Compania Sud American Vapores v MS ER Hamburg Schiffahrtsgesellschaft GmbH & Co KG 货物爆炸引起的索赔纠纷
|Charterparty - Charterers to load stow and trim cargo at their expense under supervision of the Captain - Vessel damaged following on-board explosion - Assumption that container exploded as result of being stowed adjacent to bunker tank which was heated during voyage causing cargo to become unstable - Whether owners or charterers responsible for loss - Hague Rules Article IV Rule 2(a)|
|Compania Sud American Vapores v MS ER Hamburg Schiffahrtsgesellschaft GmbH & Co KG - QBD (Com Ct) (Morison J) - 14 March 2006|
(2006) 689 LMLN 1
The vessel was chartered on an amended New York Produce Exchange form. Following an explosion on board the vessel the owners brought a claim against the charterers for US$63 million for loss of hire and loss and damage which they said was caused by the loading of a container of calcium hypochlorite. The charterers counterclaimed US$12 million.
The disputes were referred to arbitration. The cause of the explosion had yet to be determined by the arbitrators. One of the theories was that the container exploded because it was stowed adjacent to a bunker tank which was heated during the voyage, causing the cargo to become unstable. The present appeal was concerned with two issues which arose from that scenario, namely:
(1) If the stowage was done in such a way as to render the vessel unseaworthy, were the owners or charterers responsible for the losses?
(2) Assuming the bunkers were heated to a temperature above what was required to keep the fuel oil reasonably thin, did the owners have a defence to a claim for breach of Article III Rule 2 [“failing to care for .. the goods carried”] by reason of Article IV Rule 2(a); in other words was it an “act neglect or default ... in the management of the ship”?
Issue (1) - Stowage and seaworthiness
The charterparty provided inter alia as follows:
“8. ... Charterers are to load, stow, lash, secure, unlash, trim and discharge and tally the cargo at their expense under the supervision of the Captain ...
24. It is also mutually agreed that this Charter is subject to ... the following clauses both of which are to be included in all bills of lading issued hereunder:
USA Clause Paramount
This bill of lading shall have effect subject to the provisions of the Carriage of Goods by Sea Act of the United States approved April 16 1936 which shall be deemed to be incorporated herein ...
30. ... Charterers have the option to load up to a maximum permitted by regulations in accordance with certificate of compliance of containerized dangerous IMO cargo on and under deck provided packed/labelled/loaded/stowed/ lashed/secured/discharge according to board of trade/ IMO regulations and or local regulations ...”
The arbitrators concluded that the container should not have been stowed next to a bunker tank and that had the chief officer understood the computer programme he was using he would have realised that the location of the container was close to a source of heat and not “away from” “sources of heat” as the IMDG Code required. Therefore he was negligent. The arbitrators then turned to the question as to whose responsibility it was under clause 8.
The arbitrators considered that, subject to two exceptions, the effect of the unamended clause 8 was to transfer responsibility for stowage from the owners. The two exceptions were (1) where the master actually supervised the cargo operations and loss or damage was attributable to that supervision and (2) where loss and damage was attributable to the want of care “in matters pertaining to the ship of which the master was (or should have been) aware but the charterers were not” (Court Line Ltd v Canadian Transport Co Ltd (1940) 67 Ll L Rep 161).
As to the first exception, the arbitrators rejected the charterers’ contention that there had been “actual supervision” by the chief officer. As to the second exception, the arbitrators held that there was no relevant matter of which the ship was aware but of which the charterers’ were not, which prevented the charterers’ from producing a safe and IMDG compliant stow of the container.
The arbitrators also rejected a submission by the charterers that there was a further exception in that the owners were under a duty to intervene in the stowage of the cargo “to avoid unseaworthiness”.
On the charterers’ appeal:
Held, that the question was not whether the owners were under a duty to intervene in the loading process, but rather whether they owed that duty to the charterers. In the Court Line case, Lord Atkin robustly rejected the defence that the words “under the supervision of the captain” placed responsibility for stowage or to exercise due supervision over stowage upon the owners.
The Panaghia Tinnou
Accordingly, there was no authority which supported the charterers’ argument. In fact, the argument was contrary to authority. The Imvros
Issue (2) - Bunker tank heating
The arbitrators found that steam heating to the tank, to thin the oil in it, was applied for the first time during the morning of 22 December 1998. The practice adopted by the chief engineer to heat bunker fuel in the storage tanks to a temperature of between 50° and 60° was commonplace at sea. Although it might have been strictly unnecessary to heat the fuel to more than 38°C, the fact that it would be operationally possible to achieve the same result at a lower temperature was not sufficient to brand the chief engineer’s practice as unreasonable or negligent in the circumstances.
The arbitrators applied the relevant test as paraphrased in Cooke on Voyage Charters (2nd edition) paragraph 85.261:
“The principal inquiry, therefore, is whether the act or default which caused loss or damage was done (or left undone) as part of the care of the cargo or as part of the running of the ship, not specifically related to the cargo. Some functions of machinery on board are clearly related only to cargo.”
The charterers submitted that the overheating of bunkers causing the heating of cargo adjacent thereto, contrary to ordinary deck and engine room practice, was a neglect to take reasonable care of the cargo and was a default in the care of the cargo and had nothing to do with the care of the ship.
The arbitrators rejected the charterers’ submissions, and found that heating of bunker oil for transfer to the engine room was something done as part of the running of the ship not specifically related to the cargo.
On the charterers’ appeal:
Held, that the question as to the application of Article IV.2(a) was quintessentially one of fact for experienced arbitrators. This ground of appeal was hopeless and would be dismissed.
Simon Rainey QC and Nicholas Craig (Clifford Chance LLP) for the charterers; Jeremy Russell QC and Robert Thomas (Norton Rose) for the owners.
来源：06 LIOYD’S MARITIME LAW Newsletter April