Maersk Tangier – Part 2 – Court of Appeal keeps it simple
As promised, this is the second legal update on the Maersk Tangier case, considering the package limitation issues raised in the case. Briefly, the question was whether details on the face of a waybill recording the number of tuna loins as the number of “PCS” shipped, could constitute the number of “packages or units” for limitation purposes.
The waybills for each of the relevant containers included broadly similar descriptions of the container contents under “particulars furnished by shipper” in the following form (with the number amended in each case):
“1 container said to contain 520 PCS frozen Bluefin tuna loins”
The draft bills of lading had been more descriptive (describing also the number of “bags of frozen tuna other parts”) but the parties had agreed that it was the description in the waybills that were relevant.
The question was whether, for package limitation purposes under The Hague Visby Rules, the loins were each a separate “package or unit”, or whether it was the containers that were the “package”. The difference in monetary terms was substantial – in the case of the container with “520 PCS” limitation was either 666.67SDR (c. £705.83) for one container or 346,668.40 (c. £367,274.18) for 520 tuna loins.
The Hague Visby Rules state at Article IV Rule 5(a) that “…neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection with the goods in an amount exceeding 666.67 units of account per package or unit…”
Article IV Rule 5(c) states:
“Where a container, pallet or similar article of transport is used to consolidate goods, the number of packages or units enumerated in the bill of lading as packed in such article of transport shall be deemed the number of packages or units for the purpose of this paragraph as far as these packages or units are concerned. Except as aforesaid such article of transport shall be considered the package or unit.
Maersk argued that (a) to be enumerated “as packed” required the enumeration to state that how the articles enumerated had been packed, and (b) to consider the tuna loins enumerated “as packed” would give no meaning to the phrase “packages or units”.
The Respondent argued that such a requirement would lead to substantial differences dependent on the language used and it would be unsatisfactory for “nuances of language” to be relevant. While arguments that nuances in language should be irrelevant are slightly ironic coming from a lawyer, the judge agreed and rejected the argument that the bill of lading had to include a description of how the items were packed.
The judge held that Maersk’s construction had the potential to create uncertainty and lead to unduly fine distinctions dependent on the precise language used. Accordingly the judge rejected the approach of the majority in the “El Greco” case, reaching the view that it placed an impermissible and unjustified “gloss” on the relevant provision. He therefore held that each loin was a separate “unit” for the purposes of limitation.