Frozen tuna – waybills issued towards the end of the carriage
A recent High Court decision in Kyokuyo Ltd v AP Moller-Maersk A/S trading as Maersk Line  EWHC 654 (Comm) highlights the commercial risks of carrying cargo under waybills. The present article will consider the judge’s findings where the contract of carriage was stipulated to be “covered by a bill of lading” but waybills were finally issued en transit to the disport.
The cargo of frozen tuna was loaded at Cartagena, Spain to be delivered in Shimizu, Japan. At the destination the cargo was found damaged.
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The receivers of three container loads of frozen tuna brought a claim against the carriers resulting from alleged raised temperatures. While en route to the destination the cargo of tuna was re-stuffed due to a refrigeration malfunction, which in turn caused further damage due to the rough handling of the cargo.
Despite the fact that the contract of carriage entitled the receiver to have a Bill of lading issued, the carrier instead drew up a draft bill of lading. The parties then agreed to issue three separate waybills, one for each container, as a result of delays incurred in the course of the carriage. That caused a number of issues for determination but the point covered in this article is whether:
- There was a single contract for the shipment, carriage and discharge or whether a new contract of carriage was created by issuing the waybills; and
- Whether liability was limited pursuant the Hague or the Hague-Visby Rules.
In short the judge held as follows:
- The parties agreeing to waybills being issued at a later stage of the carriage did not create a new carriage of contract. For that reason, the receivers still had title to sue under the original carriage of contract.
- It was common ground that the carriers’ liability was governed by its standard terms and conditions of carriage which contained provisions for the applicability of the Hague or the Hague-Visby Rules.
- In the present case, the carriage was from a port in Spain, which was a Hague-Visby contracting state.
Although previous authorities had not addressed the legal implications of not having a bill of lading issued at the early stage and finally waybills being issued, the question that had to be asked was whether, when concluded, the contract provided for a bill to be issued incorporating either the Hague or the Hague-Visby Rules. The fact that the contract of carriage stipulated “to be covered by a bill of lading” and the port of shipment was from a Hague-Visby contracting state, that was sufficient to satisfy Article I(b) and thus sufficient for the Hague-Visby Rules to have the force of law.