Timberwest Forest Ltd. v. Gearbulk Pool Ltd. et al.

In Carriage of Goods by Sea on (Updated )

This case concerned the meaning of “goods” as defined in the Hague-Visby Rules and deals with the need for clarity and accuracy in descriptions of deck cargo. The Plaintiffs were the shippers and consignees of 1725 packages of lumber carried from Vancouver to Antwerp. The cargo was comprised of two consignments destined to two different consignees and covered by two separate bills of lading. The carrier had the right to stow the entire cargo on deck, however, because there was space available, some cargo was stowed under deck. The carrier made no effort to identify the specific packages loaded on or under deck but merely kept track of the amount of lumber loaded in each location. In total, 86% of the entire shipment was loaded on deck and 14% under deck. Bills of lading were subsequently issued containing a statement that the cargo was stowed 86% on deck and 14% under deck. The deck cargo was damaged at the discharge port. The Defendant sought to avoid liability by relying upon an exclusion clause in the bills of lading for damage to deck cargo. The Plaintiffs argued that the contracts of carriage were governed by the Hague-Visby Rules and that pursuant to Article 8(3) the exclusion clause was null and void. Specifically, the Plaintiffs argued that the 86%,14% description of the stowage was neither a sufficient description of the deck cargo nor accurate in respect of the individual bills of lading. Both at trial and on appeal the courts agreed with the Plaintiffs. The Court of Appeal agreed with the motions Judge that the stowage notations on the bills of lading were unreliable with respect to the individual consignments. The Court of Appeal also agreed with the motions Judge that, because the specific packages carried on deck were not identified, it was impossible to determine the values of the cargo on deck. The Court of Appeal held that the uncertainty in the description of the deck cargo was analogous to an absence of information concerning deck carriage. In result, Court of Appeal held the carriage was governed by the Hague-Visby Rules and the exclusion clause was inapplicable.