Given the complexity involved in identifying the terms of the contract of carriage on which the cargo claim is based, it is obvious that it is impossible to generalise on which particular term the claimant will use to ground its claim: it is in the nature of a cargo claim that a claimant will collect the facts which can plausibly be argued to have caused the loss, and then attempt to characterise those facts as the reverse of a particular term in the claimant’s contract of carriage with the carrier.
Having said that, however, where a claim is brought on the terms of a contract of carriage contained in or evidenced by a bill of lading governed by the Hague – Visby Rules, it is clear that the claimant will need to establish facts which put the carrier in breach of one of two types of obligation, those going to the ship, and those going to the custody of the goods. Moreover, there are tactical advantages for the claimant in pursuing the first route rather than the second.
As regards the first route, Article III rule 1 of the Hague–Visby Rules requires the carrier, before and at the beginning of the voyage, to exercise due diligence to make the ship seaworthy, in a broader sense than simply the seagoing viability of the ship: the carrier needs also to ensure that the ship is properly manned and equipped and that its holds are fit to receive the cargo. Not only is the carrier barred by Article III rule 8 from inserting terms in its bill of lading lessening its duties in this regard, but the decision of the House of Lords in The Muncaster Castle prevents the carrier from escaping from this liability on the simple ground that due diligence was exercised in selecting a competent independent contractor to make the ship seaworthy. Finally, once the fact of unseaworthiness is established by the claimant, the burden of proof shifts very sharply on to the carrier to prove that it exercised due diligence to make the ship seaworthy.
As regards the second route, Article III rule 2 requires the carrier properly and carefully to load, handle, stow, carry keep, care for and discharge the goods carried, subject to the provision of Article IV.
The reference in Article III rule 2 to Article IV provides the claimant with the tactical advantage of Article III rule 1 over Article III rule 2. Article IV rule 2 contains a long litany of exceptions to the carrier’s liability, e.g., acts of God, perils of the sea, strikes, etc. Where the claimant can only prove facts which would put the carrier in breach of Article III rule 2, the carrier could seek to exclude its liability by proving facts which come within one or more of the exceptions to liability described in Article IV rule 2. Where, on the other hand, the claimant can prove facts which put the carrier in breach of its broad seaworthiness duties under Article III rule 1, those exclusions are not available to the carrier, given that Article III rule 1 does not start (as Article III rule 2 does) with the words “subject to the provisions of Article IV”.
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