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being ‘included’ in the container, whereas the English wording is ‘as packed’.
Issue 2: If the Hague Rules apply, are the relevant packages or units for the purposes of Article IV, Rule 5, of the Hague Rules, the containers or each individual piece of tuna? Given the finding that the Hague-Visby Rules applied compulsorily, the question of what is a unit under the Hague Rules, did not apply. However, as in the Commercial Court, the Court of Appeal also decided to consider the issue and once again upheld the first instance decision by confirming that the Hague Rules do not require any consideration of how the cargo could have been shipped if not containerised.
Summary The decision of the Court of Appeal is a landmark decision that upholds the judgment of the Commercial Court and confirms that for the first time in English law we now have clear authority for the following: • The Hague-Visby Rules will compulsorily apply when the contract of carriage requires the issue of a bill of lading and/or entitles cargo interests to demand the issue of a bill of lading, even if (in the absence of any variation, waiver or estoppel) a sea waybill is in fact issued.
Australia’s majority judgment in the El Greco case from 2004. In that case the Australian Court held that the expression ‘as packed’ as used in Article IV Rule 5(c) of the Hague-Visby Rules meant that individual items ‘enumerated in the bill of lading’ will only constitute the relevant ‘units’ under Rule 5(a) (rather than the container itself as a single unit) if it is clear from the bill of lading description how those items are actually packed in the container. At first instance the judge disagreed with the finding in El Greco and decided that Article IV,
Rule 5(c), merely requires that the number of units in a container is correctly stated on the bill of lading. As the sea waybills correctly stated that the containers were loaded with a number of pieces of tuna, the waybills therefore enumerated the number of units for the purposes of Article IV, Rule 5(c). In the Court of Appeal, Lord Justice Flaux
approved of the approach taken in the Commercial Court, which he noted was strongly supported by the French text of Article IV rule 5(c), which refers to enumeration of the number of packages or units
• The definition of ‘unit’ in the Hague Rules and Hague-Visby Rules is the same and the large pieces of tuna in this case were ‘units’ for the purpose of both.
• To qualify as a ‘package or unit enumerated in the bill of lading as packed in [a container]’ (Article IV, Rule 5(c) of the Hague-Visby Rules), it is sufficient that the physical items of cargo are accurately stated in the bill of lading and there is no additional requirement that the physical items must be described ‘as packed’.
BIFA is grateful to Simon Culhane of Clyde & Co. for permission to reproduce this article.
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BIFA holds Regional Member meetings around the UK and listed right are those due to occur soon. If you would like to attend and find out more about BIFA and what we do, then contact the appropriate Regional Consultant to BIFA. All BIFA Members are entitled and
encouraged to attend their regional meetings however pre-booking with the named contact is essential. Full contact details are shown on page 3 of
this issue. June 2018 Region Aberdeen
Regional Members’ meeting Solent
Regional Members’ meeting Glasgow
Regional Members’ meeting Heathrow
Regional Members’ meeting Stansted
Regional Members’ meeting 17 Date Time Venue Thu 14 Jun 1000 To be confirmed
Tue 19 Jun 0800 Duke of Wellington, Southampton
Thu 21 Jun 1000 To be confirmed Thu 21 Jun 1400 BIFA, Redfern House Wed 27 Jun 1130 Stansted Airport Ltd
BIFA Contact Len Hobbs
Colin Young Len Hobbs Colin Young Colin Young
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