scrutton, 20 Ed., 1996 at p. 431. The parties may also validly agree that the goods shall be discharged at the port of loading. See G.H. Renton & Co. Ltd., supra.
See in particular Nichimen Co. v. M/V Farland and A/S Virgo 462 F.2d 319 at p. 330, 1972 AMC 1573, at p. 1587 (2 Cir. 1972); Demsey & Assocs., Inc. v. S.S. Sea Star 461 F.2d 1009 at pp. 1014-1015 and 1018-1019, 1972 AMC 1440 at pp. 1446-1447 and 1453 (2 Cir. 1972); Associated Metals & Minerals v. M/V Arktis Sky 978 F.2d 47 at p. 50, 1993 AMC 509 at p. 513 (2 Cir. 1992); Tubacex, Inc. v. M/V Risan 45 F.3d 951 at p. 956, 1995 AMC 1305 at p. 1310 (5 Cir. 1995); Sogem-Afrimet, Inc. v. M/V Ikan Selayang 951 F. Supp. 429 at p. 442, 1998 AMC 1366 at p. 1384 (S.D. N.Y. 1996). See also Tetley, MCC III, Chap. 24: "Properly and Carefully Load".
46 U.S.C. Appx. 1303(2).
Great American Ins. Cos. v. M/V Romeral 1999 AMC 2542 at p. 2547 (E.D. La. 1998), citing Westinghouse Electric Corp. v. M/V Leslie Lykes 734 F.2d 199 at p. 209, 1985 AMC 247 at p. 261 (5 Cir. 1984); Agrico Chemical Co. v. SS Atlantic Forest 459 F. Supp. 638 at p. 647, 1979 AMC 801 at p. 812 (E.D. La. 1978), aff'd 620 F.2d 487, 1982 AMC 3000 (5 Cir. 1980).
 2 Lloyd's Rep. 53 at p. 64 (H.L.). See also Silversandal (Bache v. Silver Line Inc.) 110F.2d 60, 1940 AMC 731 (2 Cir. 1940).
Ibid., at p. 58. See also Chris Foodstuffs Ltd. v. Nigerian National Shipping Line  1 Lloyd's Rep. 293 at p. 297 (C.A.). See also Scrutton, 20 Ed., 1996 at p. 430.
See, for example, Shipping Corporation of India Ltd. v. Gamlen Chemical Co. Australasia Pty. Ltd.  147 C.L.R. 142 at p. 163 (High C. of Aust.); Great China Metal Industries v. Malaysian International Shipping Corporation Berhad (The Bunga Seroja) (1998) 158 A.L.R. 1 at p. 43, 1999 AMC 427 at p. 484,  1 Lloyd's Rep. 512 at p. 537 (High C. of Aust.).
U.N./FAW World Food Programme v. M/V Tay 138 F.3d 197 at p. 200,1998 AMC 2729 at p. 2732 (5 Cir. 1998): "One of the broad obligations imposed upon the carrier by COGSA is to 'properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried.' 46 U.S.C. app. §1303(2). But as §1304 makes clear, this duty is not absolute; §1304 provides a number of exceptions to the above rule."
See generally, Tetley, MCC III, Chap. 24: "Properly and Carefully Load".
Tenneco Resins, Inc. v. Davy International, AG 881 F.2d 211 at pp. 213-214, 1990 AMC 402 at p. 406 (5 Cir. 1989); Sun Co. Inc. v. S.S. Overseas Arctic 27 F.3d 1104 at p. 1110 note 11, 1995 AMC 57 at p. 64 note 11 (5 Cir. 1994).
G.H. Renton & Co. Ltd. v. Palmyra Trading Corp. of Panama  A.C. 149 at p. 166,  2 Lloyd's 379 at p. 388 (H.L.): "The appellants argued that under article III, rule 2, the respondents were obliged, inter alia,properly to carry, and discharge the goods carried. The appellants submitted that this involved discharging at a 'proper' port and that Hamburg was not such a port. The natural and ordinary meaning of 'properly' in antithesis to 'carefully' in the phrase 'properly and carefully load, handle, stow, carry, keep, care for and discharge' is in accordance with a sound system. It has not a geographical significance."
46 U.S.C. Appx. 1303(2).
See Scrutton, 20 Ed., 1996 at p. 534, note 9. See also decisions such as Tubacex, Inc. v. M/V Risan 45 F.3d 951 at p. 956, 1995 AMC 1305 at p. 1310 (5 Cir. 1995), holding that, even in respect of "non-delegable" duties set out in sect. 3(2) of COGSA (46 U.S.C. Appx. 1303(2)), defences such as an "act or omission of the shipper or owner of the goods, his agent or representative" in sect. 4(2)(i) (46 U.S.C. Appx. 1304(2)(i)) and "any other cause without the fault or privity of the carrier or the fault or negligence of the carrier's servants or agents" under sect. 4(2)(q) (46 U.S.C. Appx. 1304(2)(q)) continue to be available to carriers. See also Itochu International, Inc. v. M/V Western Avenir 1998 AMC 555 at p.564 (E.D. La. 1997).
The remarks found under the heading "Order and Burden of Proof" in Tetley, MCC III, 1988, 25: "Stow Properly and Carefully", apply equally to the obligation to properly carry, keep and care for cargo, as do the comments found in Tetley, MCC III, Chap. 6: "The Burden and Order of Proof", at sects. II(1) and IV and the many decisions cited there, including, inter alia, Gosse Millerd, Ltd. v. Can. Government Merchant Marine Ltd  A.C. 223 at p. 234, (1928) 32 Ll. L. Rep. 91 at p. 95 (H.L.); Quaker Oats Co. v. M/V Torvanger 743 F.2d 238 at p. 243, 1984 AMC 2942 at p. 2949 (5 Cir. 1984), cert. denied 469 U.S. 1189, 1985 AMC 2398 (1985); Associated Metals & Minerals Corp. v. M/V Arktis Sky 978 F.2d 47 at p. 51, 1993 AMC 509 at p. 515 (2 Cir. 1992); Transatlantic Marine Claims Agency, Ltd. v. M/V OOCL Inspiration 137 F.3d 94 at p. 98, 1998 AMC 1327 at p. 1330 (2 Cir. 1998); Rothfos Corp. v. M/V Nuevo Leon 2000 AMC 2054 at pp. 2058-2059 (S.D. Tex. 2000).; Wirth Ltd. v. Belcan N.V. (1996) 112 F.T.R. 81 at p. 97 (Fed. C. Can.); Voest-Alpine Stahl Linz GmbH v. Federal Pacific Ltd. (1999) 174 F.T.R. 69 (Fed. C. Can.) at pp. 74 and 79.
1985 AMC 1152 at p. 1162 (S.D. Ala. 1985), citing The Ensley City 71 F. Supp. 444 at p. 449, 1947 AMC 568 at p. 576(D. Md. 1947), aff'd 170 F.2d 25, 1948 AMC 1589 (4 Cir. 1948) and Sucrest Corp. v. M/V Jennifer 455 F. Supp. 371 at p. 382, 1978 AMC 2520 at pp. 2525-2526 (D. Me. 1978).
1987 AMC 1189 at p. 1193 (E.D. La. 1986), citing Cook Industries, Inc. v. Barge UM-308 622 F.2d 851 (5 Cir. 1980); and Toyo Kisen Kabushiki Kaisha v. Wellman 89 F.2d 539, 1937 AMC 642 (4 Cir. 1937); and United States v. Lykes Bros. Steamship Co., Inc. 511 F.2d 218, 1975 AMC 2244 (5 Cir. 1975).
 1 Lloyd's Rep. 1 at p. 46.
May 27, 1975, DMF 1975, 599.
October 19, 1973, DMF 1974, 94.
February 11, 1972, DMF 1972, 353.
71 F. Supp. 444 at p. 447, 1947 AMC 568 at 572 (D.Md. 1947), aff'd 170 F.2d 25, 1948 AMC 1589 (4 Cir. 1948).
1984 AMC 464 at p. 471 (E.D. La. 1983), citing, inter alia, The Ensley City, supra. See also Armour & Co. v. Compania Argentina de Navegacion 1958 AMC 332 at p. 338,  2 Lloyd's Rep. 49 at p. 52 (S.D. N.Y. 1957), aff'd 263 F.2d 323, 1959 AMC 938 (2 Cir. 1959); Cigna Ins. Co. of Puerto Rico v. M/V Skanderborg 897 F. Supp. 659 at p. 662, 1996 AMC 600 at p. 603 (D. P.R. 1995). See also Atlantic Consolidated Foods Ltd. v. The Doroty  1 F.C. 283 at p. 295,  ETL 550 at p. 562. "Ifthe carrier cannot provide that special type of service [carefully refrigerated holds for carrying tuna fish], he must refuse to carry that particular type of shipment."
The Grumant  2 Lloyd's Rep. 531 at p. 534 (Fed. Ct. of Canada); The Split  2 Lloyd's Rep. 535 at p. 539 (Fed. Ct. of Canada), where the Court referred to the first edition of Marine Cargo Claims on this point.
651 F. Supp. 452 at p. 456, 1988 AMC 2681 at pp. 2688-2689 (S D. Ala. 1987).
See also Levatino Co. v. American President Lines, Ltd. 233 F. Supp. 697 at p. 701, 1964 AMC 1247 at p. 1254 (S.D. N.Y. 1964), aff'd 337 F.2d 729, 1964 AMC 2087 (2 Cir. 1964): "Respondent was not obliged to accept carriage of the chestnuts but once it did respondent was charged with knowledge of the characteristics of the cargo it accepted and it had the duty to give the chestnuts the care which their character required."
1988 AMC 2486 (S.D. Fla. 1987).
Ibid. at p. 2496.
See, for example, Jensen v. Matson Navigation Co. 71 F. Supp. 939, 1947 AMC 1082 (D. Hai. 1947), where an ocean carrier was not responsible for damage to plaster objects destined for a wax museum, where the shipper failed to disclose their nature, thus preventing the carrier from caring for them properly.
February 4, 1953, DMF 1953, 385. See also Tetley, MCC III, 1988, Chap. 19: "Acts and Fault of the Shipper" in respect to "Dangerous Cargo".
811 F.2d 211, 1990 AMC 402 (5 Cir. 1989).
Ibid., F. 2d at p. 214, AMC at p. 406.
Ibid., citing O'Connell Machinery Co. v. M/V Americana 797 F.2d 1130 at p. 1134, 1986 AMC 2822 at p. 2827 (2 Cir. 1986).
27 F3d 1104, 1995 AMC 57 (5 Cir. 1994).
The industry standard in question required high-temperature fuel oil to be loaded at a temperature of twenty to thirty degrees F. above its "pour point".
27 F.3d 1104 at p. 1112, 1995 AMC 57 at p. 67 (5 Cir. 1994).
897 F. Supp. 659, 1996 AMC 600 (D. P.R. 1995).
Ibid., F. Supp. at p. 662, AMC at p. 603. This point was really an obiter dictum, however, as the Court found that the pliantiff had not made out a prima facie case. In addition, the decision seems questionable, in the light of other decisions extending the carrier's due diligence duty in respect of seaworthiness to containers which it provides for use aboard the vessel. See Houlden & Co. v. S.S. Red Jacket 1977 AMC 1382 at pp. 1401-1402 (S.D. N.Y. 1977), aff'd without opinion, 582 F.2d 1271 (2 Cir. 1978); Eastman Kodak Co v. S.S. Sealand Voyager 1991 AMC 2356 at p. 2361 (S.D. N.J. 1991), aff'd 958 F.2d 362, 1992 AMC 1520 and 1816 (3 Cir. 1992). See also Zim Israel Navigation Ltd. v. The Israeli Phoenix Assurance Company Ltd. (The Zim-Marseilles)  ETL 535 at pp. 547-548 (Supr. C. of Israel).
M. Golodetz Export Co. v. Lake Anja 751 F.2d 1103, 1985 AMC 891 (2 Cir. 1985), cert. denied, 471 U.S. 1117, 1985 AMC 2398 (1985). Similarly, in Italusa Corp. v. M/V Thalassini Kyra 733 F. Supp. 209 at pp. 216-217, 1990 AMC 1356 at p. 1366 (S.D. N.Y. 1990), involving alleged improper storage of cheese in an unrefrigerated warehouse after discharge, contrary to the Harter Act, the Court noted: "Furthermore, the melting properties of a particular cheese is not a matter of common knowledge, such as the freezing properties of liquids, that may reasonably be charged to the carrier."
See White & Son Ltd. v. White Star Line Ltd. (The Hobsons Bay) (1933) 46 Ll. L. Rep. 189, where the carrier did not follow the shipper's instructions as to the care of apples. The carrier was held responsible. See also Jones v. The Flying Clipper 116 F. Supp. 386, 1954 AMC 259 (S.D. N.Y. 1953).
898 F.2d 137, 1990 AMC 2193 at pp. 2195-2196 (2 Cir. 1990).
756 F. Supp. 757, 1991 AMC 1750 (S.D. N.Y. 1991).
1988 AMC 2486 (S.D. Fla. 1987).
Ibid. at p. 2494.
347 F.Supp. 447, 1972 AMC 880 (S.D. N.Y. 1972), aff'd 489 F.2d 752, 1974 AMC 1894 (2 Cir. 1974).
1997 AMC 1140 (S.D. N.Y. 1997).
Ibid. at p. 1155.
651 F.Supp. 452, 1988 AMC 2681 (S.D. Ala. 1987).
Ibid., F. Supp. at p. 457, AMC at p. 2689.
68 F.3d 418, 1996 AMC 260 (11 Cir. 1995).
46 U.S.C. Appx. 1304(2)(b).
46 U.S.C. Appx. 182.
729 F. Supp. 826 at p. 836, 1990 AMC 2506 at p. 2513 (M.D. Fla. 1990).
Hof van Cassatie van België, September 25, 1992,  ETL 213.
Schnell & Co. v. S.S. Vallescura 293 U.S. 296 at p. 306, 1934 AMC 1573 at p.1578 (1934). See Tetley, MCC III, 1988 Chap. 12: "Loss or Damage to Cargo". For more recent applications of the "Vallescura Rule", see Vana Trading Co. v. S.S. Mette Skou 556 F.2d 100 at p. 105, 1977 AMC 702 at p. 709 (2 Cir. 1977), cert. denied cert. denied, 434 U.S. 892, 1978 AMC 1898 (1977); M. Golodetz Export Corp. v. S/S Lake Anja 751 F.2 1103 at p. 1111, 1985 AMC 891 at p. 902 (2 Cir. 1985); Thyssen, Inc. v. S.S. Eurounity, 1994 AMC 393 at p. 399 (S.D. N.Y. 1993), aff'd 21 F.3d 533, 1994 AMC 1638 (2 Cir. 1994); Sun Co., Inc. v. S.S. Overseas Arctic 27 F.3d 1104 at p. 1109, 1995 AMC 57 at p. 62 (5 Cir. 1994).
C. Itoh & Co. (America) Inc. v. MV Hans Leonhardt 719 F. Supp. 479 at p. 502, 1990 AMC 733 at p. 740 (E.D. La. 1989) (a Harter Act case).
306 F.2d 426 at p. 432, 1962 AMC 2366 at p. 2375 (2 Cir. 1962).
Sedco Inc. v. Strathewe 800 F.2d 27, 1986 AMC 2801 (2 Cir. 1986).
 S.C.R. 1225.
1987 AMC 1189 at p. 1194 (E. D. La. 1986).
688 F. Supp. 1095, 1989 AMC 2218 (E.D. La. 1988).
Ibid., F. Supp. at pp. 1106-1107, AMC at p. 2222.
306 F.2d 426 at p. 431, 1962 AMC 2366 at p. 2373 (2 Cir. 1962); U.S. v. Lykes Bros. S.S. Co., Inc. 511 F.2d 218 at p. 225 note 15, 1975 AMC 2244 at p. 2253 note 15 (5 Cir. 1975). See also Office of Supply v. Naftoporos 1987 AMC 697 (S.D. N.Y. 1985) where, before selling, the carrier had first to attempt to salvage the cargo and, when that failed, was obliged to obtain cargo owner's consent to sell the cargo. See also Cargill, Inc. v. S.S. Nasagbu 404 F. Supp. 342 at p. 347, 1976 AMC 515 at p. 520 (M.D. La. 1975), where the solicitation of sealed bids in order to dispose of a creosote-contaminated molasses cargo was found to be "reasonable and proper".
515 U.S. 528 at p. 535, 1995 AMC 1817 at p. 1822 (1995), cited in Fireman's Fund Ins. Co. v. M.V. DSR Atlantic 131 F.3d 1336 at p. 1339, 1998 AMC 583 at p. 587 (9 Cir. 1997); Kelso Enterprises, Ltd. v. M/V Wisida Frost 8 F. Supp. 2d 1197 at p. 1204, 1998 AMC 1351 at p. 1361 (C.D. Cal. 1998).
1998 AMC 1035 at p. 1044 (E.D. La. 1997).
1999 AMC 837 at p. 840 (D. N.J. 1998).
1999 AMC 1700 at p. 1702 (C. D. Cal. 1999).
284 F. Supp. 34, 1968 AMC 974 (D. Col. 1968); upheld in appeal 410 F.2d 1006, 1969 AMC 1658 (D. Col. Cir. 1969).
1989 AMC 466 (D. P.R. 1988).
46 U.S.C. Appx. 1304(2)(i).
Ibid. at p. 469.
1994 AMC 2970 (S.D. N.Y. 1994).
Ibid. at pp. 2978-2980.
1973 AMC 2241 (W.D. Wash. 1973).
Generally, see Tetley, MCC III, 1988, Chap. 17: "Fire".
651 F. Supp. 418, 1988 AMC 2681 (S.D. Ala. 1987).
March 24, 1970,  ETL 561.
929 F. Supp. 694, 1997 AMC 803 (S.D. N.Y. 1996).
Ibid., F. Supp. at p. 709, AMC at pp. 824-825.
46 U.S.C. Appx. 1304(2)(n).
46 U.S.C. Appx. 1303(2).
929 F. Supp. at p. 708, 1997 AMC at p. 824.
1988 AMC 2208 at p. 2211 (S.D. N.Y. 1987). See also Transatlantic Marine Claims Agency, Inc. v. S.S. Zyrardow 898 F.2d 137, 1990 AMC 2193 at p. 2196 (2 Cir. 1990), where the carrier's failure to ventilate compartments filled with bananas accelerated their ripening, resulting in the carrier's liability for their deterioration.
 1 Lloyd's Rep. 85 at p. 104.
729 F. Supp. 826, 1990 AMC 2506 (M.D. Fla. 1990).
French "doctrine" regarding care of cargo appears to treat the general duty of caring for the goods under art. 38 of the Decree of December 31, 1966 as an obligation de résultat" ("obligation of result"), rendering the carrier liable for cargo damage unless a specific exception to liability applies. See Rèmond-Gouilloud, 2 Ed., 1993, para. 561, referring to the "necessary care" of cargo as comprising measures for attaining the "promised result" of ensuring that the goods arrive at destination in the same condition as when they were taken in charge by the carrier. See also Vialard, 1997, para. 458, referring to art. 38 as imposing an "obligation de résultat".
Rèmond-Gouilloud, 2 Ed., 1993, para. 561. See also Rodière & du Pontavice, 12 Ed., 1997, para. 355.
Decree no. 66-1078 of December 31, 1966, at art. 40, provides: (translation) "In case of interruption of the voyage, the carrier or his representative, on pain of damages, shall act diligently to ensure the transshipment of the goods and their on-carriage to the agreed port of destination. This obligation burdens the carrier regardless of the cause of the interruption." The duty of transshipment under art. 40, unlike the obligation of ordinary care under art. 38, is generally considered to be, not an "obligation de résultat", but a mere "obligation de moyens", or "obligation of means", permitting the carrier to avert liability for cargo damage by proving that it acted with diligence. See Rèmond-Gouilloud, 2 Ed., 1993 at para. 562, who indicates that circumstances such as storms or strikes may impose special, unforeseen duties on the master (e.g. transshipment), but that such exceptional situations impose only an "obligation de moyens". See also Rodière & du Pontavice, 12 Ed., 1997, para. 355, note 2; Vialard, 1997, para. 455.
December 7, 1973, DMF 1974, 336.
November 26, 1998, DMF 2000, 663.
June 3, 1999, (The Hapag Lloyd Clement), DMF 2000, 459, obs. R. Achard.
October 1, 1998, Bulletin des Transports 1999, 444. The Court further found that under the circumstances, the carrier's actions constituted "faute inexcusable" (recklessness with knowledge that the damage would probably result), thus entailing the loss of the right to limit the carrier's liability under art. 28 of the Law of June 18, 1966, as amended in 1986. See critical commentary by P. Bonassies, DMF Hors série no. 4, 2000, no. 81 at pp. 61-62.
September 30, 1999, (The Ile de la Réunion), Bulletin des Transports 1999, 745; see also commentary by P. Bonassies, DMF Hors série no. 4, 2000, no. 75 at p. 57.
See commentary by P. Bonassies in DMF Hors série no. 3, 1999, no. 104 at p. 76, on the decision of the Cour de Cassation, January 20, 1998 (The Red-Sea-Elbe), DMF 1998, 578, note Ph. Delebecque. This rule of apportionment applies where loss or damage is caused jointly by a fault of the carrier and an exculpatory exception falling within the "sphere of diligence" of the shipper (e.g. a defect of packing, the inherent vice of the goods or the fault of the shipper or owner of the goods). On the other hand, if the loss or damage is caused jointly by a fault of the carrier and an exception falling outside the "sphere of diligence" of the shipper (e.g., a peril of the seas, strikes, lock-outs, acts of public enemies, restraint of princes, etc.), the carrier is generally held responsible for the whole of the damage, provided that the latter's fault was the effective cause of the loss. The term "sphere of diligence" and the theory of mixed causation associated with it are those of Alain Sériaux, as developed in his book La faute du transporteur, 2 Ed., Economica, 1998 at paras. 209 et seq.
January 20, 1998 (The Red-Sea-Elbe), DMF 1998, 578.