1

2
3
 4

Ship owner’s obligation can be categorised under three distinct groups. Ship owner’s
obligation before commencement of the voyage, ship owner’s obligation during the
voyage (after the commencement of the voyage), and ship owners obligation after the
voyage when the ship reaches its destination.

Under the first group, ship owner's have to acquire the proper documents, to pay the port
charges for the ship sailing, to provide a seaworthy ship1 either under Common Law or
the Hague-visibly Rules, to issue to the shipper after demanding a Bill of Lading 2 Ship
owner's through the acts of their agents and servants (Stevedores who are not independent
contractors) are required to take care of cargo to load and stow it carefully and properly.3
and also to proceed to the agreed route without due dispatch.4

The second group requires ship owner's not to deviate from the agreed route unless good
reasons allow that either under the Common Law or the Hague-visby Rules.5 Ship
owners must take all reasonable care of the cargo both during the ordinary course of the
voyage and where some accidents have exposed it to danger.

Finally the third group requires ship owners when the vessel reaches its destination to
discharge the goods from the vessel properly and carefully by moving the cargo from the
hold to the ship side, to deliver them in the same order and condition in which they have
been received to the person entitled to be delivered upon representation of the Bill of
Lading, and in the case no one claiming the cargo the must allow a reasonable time to the
consignee of the cargo for taking delivery after which ship owner’s may land and
warehouse it at the consignee’s expense. In general terms ship owners must do anything
which is necessary for the performance of their contract. Exemption clauses whether
specific or general, agreed upon or introduced by the Common Law or the Hague-Visby
Rules can exempt the ship owner from their liability. Also ship owners might limit their

1
The Implied Warrant of seaworthiness can be replaced by the terms of the Bill of Lading.
2
Documentary responsibility in Article III rule – Carriage of Goods by Sea Act 1971 – which provides,
“After receiving the goods into his charge the carrier or the master or agent of the carrier shall on demand
of the shipper, issue to the shipper a Bill of Lading showing among other things …”.
3
Cargo Management Article III Rule 2.
4
This is an Implied Common Law obligation not to be found in the Carriage of Goods by Sea Act 1971.
5
Article IV Rule 4.
 5

liability by the term of the contract or by the statute to what certain extent can they do so
and when can they rely on these exemption clauses or limitation of liability?
In this term paper I will concentrate on the basic obligation of the ship owners either
under Common Law or the Hague-visby Rules as required by the question, then I will
mention negligence on part of the ship owner or his servants.

I will also discuss exemption clauses whether contractual Common Law, statutory ones,
the limitation provision in the Hague-visby Rules either the package unit or time
limitation and when the ship owner will lose the limitation provision…

In conclusion I will try to consider the effect of not providing the basic obligation either
under Common Law or the Hague-visby Rules upon the exclusion clauses and limitation
provision.
 6

A SHIPOWNER’S OBLIGATIONS

1 PROVIDING A SEAWORTHY VESSEL

In every contract of carriage there is an implied obligation if not expressly agreed upon,
that the ship owner will provide a seaworthy ship to stand the voyage.

What do we do mean by this undertaking? Does the Common Law and the Hague-visby
Rules differ in this regard? What are the tests laid down by the court to determine
whether the vessel is seaworthy or not? Upon whom does this burden rest? Can the ship
owner exclude or limit his obligation if so to what certain extent? And finally what will
be the effect of the exemption clause and limitation of liability if the ship owner did not
provide a seaworthy ship in the first place. These questions and others will be discussed.

(a) The meaning of seaworthiness (physical state of the ship)

The term seaworthiness might indicate that the ship owner has only to provide a
seaworthy vessel to stand the ordinary perils of the sea, but this is not conclusive, the term
has been widely interpreted by the judges6, and commentors.

Viscount Cave in Elder, Dempster and Co. v Paterson Zochonic and Co. Ltd. 7 said : “it
is well settled that a shipowner or charterer who contracts to carry goods by sea thereby
warrants not only that the ship in which he proposes to carry them shall be seaworthy in
the ordinary sense of the word, that is to say she will be tight stanch and strong and
reasonably fit to encounter whatever perils may be expected on the voyage, but also that
both the ship and her furniture and equipment shall be reasonably fit for receiving the
contract cargo and carrying it across the road.” Scrutton LJ’s8 argues that
seaworthiness is used in two senses.
(1) Fitness of the ship to enter on the contemplated adventure of navigation, and
(2) Fitness of the ship to receive the contemplated cargo as a carrying receptacle.

6
Defective machinery, a ship with a bullion room not reasonably fit to resist thieves, a ship without
dunnage, bad stowage, all amounted to unseaworthiness.
7
[1924] AC 522 – quoted in cases and materials on the Carriage of Goods by Sea (Second Edition) by
Mertin Dockrary, Cavendish Publishing Limited, 1998
8
AEReed and Co Ltd v Page, Son and East [1927] 1 KB 743, CA
 7

From this we can see that the test to provide a seaworthy ship is a twofold one. The first
requires ship owners to provide a good built up ship. This does not mean that the ship
must be neither perfect nor new. If the ship is old but can stand the ordinary perils of the
sea this will suffice. The second test is “cargo worthiness” or the ability of the ship to
carry the cargo. This is an obligation on the part of the ship owner who must consider the
equipment of the vessel to the particular goods he has agreed to carry, where the contract
is for the carriage of frozen meat in a ship fitted with refrigerating machinery, there is an
implied warranty that the ship and refrigerating machinery are fit to receive and carry the
frozen meat safely on the agreed voyage9. Also, the term seaworthiness implies an
obligation on the part of the ship owner to provide sufficient and competent crew to
operate the vessel, which obviously cannot operate without human’s intervention. Also
the vessel must carry certain kinds of documents such as certificate concerning the
satisfactory state of the vessel which is related to physical condition and accordingly to
seaworthiness10.

(b) When the ship must be seaworthy?

The ship must be seaworthy at the commencement of the voyage or each voyage if the
vessel will take more than one11. This means that the ship owner’s obligation only
operates at the beginning of the voyage and if a ship owner can prove that he provided a
seaworthy ship at the beginning of the voyage he won’t be answerable to what happens
afterwards.

This proposition is enforced by the Hague-visby Rules in Article III Rule I, which makes
the carrier liable before and at the beginning of the voyage to exercise due diligence to
make the ship seaworthy.

Although the obligation to provide a seaworthy ship in Common Law is absolute, it

seems that the Hague-visby Rules and Common Law agrees that ship owners obligation

9
Cargo per Maoriking v Hughes [1895] 2 QB. 550. quoted in Carver’s Carriage of Goods by Sea
(Thirteenth Edition) by Raoul Colinvaux , London, Stevens and Sons, 1982
10
Toppfer v Tossa Marine, The Derby [1985] 2 Lloyd’s Rep. 325
11
The doctrine of stages does not apply in relation to time charter, where the ship owner is only responsible
to provide a seaworthy ship at the commencement of the period of the Charter – see Carvers Carriage of
Goods by Sea by Raoul Colinvaux, Stevens and Sons, 1982 ; and Tetley in Marine Cargo Claims (Third
Edition), International Shipping Publication, 1988, who argues that this doctrine is no longer applicable
 8

commence when the voyage begins12. Since the ship owner cannot be held liable for a
long period from the moment the vessel leaves its harbour until it reaches its destination
and the burden of proving that will be highly difficult to establish in these circumstances.

(c) Common Law/Hague-Visby Rules

The obligation to provide a seaworthy ship is absolute in Common Law. This means that
the ship owner has to provide a seaworthy ship. In fact not merely by saying that he has
taken every precaution to do so13, unless the agreement of the parties modified such
undertaking, or the Hague-visby Rules applies14. In these circumstances the obligation to
provide a seaworthy ship will be transferred from absolute to due diligence15. But what
do we mean by due diligence? Is it an easy task on the part of the ship owner or carrier
for the sake of the Hague-Visby Rules?

Tetley defines due diligence “ to make the vessel seaworthy as a genuine, competent and
reasonable effort of the carrier to fulfil the obligation, set out in sub-paragraphs (A), (B)
and (C) of Art. 3 (1) of the Hague-Visby Rules”. McKinnon LJ in Smith, Hogg and Co. v
Black Sea and Baltic General Insurance16, said “the obligation to use due diligence … to
make the ship seaworthy is a limitation or qualification more apparent than real because
the exercise of due diligence involves not merely that the ship owner personally shall
exercise due diligence but that all his servants and agents shall exercise due diligence”.
Saying that the obligation is personal on the part of the ship owner, means that the ship
owner cannot shift this responsibility by claiming that he lift the ship to his crew or to
shippers repairs. Wilson17 argues that this is an important difference between the
Common Law and the Hague-Visby Rules. In my opinion I think the mere fact that the
Common Law implies an absolute undertaking on the part of the ship owner wont let him
discharge his obligation simply by saying that he delegated such obligation to others.

12
Tetley suggests that the moment at the beginning of the voyage is when all hatches are battened down,
visitors are ashore and orders from the bridge are given so that the ship moves under its own power or by
tugs or both
13
Lord Blackburn in Steel v Stage (1877) 3 App. Cas. see Carver’s Carriage of Goods by Sea by Raoul
Colinvaux, Steven and Sons, 1982
14
Article I (b), Article X
15
Sub-section 3 COGS Act 1971 states “There shall not be implied in any contract for the carriage of goods
by sea to which the Rules apply by virtue of this Act any absolute undertaking by the carrier of the goods to
provide a seaworthy ship”
16
[1939] 2 All ER 855
17
Carriage of Goods by Sea (Third Edition), John F Wilson, Financial Times Pitmans Publications 1998
 9

Another distinction between the Hague-Visby Rules and Common Law is that the ship
owners can escape liability if they can prove that the actual damage or fault resulted was
neither the actual fault or privity of the carrier nor the fault or negligent of the agent.18

In both the Hague-Visby Rules and the Common Law19 the test to determine whether the
carrier or the ship owner made his ship seaworthy is to ask whether a prudent ship owner
having the same requested knowledge and experience would regard his ship to be
seaworthy in these particular circumstances. This standard required by both the Hague-
Visby Rules and the Common Law will be likely to change over the years due to the
development of human technology in relation to sea vessels and the introduction of
international new standards in the safety management code.20

In conclusion it is apparent from the case law that the burden which rests upon the ship
owner (or carrier) to exercise due diligence to make a ship seaworthy is not a light one.21

(d) The Burden of Proof

Generally in the Law of Evidence, there is a presumption that a person who wants to
assert the truth of the matter the burden of proof lies on him, accordingly the law requires
ship owners (carriers) to prove that they have exercised due diligence to make the ship
seaworthy.

The Hague-Visby Rules in Article IV Rule III provide that “whenever loss or damage
resulted form unseaworthiness the burden of proving the exercise of due diligence shall
be on the carrier or other person claiming exemption under this article”.

Different interpretation has been suggested to this article. Both Tetley and Wilson agree
that this burden shall be solely on part of the ship owner (carrier) who has all the facts
available to him and knows the condition of his ship before and at the beginning of the
voyage.22

18
This burden of proof is difficult to establish – see Article IV – (9)
19
See McFadden v Blue Star Line [1905] 1 KB 697 at 706
20
Roger White, The Human Factor in Unseaworthiness Claims [1995] LMCLQ 221
21
The Law of International Trade, D M Day, Bernadette Griffin, Butterworth, London, 1993
22
Tetley, Marine Cargo Claims, International Shipping Publications, (1988)
 10

Some judgements indicate that the burden of proof rests upon the cargo claimants who
have to prove that his loss or damage is in the hands of the carrier23 Perhaps an attempt to
solve the problem by suggesting that the courts might call every party to have whatever
evidence available to him, then the court considers who is more capable of proving that
the ship is seaworthy.24

(e) Exclusion of the undertaking of seaworthiness

The first issue to consider is whether the shipowner carrier can exclude or limit his
absolute obligation to provide a seaworthy ship in common law or not? Can he also do so
under the Hague-Visby Rules where the obligation is transferred from absolute to due
diligence. If the answer is ‘yes’ can the shipowner still rely on the exemption clauses
which he has implemented in the bill of lading or the exculpatory exception offered by
the Hague-Visby Rules?25 The implied undertaking to provide a seaworthy vessel can
always be displaced by contractual clauses which will either exclude the liability of the
ship owner or to limit his liability to a certain extent. (e.g. a clause limiting the amount of
ship owner’ liability or a clause limiting the time in which claims may be brought against
them).

In Bank of Australasia and Others v Glan Line26. Pikford LJ said “There is nothing in
law to prevent a ship owner from putting an exception into his bill of lading which will
relieve him from all the consequences of unseaworthiness wherever and whenever it
exists, the only question in each case is whether he had done it or not”. But when the
court will construe these clauses in favour of ship owners and what is the effect of
incorporating a clause which is ambiguous not totally clear? The issue was considered in
this case, an action was brought by the plaintiff (endorsee of the bill of lading) to recover
damage for goods caused by failure on the part of the ship owners to provide a seaworthy
vessel. The ship owner wanted to relieve the plaintiff of their right to bring a claim
relying on a clause prohibiting bringing such claims after seven days which the plaintiffs
failed to observe, the Court of First Instance ruled that as the defendant did not provide a
seaworthy vessel the clause limiting his liability was ineffective. The Court of Appeal

23
See The Judgement of Noel J in Farrandoc (N.M. Paterson and Sons Ltd. v Robin Hood Flour Mills Ltd.
[1968] 1 Ex. C.R. 175 – at p 188 – see also note (17)
24
See above note (17)
25
See article IV – Rule 2 a – g.
26
[1915] 1 KB 39
 11

reached the same conclusion on different grounds that since the clause not being clear and
ambiguous offered no protection to the ship owners.27 In Kopitoff v Wilson 28 the plaintiff
sued the defendant to recover damages for the loss of a large number of iron armour
plates and bolts which were lost on the defendant ship. The plaintiff alleged that the
reason for such loss and damage was due to the ship owner not providing a seaworthy
ship. The defendant relied on the exemption offered by Common Law (Act of God,
Queen enemies …) the Court found that the plaintiff was not a common carrier therefore
he was liable and could not rely on the exemption clauses offered by Common Law.

In Rathbone Brothers and Co. v D. Maclver Sons and Co. v D. Macalver29 a wide
exemption clause was held to be not effective and did not exempt the ship owner from
liability for a damage to sheepskins. The Court of Appeal held that the last part of the
clause showed that the exceptions were not intended to extend to unseaworthiness and the
ship owner is excused only if he has taken reasonable care to prevent it30.

From the authorities mentioned and others, it is noted that the court goes with the
direction that the ship owner have to provide a seaworthy vessel before he can plead the
advantage of the exemption clauses he has agreed upon, or which the Common Law has
offered the only requirement is to use plain and clear words and the court will look at the
contract as a whole to determine whether the words are effective or not. If this is the
situation under Common Law what about the Hague-Visby Rules?

First of all, ship owner’s cannot contract out of their obligation to exercise due diligence
to make the ship seaworthy since this is a public order and any agreement otherwise will
be regarded null and void.31

In Dobell G E and Co. v Steamship Rossmore Co. Ltd.32 Lord Esher said “In section (3)
of this act so incorporated the exception which is to relieve the ship owner is made to
depend on the condition that the owner of the ship … shall exercise due diligence to make

27
Lord Mangahten in Eiderslie Steamship Company Limited v Borthwick [1905] AC 93 said “it is a
wholesome rule that a ship owner who wishes to escape liability which might attach to him for sending
unseaworthy vessel to sea must do so in plain words”.
28
[1876] 1 QBD 377, 381
29
[1903] 2KB 379
30
See also Rossetti [1972] 2 QB 116.
31
Reducing liability Article III Rule 8, see also Tetley see note (17) above
32
[1895] 2 QB 408
 12

the vessel in all respects seaworthy. If he does not do that the exception in his favour do
not take effect”.` In Toronto Elvators Ltd. v Colonial Steamship Ltd.33 Angers J said
“The primary obligation placed upon the carrier before he can take advantage of one of
the exceptions provided by Article I rule 2 is the exercise of due diligence”. Also Lord
Somerrall declared in Maxine Footwear Co. Ltd. v Gan Government Merchant Marine34
that Article III Rule 1 is an overriding obligation if is not fulfilled and the non fulfilment
causes the damage the immunities of Article IV cannot be relied on”.

Finally we can say that the position under the Common Law and the Hague-Visby Rules
is almost identical in relation to claiming the exemption clauses or immunities.

Due diligence is a requisite. The carrier first has to exercise due diligence, then he can
claim the immunities, but can he rely on the provision relating to limitation of liability35
when he did not provide a seaworthy vessel? We will see later on that this is not totally
clear when we are considering deviation.

2 REASONABLE DESPATCH (Proceed with all convenient speed)

There is a Common Law obligation not found in the Hague-Visby Rules that shipowners
impliedly if not expressly stated, undertake that they will prosecute to the agreed
destination with utmost despatch or with reasonable time.36

In M Andrew v Adams37 the charterers and the owners of the vessel agreed that the vessel
was to proceed from Portsmouth to St Michel (in the Azores) and there to load a cargo of
fruit and return to London. The vessel, instead of going to St Michel, went to Oporto and
then to St Michel. The court held that the shipowner was liable for breach of his
obligation that the voyage shall be commenced in reasonable time. In Owner of

33
[1950] Ex CIR 375
34
[1959] A.C. 589 p 602/603 quoted in Tetley see note (17) above – In this case the court thought that in
the event of a loss or damage due to fire if the operative cause is a failure to exercise due diligence to make
the ship seaworthy on the part of the Carrier this exemption won’t apply”.Article IV 5 (a) Package Unit and
Article III r (6) one year limit
35
Article IV 5 (a) package unit and article III r (6) one year limit
36
Section (14) of the Supply and Service Act provides “where under a contract for the supply of a service
by a supplier acting in the course of business, the time for the service to be carried out is not fixed by the
contract . . . there is an implied term that the supplier will carry out the service with a reasonable time”
37
[1834] I Bing NC 29 quoted in Paynes and Ivamy’s Carriage of Goods by Sea (Thirteenth Edition), E R
Hardy Ivamy, Butterworths, 1989
 13

Steamship Istros v Dahlstorem and Company38, an action was brought by the charterers
against the owners of the vessel alleging that the captain had failed to prosecute his
voyage with utmost despatch and they claimed damages in respect of the delay. The
owner replied that the weather was bad and relied on an exemption clause which
prevented him from liability in case of negligent or default of his servants. The judge,
Wright, J, after being satisfied that the clause was clear, found that the shipowner was not
liable for delay since no act or omission had been on his part.

In the circumstances that breach was truly established on the part of the shipowner, the
shipper is either entitled to compensation for the delay or not to regard himself bound by
any of the terms of the contract in case of frustrating object which will render the future
performance of the parties impossible.39

3 STOWAGE BELOW DECK (Cargo protection)

There is an obligation on the part of shipowners to stow goods under deck since this is the
proper place to stow them and they will not be exposed to a greater risk such as heavy
rains or high winds which might damage the goods.

If the bill of lading is silent and the parties did not agree where to stow the goods, then
shipowners are obliged to stow below deck.40 Of course, this obligation might be
modified by parties, if the shipper assented to carrying the goods on deck or the
shipowner proved a particular custom permitting carrying the goods on deck, he won’t be
liable for such breach.41

In Royal Exchange Shipping v W. J. Dixon and Co42, the indorsee of the bills of lading
brought an action against the shipowners for the value of 125 bales of cotton which had
been jettisoned, alleging that the shipowner negligently and improperly stowed the cotton
on deck. The shipowner repudiated this argument on two grounds. Firstly that a custom

38
[1930] 1 KB
39
See Carriage of Goods by Sea (Third Edition), John F Wilson, Financial Times Pitman Publishing, 1998,
p 16
40
See article 3(2) of the Hague-Visby rules where there is implication that the shipowner or carrier should
stow the goods under deck
41
See Carver’s Carriage by Sea (Thirteenth edition), Volume 2, by Raoul Colinvaux, Stevens & Sons, pp
858 – 862
42
[1886] 12 App. Cas.11
 14

in New Orleans and of the trade in which the vessel was engaged permitted such stowage
and an exception in the bill of lading excluded the liability of the shipowner in case of
jettison of the goods. The shipowner failed to convince the court that the custom
mentioned was truly established. Lord Halsbury LC replied to the second argument “the
exception in the bill of lading of jettison cannot avail the shipowner, who broke their
contract in stowing the cotton and thereby directly caused the loss to the merchants”. The
shipowner was liable for the value of the cotton therefore. If this is the position under
Common Law which regards stowage on deck as a breach on part of the shipowner who
could no longer rely on the exclusion clauses. What about the Hague-Visby Rules, can
the shipowner rely on the limitation provision?

In the Chanda,43, an action was brought by the seller and the buyer against the
shipowners, who stowed 35 packages out of 51 on deck. The bill of lading incorporated
the Hague rules incorporated in Germany, the issue whether the admittedly unauthorised
carriage on deck disentitled the defendant from relying on any exception or limitation
provision contained in the Hague Rules. Hirst J. delivered the judgement, he held that the
limitation clause (package limitation) did not apply since these clauses protect the
shipowner provided he honour his contractual obligation to stow goods under deck. The
decision was influenced by the fact that the bill of lading was not issued in the United
Kingdom and the Carriage of Goods by Sea Act 1971 did not have the force of law.44

In the Antares45, the question arose whether shipowners were entitled to rely on the one
year time bar contained in the Hague-Visby Rules when the cargo had been carried on
deck as a result of part of the machinery being damaged in the course of the voyage.
Lloyd L. J. who delivered the leading judgement relied on the wording of Article III r6
which provides “the carrier shall in any event be discharged from all liabilities
whatsoever unless suit is brought within one year.” The Act uses the words
“whatsoever”, which means that even in a situation where there is a fundamental breach
on the part of the shipowner or carrier, he can still limit his liability in respect of the
claims brought against him.

43
WIBAU Maschinefabric Hartmen S.A. and another V Mackinon Mackenzie and Co [1989] Lloyd’s LR
424 at p 505
44
Section 1(1) of the Carriage of Goods by Sea Act 1971
45
Kenya Railways V Antares Co Pte Ltd [1987], Lloyds 424
 15

Finally, it must be noted that in the event of stowing the goods on deck which the bill of
lading provided clearly that the shipowner is entitled to stow the goods on deck, the
Hague-Visby Rules will not apply to such cargo and the parties are free to negotiate their
own terms.46

4 NOT TO DEVIATE FROM THE AGREED ROUTE

Ship owners through their servants are required to proceed without deviation, but what do
we mean by deviation? When deviation is justifiable? Is there any difference between
Common Law and the Hague-visby Rules in this regard? Is a deviation a fundamental
breach of the contract which will bring the contract to an end? Can the cargo owner elect
to discharge this breach? What if a Bill of Lading has been transferred to a third party?
What’s the effect of quasi deviation? If the effect of deviation is to deprive the ship
owner from relying on the exclusion clauses why is that? All these issues and others will
be discussed under this heading.

(a) The meaning of deviation

Deviation is an unauthorised method of performing a contract straying from the usual

geographical voyage.47. English law unlike the United State Act treats deviation in a
narrow concept as any intentional and unreasonable change in the geographic route of the
voyage as contracted for48. The Hague-Visby Rules do not define deviation in any way49,
both English law and the Hague-Visby Rules refers to the word deviation as only a
change in the geographic route. The geographical route is the shortest, direct route
between the port of loading and the port of discharge. If no other route is prescribed in
the contract the ship owner is said to perform his obligation by following the ordinary
trade route or the customary route which other ship owners will follow if they take the
same voyage.

(b) Justifiable deviation

46
Article I(c) of the Carriage of Goods Act 1971
47
Does deviation still matter by Simon Bayghen [1991] 1 LMCLQ 70
48
See Tetley Marine Cargo Claims (Third Edition), International Shipping Publication, Chapter 35,
(Geographic Deviation)
49
See Article IV Rule (4)
 16

Although deviation is regarded as a serious breach of the contract, the law allows it for
good reasons, both the Common Law and the Hague-Visby Rules agree that deviation is
permitted in relation to saving life or to communicate with a vessel in distress in case
lives may be in danger Cockburn C J In Scaramanga v Stamp 50 said “… it would be
against the common good and shocking to the sentiments of mankind, that the ship owner
should be deterred from endeavouring to save life by the fear, lest any disaster to ship or
cargo consequent that he should be called upon to satisfy the call of humanity at his own
entire risk”. If common good and morality is the reason for permitting deviation to save
the life of humans, saving property does not stand on this footing that why Common Law
does not allow it51, on the contrary Article IV Rule (4) of the Hague-Visby Rules allows
deviation to save property or even attempting to save it, but it must be noted that
deviation to save property may be allowed under Common law when the contract
stipulates expressly so.

Also Common Law allows deviation when the voyage encounters a real danger or where
the deviation is extremely necessary for the prosecution of the voyage or for the safety of
the adventure. The Hague-Visby Rules in Article IV Rule (4) did not put a restricting
criteria for determining whether the deviation is permissible or not “… or any reasonable
deviation”, this is a matter left to the judges to decide depending on the fact and
circumstances of each case in front of them.

(c) Deviation and Fundamental breach

The obligation on the part of the shipowner not to deviate from the agreed route is either
expressly stated or implied. If the shipowner deviated from the agreed route he will be in
breach of the contract since he performed it in a totally different way than contemplated,
and this is called a Fundamental breach which goes to the root of the contract and forms
an essential part of it.

If deviation is regarded as a Fundamental breach, can the contract survive with all its
exceptions this breach? can the injured party waive this breach? and what is the effect of
his waiver?

50
[1880] 5 CPD 295, CA. quoted in Martin Dockray, Cases and Materials and the Carriage of Goods by
Sea (Second Edition), Cavendish Publishing Limited, 1998
51
See the judgement of Cockburn CJ in Scaramanga v Stamp – see note 50 below
 17

Two approaches were adapted by the court in construing the exception clauses which
wants to avail the party of his serious breach. The first approach (the rule of law
approach) renders all the exceptions ineffective whenever the shipowner deviated from
the contract and it was not possible by a clause, however smartly drafted, to exclude
liability for certain breaches of contract which were deemed to be fundamental.52

The second approach is the rule of construction which was laid down in Photo Production
Ltd v Securicor Transport Ltd53. The plaintiff sought to recover damages of £648,000
which occurred to his factory when the defendant employee started a fire which got out of
control and burnt down the factory. The defendant relied on an exclusion clause
prevented him from the liability of his employee. The House of Lords held that it was a
question of construction whether or not the exclusion clause covered a fundamental
breach and according to the facts the defendant was not liable because the exclusion
clause did in fact cover.54

The first approach makes the contract void55, and no more applicable even if the injured
party elected to discharge the breach. This obviously will be against the wishes of the
parties and also does not give regard to a fundamental principle of Contract Law that
parties are free to negotiate their own terms. On the other hand, the rule of construction
approach gives parties wide discretion in terms of negotiating their own terms, the injured
party can elect to waive the breach, even if it is essential and is rooted in the contract of
carriage.

In Hain Steamship Company Ltd v Tate and Lyle56, the charterer sold sugar to the
respondent and chartered a vessel from the appellant to proceed to Cuba and load a cargo
of sugar at two Cuban ports and one in San Domingo as ordered.

After loading at the first port, the vessel went to the second port in Cuba without going to
San Domingo as no order was received by the master since the message was not

52
See the judgement of Lord Denning in Karsales V Wallis [1956] 7 WLR 936,940.
53
[1980] A.C. 827
54
Contract Law, (Second Edition), Ewan McKendrick, MacMillan Press Ltd, 1994
55
See Joseph Thorley v Orchis Steamship [1907], 1 KB 661, where deviation was thought to bring the
contract to an end
56
[1936] 2 All E.R. 697.
 18

delivered. Soon afterwards the mistake was corrected and the master went to San
Domingo. The vessel was damaged and the sugar had to be discharged and part of it was
lost. The issue before the court was whether the charterer had waived the deviation and
what was the effect of that waiver upon the indorsee.

In this case, all the Lords agreed that in case of deviation the contract automatically will
terminate from the moment the deviation commenced and the injured party can chose
either to terminate the contract with all its exceptions or to waive the breach and treat the
contract as subsisting. In these circumstances the contract with all its exceptions will
apply and the shipowner can rely on the exceptions.

Lord Atkin said “the party affected by the breach . . . can elect to treat the contract as
ended, so he can elect to treat the contract as subsisting and if he does this with full
knowledge of his rights, he must in accordance with the general Law of Contract be held
bound.” It is submitted that the decision of the Judge is in accordance with Photo
Production v Securicor Transport57, that even if we regard deviation as a serious breach
the injured party can elect to keep the contract alive and whether an exception clause will
be effective or not is a matter of construction which the Law of Contract will solve.58

Finally, if the injured party waived the breach and treated the contract as binding, does
this affect the consignee? The position is clear in Tate and Lyle, the waiver on the part of
the charterer does not affect the consignee or indorsee to whom the bill of lading has been
transferred.59

(d) The effect of deviation

When deviation is established on the part of the shipowner who could not bring himself
under any of the Justifications which Common Law or the Hague-Visby Rules offer and
the cargo owner refused to elect to discharge this breach, if we assume that he can do so,
what will be the effect of this fundamental breach upon the exclusion clauses either

57
See note 53 above
58
‘Does Deviation Still Matter?’ by Simon Bayghen [1991], 1 LMCL Q70 and ‘Fundamental Breach and
Deviation in the Carriage of Goods by Sea’ by Charles Debattista (1989), JBL 22
59
Carver’s Carriage By Sea, Volume 2, (Thirteenth Edition), by Raoul Colinvaux, Stevens and Sons,
(1982)
 19

contractual, common law, or the statutory ones? Can the shipowner limit his liability
under the provision of the Hague-Visby Rules?

There is an old principle which extends to at least 200 years that a geographical deviation
will cause the shipowner to lose the benefits of the contract. An exempting and excluding
clause cannot avail the party of his guilty of breach.60

In James Morison v Shaw, Savil and Albion Company Limited61 an action was brought by
an indorsee for value against the shipowner to recover the value of lost bales of wool.
The defendant relied on an exception clause exempting him from liability in case of act of
God or King’s enemies. The plaintiff had a defence that the shipowner cannot rely on
such exemptions since he deviated from the agreed route. The court held that since
defendant when deviating broke the contract, he could no longer rely on the common law
exceptions. In Joseph Thorley62 an action was brought by the owners of the goods which
were damaged during the voyage. The shipowner relied as a defence on the exemption
clause contained in the bill of lading which exempted him from liability for loss arising
from negligence of stevedores. The court held that the shipowner cannot rely on the
exemption clause when he deviated from the agreed route. In Stag Line v Foscolo63 the
court held as the shipowners deviated from the agreed route, they could no longer rely on
the statutory immunities of Article IV Rule 2(c) of the Carriage of Goods by Sea Act
1924.64

It is clear from Stag Line v Foscolo that the position of Common Law and the Hague-
Visby Rules is the same, deviation deprives the shipowner from claiming the stipulation
in his favour (from the moment the deviation commences), but why does the law impose
such a severe result? Many explanations have been advanced, some suggest bailament65,
others alteration of risk theory, but the most acceptable explanation is that the shipowner

60
See William Tetley, Marine Cargo Claims (Third Edition), International Shipping Publications (1988),
Chapters on 'Fundamental Breach’, ‘Quaid Deviation’, ‘Rupture of Contract’, p 100
61
[1916] 2 KB 783
62
Joseph Thorley Limited v Orchis Steamship Company Limited [1907] 1 KB 661.
63
[1932] A.C. 329.
64
Article IV Rule 2 states that “Neither the carrier nor the ship shall be responsible for loss or damage
arising or resulting from (c) perils, danger and accidents by the actual fault or privity of the contract”
65
See Brian Coote, ‘The Effect of Discharge of Breach on Exception Clauses’ (1970), CLJ, p 221 at 341
 20

who deviated contracted out of the voyage and out of the contract which contained the
exception he can no longer plead.66

Finally, can the shipowner limit his liability under the Hague-Visby Rules? The position
is not totally clear as far as the English law is concerned.

Scurton’s suggest that the shipowner can still rely on the limitation provision in view of
the word in any event when the bill of lading is issued in the United Kingdom and the
Carriage of Goods by Sea Act 1971 have the force of Law.67

Tetley on the other hand makes a distinction between two different situations –
unreasonable deviation to cause damage and unreasonable deviation without intent to
cause damage, but only with intent to do the act. The former situation will deprive the
shipowner from relying on the package limitation, while the latter situation will deprive
the shipowner from relying on the one-year limit.68

In my opinion it is submitted that the shipowner when he deviated from the agreed route,
he rarely if ever intends to cause damage to the cargo owner but he wants to benefit
himself instead, and if we assume that the shipowner wanted to cause damage, how can
we establish that?

I think in any event it should not mean that the shipowner (carrier) can still rely on the
limitation provision. He is in breach and he cannot take the benefit of the Hague-Visby
rules.

5 DELIVERING THE CARGO

Ship owners or their agents have to deliver the cargo in the same order and condition
which they have been received to the proper person entitled to be delivered. But when
ship owners can release themselves of this obligation? Can ship owners or their agents

66
See the judgement of Collins M.R., Fletcher, L.J., in Joseph Thorley V Orchis Steamship [1907] 1 KB
661, at 667, 669
67
Scurton on Charterparties, (Twentieth Edition) by S.C. Boyd, A.S. Burrows, D. Foxton, Sweet and
Maxwell, p. 448 – 449, and a similar view, ‘Fundamental Breach and Deviation in the Carriage of Goods by
Sea’, Charles Debattista [1989], JBL22
68
William Tetley, Marine Cargo Claims, (Third Edition), International Shipping Publications, 1988.
 21

deliver the cargo without presentation of the Bill of Lading? If so will they be held liable
for such delivery? Can they exempt their liability? When can we say that ship owner
liability is terminated?

The traditional rule is that delivery must be made to the lawful holder of the Bill of
Lading who represent it to the ship owner agent in a reasonable time, this traditional rule
is laid down by Diplock L J in Barclays Bank Ltd. v Commissioner of Custom Excise69,
who said “it is clear law that where a Bill of Lading or order is issued in respect of a
Contract of Carriage by sea, the ship owner is not bound to surrender possession of the
goods to any person whether named as consignee or not, except on production of the Bill
of Lading”.

Ship owners, in certain situations override this traditional rule, of course they do that at
their risk, if a ship owner delivers the cargo to the first person representing an original
Bill of Lading it is said that he has satisfied his duty even later on if turned out that
another person was holding another Bill of Lading70. The Court is the proper place to
determine who should be entitled to such delivery.

Demanding an indemnity (bank or personal guarantee) is a usual practise for ship owners
in a situation where delivery is made without production of the Bill of Lading, but this
indemnity remains good as long as the financial position of the guarantor is OK and also
delivery without presentation of the Bill of Lading remains a serious breach of the
contract on part of the ship owner who is not required to do so under the Contract of
Carriage.71

Parties are free to negotiate their own terms accordingly a ship owner may incorporate a
clause which will relieve him of liability in case of negligence on part of the master who
delivered the cargo not to the proper person. The issue was considered in Sze Hai Tong
Bank v Rambler Cycle Co. 72 Lord Denning thought that the Excepting of Liability
Clause is ineffective since the obligation on part of the ship owner is essential and goes to
the root of the contract and the ship owner can not simply contract out of it, but this

69
[1963] 1 Lloyds Rep. 81, 88. Please see note (3) a below
70
See Glyn v East and West India Dock Co. (1882) 1 Ap.
71
‘The presentation Rule revisited’, John F. Wilson, [1995] LMCQ 289
72
[1959] A.C. 577 : [1959] 2 Lloyds Rep. 114, quoted in Wilson article. See note 71 above
 22

approach (the rule of Law Approach) as stated earlier is no longer acceptable after the
land mark decision in Photo Production Ltd. v Securicor 73 transport which established
that now it’s a matter of construction whether an excepting clause will be effective or not.

Finally we can say that the liability of the ship owner shall cease when goods are no
longer in his possession. If the ship owner or his agent delivered the goods to the person
entitled to be delivered, or if the ship owner warehoused the cargo after waiting a
reasonable time when nobody is claiming the goods74. From this moment on we can say
that ship owners have satisfied their obligation and they are no longer answerable to the
cargo owner or the consignee. But it must be noted that this is a matter for the parties to
decide and can be modified by the custom applicable in the place of delivery.

73
[1980] A.C. 827 – see also note 71
74
Please see Payne and Ivamy, Carriage of Goods by Sea (Thirteenth Edition), Butterworth, 1989
 23

B NEGLIGENCE

There is some form of connection between negligence on the part of the ship owner or his
servants or master and the obligations discussed earlier such as seaworthiness and
deviation. Negligence on the part of the ship owner will usually but not necessarily
constitute unseaworthiness. If a ship owner employed a master who is not competent
either by his knowledge or experience this as stated earlier will constitute
unseaworthiness and will render the ship owner liable. But what do we mean by
negligence? Can the ship owner draft wide clauses to exempt his liability in case of
negligence on his part or his servants and agents? What is the effect of negligence on the
exemption clauses incorporate? Is it the same as the effect of a breach of the undertaking
of seaworthiness?

Negligence is defined as the breach of duty to take care that it is imposed by either
Common Law or Statute75. Three essential requirements must be present in order to be in
negligent conduct. A duty of care which is implied in the Contract of Affreightment that
the ship owner use due care and skill in navigation of the vessel and in carrying the
goods, a breach on part of the ship owner who will be contracted with other ship owners
and a resulting damage which will compensate the cargo owner in case of breach on part
of the ship owner.

The ship owner may contract out of his obligation not to be held liable in case of
negligence as other exclusion clauses76. The court is suspicious to it, will construe it
very carefully, and in case of ambiguity, the court will be likely to construe it against the
person claiming it.

The effect of negligence on the ship owner’s liability is the same as the effect of breach of
the undertaking of seaworthiness which will deprive the ship owner from relying on the

75
Charles Worth and Percy on Negligence, London, Sweet and Maxwell, (1997): “negligence is also
defined as a tort which involves a person breach of duty that is imposed upon him to take care resulting in
damage to the complaint”. See also Lord Denning in Lochgelly Iron and Coal v M’Mulan [1934] A. C.
where he said “negligence is the Failure to use the requisite amount of care required by law in the case
where a duty of care exists” – see also the unfair contract term 1977 in S1 (1)
76
See Canada Steamship Lines v The King [1952] A.C. 192 – quoted in Scurton on Charter Parties,
London, Sweet and Maxwell, (1996)
 24

exemption clauses if negligence was established and attributed directly to the loss or
damage occurred to the shipper or cargo owner.

In Dunn v Bucknall Brothers77. A case related to a breach of duty by the ship owner who
promised to deliver the goods at a certain time. The ship owner failed to do so as a result
of permitting to load enemies’ goods, which were liable to confiscation. the ship owner
wanted to rely on the exemption clause contained in the Bill of Lading, which will
exempt him. For loss or delay occasioned by restraint of princes, the court held that as a
result of negligence on part of the ship owner he could not rely on the exemption clause,
consequently he was made liable.

The next issue to discuss is what is the consequence of negligence on the part of the
Carrier. Who is claiming the advantage of the immunities contained in the Hague-visby
Rules 78? Can he still claim them in case of negligence on his part? The issue was
considered in Silver v Ocean Steamship Co. Ltd. 79, the case concerned a claim brought by
a cargo owner against a ship owner in respect of damage to the cargo resulted from the
negligence on part of the ship owner. The ship owner relied on the Hague-Visby Rules
Insufficiency of Packing. Answering the question Lord Career J said “the exception of
Insufficiency of Packing which was incorporated in the Bill of Lading by reference to the
rules contained in Carriage of Goods by Sea 1924 will not protect the ship owner in case
of negligence”.

It is noted the Carriage of Goods by Sea Act 1971 makes a distinction between two forms
of negligence, the first related to negligence in the navigation or management of the ship
and negligence not in the navigation or management of the ship80. The carrier can be
relieved from the former but not the latter81. Navigation or management of the ship is not
defined in the act nor defined in any previous ones but judicial interpretation might help
in determining whether negligence is due to management of the ship or not.

77
[1907] 2KB. 614, quoted in Carver’s Carriage by Sea Vol. (1), London, Stevens and Sons, (1982)
78
Article IV (2) a – 9.
79
[1930], KB. 416, quoted in Carver’s Carriage by Sea Vol. (1), London, Stevens and Sons, (1982)
80
Article IV Rule 2 states “Neither the carrier nor the ship shall be responsible for loss or damage arising or
resulting from (a) act negligent or default of the master, mariner, pilot, or the servants of the carrier in the
navigation or in the management of the ship
81
Scurton on Charter Parties (Twentieth Edition), S.C. Boyd, A.S. Burrows and David Foxton, London,
Sweet and Maxwell, 1996
 25

If the loss or damage caused by negligence of the ship owner or carrier himself not of his
servants, the ship owner or carrier can not in these circumstances rely on the immunities
offered by the Hague-visby Rules82

In conclusion we can sum up that negligence on part of the ship owner if proved will
deprive him from relying on the exemption clauses which he has incorporated in the
contract of affreightment and according to Hague-Visby Rules if the ship owner wants to
rely on the immunities offered he must prove that he was not negligent or that the loss is a
result of neglect on part of his servants or agent in the navigation of the ship.

82
Article IV Rule 2.
 26

C LIMITATION OF SHIPOWNER LIABILITY

The extent of a shipowner’s liability cannot be absolute, certain limitation must be on the
obligation of the shipowners in relation to sea carriage. A shipowner’s liability can be
limited to a certain extent either by the agreement of the parties or under the Hague-Visby
Rules and the Merchant Shipping Act 199583 which implemented the 1976 International
Convention on limitation of liability for maritime claims.

a) Limitation of liability under the Hague-Visby Rules

When the Carriage of Goods by Sea Act 1971 has the force of law,84 the shipowner’s
liability will be limited according to the rules of the Act. Limitation provision can be of
two kinds in respect of package or unit limitation and the one-year bringing claims. I
shall discuss every one individually.

(i) Package or unit limitation

Shipowners or carriers are entitled to limit their liability in respect of the damage
or loss to the goods carried on their ships in an amount exceeding 666.67 units of
account per package or unit or 2 units of account per kilogram of gross weight85
The protection does not apply if the damage resulted from an act of negligence on
the part of the shipowner or omission of the carrier done with intent to cause
damage or recklessly and with knowledge that damage would probably result or at
least might result.86 Parties may agree to exceed the amount fixed by the Act
either by a declaration of the nature and value of the shipped goods by the shipper
before shipment and the insertion of the declaration in the bill of lading87 and any
clause, convenant, agreement attempting to reduce the liability of the carrier
below these limitations provided by the Act will be declared null and void.88

83
The First Limitation Act 1733 mentioned the rationale behind such provisions : “it was of the greatest
consequence and importance to this Kingdom to promote the increase of the number of ships and vessels to
prevent any discouragement to merchants . . . which will necessarily tend to the prejudice of the trade and
the navigation of this Kingdom”. See also Ships are Different : the Case for Limitation of Liability, David
Steel (1995), LMCLQ 77
84
Section 1 (I) of the Carriage of Goods by Sea Act 1971
85
Article IV, 5(a)
86
Article IV, 5(e)
87
Tetley, W, Marine Cargo Claims (Third Edition), Blais (1988)
88
Article III, Rule 8
 27

(ii) Time Limitation

The other form of protection offered to shipowners or their agents is notice of
claims and time limits of claims for loss or damage of goods. A notice in writing
should be handed in to the carrier or his agent and the suit should be brought
within a year after the delivery of the goods, or in case of non-delivery, the date
when they should have been delivered.89 The reason for that is a two-fold one.
First of all, the carrier cannot be held liable for more than one year since the legal
positions should be settled after such a period of time has elapsed. Also in terms
of evidence, parties might lose whatever documents they have to represent in
courts, and this is an attempt by the authors of the Hague-Visby Rules to speed up
the process of the Courts in looking and settling marine cargo claims.90 A clause
introduced by the shipowner reducing his liability in terms of bringing claims
against him will also be declared null and void since this is a public order and the
Hague-Visby Rules provides the maximum protection for shipowners and
carriers.91

b) Limitation of Liability under the Merchant Shipping Act 1995

Shipowners92 can limit their liability according to the Merchant Shipping Act 1995,
notwithstanding the provision of the Hague-Visby Rules93 in respect of claims which are
not excepted from limitation94 brought against him or his vessel, for loss of life or
personal injury or loss or damage to property, loss resulting from delay in the carriage by
sea of cargo passengers or their luggage, or loss resulting from infringement of rights
other than contractual rights, and claims in respect of the raising, removal, destruction or
the rendering harmless of the cargo of the ship.95 In the circumstances it appears that the
loss resulted from personal act or omission of the shipowner committed with intent to

89
Article III, Rule 6.
90
Wilson, J, Carriage of Goods by Sea (Third Edition), Financial Times Pitman, 1998
91
Article III, Rule 8
92
Section 185 (5) of the Merchant Shipping Act 1995 defines owners as any part-owner and any charterer,
manager or operator of the ship
93
Article VIII of the Hague-Visby Rules provides “the provision of these rules shall not affect the rights
and obligations of the carrier under any statute for the time being in force relating to the limitation of the
owner’s of a seagoing vessel”
94
Schedule 7 – Convention on Limitation of Liability for Maritime Claims 1976 – Article 3 – Claims
excepted from liability.
95
Article 2 – Claims subject to limitation 1 (a – f).
 28

cause such loss or with knowledge that such loss would probably result, shipowners
cannot protect themselves under the provisions of this Act.96

Shipowners can limit their liability in respect of claims for loss of life or personal injury
in two situations : for a ship not exceeding 2,000 tons (2 millions unit of account) or for a
ship exceeding 2,000 tons (from 30,001 – 70,000 tons 600 units, below 30,000 – 800
units – more than 70,000 – 400 units)97, or in respect of passengers’ claims which will be
limited to 175,000 units of account98 multiplied by the number of passengers which the
ship is authorised to carry according to the ship’s certificate99. Limitation of liability can
be either without100 or with constitution of the Fund101 by depositing the sum or by
producing a guarantee acceptable under the legislation of the state party where the Fund is
constituted and considered to be adequate by the Court or other competent authority102,
the Fund shall be distributed among the claimants in proportion to the established claims
against the Fund.103

96
Article 4 – Conduct barring limitation – the burden of proving the misconduct on the part of the
shipowner is upon the person making the claims
97
This is a new version of the convention which the 1996 protocol replaces – see Article 6, paragraph 1 and
Part II – provisions having effect in connection with convention – the general limits 5(1) – (3)
98
Article 8 provides that the unit of account is the special drawing right as defined by the International
Monetary Fund . . .”
99
The 1996 protocol increased the unit of account and deleted the cap of 25 million units – see also
Dockray, M, Cases and Materials on the Carriage of Goods by Sea (Second Edition), Cavendish Publishing
Limited, 1998
100
Article 10
101
Article 11(1) – Constitution of Fund – shall be available only for the payment of claims in respect of
which limitation of liability can be invoked
102
Article 11(2)
103
Article 12 (1)
 29

CONCLUSION

As we have seen, Common Law and the Hague-Visby Rules imply certain obligations on
the part of the shipowner to provide a seaworthy ship, not to deviate from the agreed
route, to stow goods below deck. These basic obligations are very fundamental to
perform the contract of carriage and if the shipowner does not fulfil these basic
obligations, he is regarded in breach of contract of carriage.

Exclusion clauses and contractual limitation of liability, whether attempting to relieve or

lessen the shipowner from his liability in respect of damage or loss to the cargo, were
given effect when they were used in their proper purpose, where the parties are free to
negotiate their own terms. But these clauses became soon after very severe in their effect
(e.g. clauses exempting shipowners from liability of their servants and agents in case of
negligence on their part, clauses exempting their liability in case of fundamental breach).
Also they became a way of harassment by the shipowners who occupied a strong
bargaining position against the shippers, the weaker party in the society who did not have
any choice but to accept the shipowner’s terms. The social and legal harmless function of
these exclusion clauses which became thereafter lead to the intervention of the legislator
either on the domestic (unfair contract terms 1977) and international level (Hague Rules)
to make the balance again between the interests of the carriers and shippers, trying to put
a limit to these wide exclusion clauses.104 But did the legislator succeed in his task ?

The Hague Rules and their successors, the Hague-Visby Rules, were surely one of the
ways adopted to provide a clear and fair balance between right and responsibilities of
carriers and shippers. Looking throughfully to the provisions of the rules, it is apparent
that shipowners dominant power influenced the authors of the Rules through
incorporating a wide range of immunities and limitation provisions commonly used in
carriage contracts.105 But when shipowners can take advantage of these immunities and
limitation provisions, the position under Common Law is identical to the Hague-Visby
Rules in respect of the exception, the carrier has to come to the court with clean hands,
doing what he is required to do under the contract. If he fulfils his obligations, then and

104
Contract Law by Ewan McKendrick (Second Edition), MacMillan Press Ltd, 1994
105
Tetley, Marine Cargo Claims (Third Edition), International Shipping Publications, p. 839
 30

only then he can rely on the immunities and exceptions offered by the Common Law or
the Hague-Visby Rules.

The position of the limitation provision in the Hague-Visby Rules is not totally clear. The
carrier can be discharged from liability in respect of claims brought against him, even in
the situation that he did not provide a seaworthy ship or deviated from the agreed route in
view of the word ‘whatsover’, while he cannot take advantage of the package or unit
limitation when he did not perform his obligation.

Until clear interpretation of the wording of the Act106, what the authors of theHague-
Visby Rules had in mind when they drafted these provisions, I can say that the shipowner
is in breach of his obligations and he cannot rely and take the advantage of the Hague-
Visby Rules.

106
Article III Rule (6), Article IV Rule (5)(a).