Most readers will probably find that the clear and unambiguous printed bill of lading clause quoted below leaves little room for argument insofar as liability for loss of deck cargo is concerned. The clause reads as follows:
Goods stowed on deck shall be at all times and in every respect at the risk of the Shipper/Consignee. The Carrier shall in no circumstances whatsoever be under any liability for loss of or damage to deck cargo, howsoever the same be caused
Additionally, in this particular case the face of the bill of lading had been claused "on deck at shipper's risk".
Somewhat surprisingly, the Federal Court of Appeal in Canada recently dismissed an appeal filed by a carrier, thus upholding the earlier decision of the lower court which itself was unfavourable to the carrier. Basically, the court found that the carrier was liable for the negligence of the Master because the clause quoted above did not contain the word "negligence".
It is quite interesting to note how the judge construed the clause so as to find liability on the carrier in this case. In particular, the judge reasoned that the presence of the word "negligence" in two other clauses of the bill of lading was of significance.
Although the litigation involved several issues the main issue before the judge was whether the exemption language embodied in the printed deck stowage clause and the typed clause on the face of the bill of lading operated to release the carrier from liability for the negligent act of the Master.
The first instance judge reasoned that while the language of the deck stowage clause(s) was obviously wide enough to cover liability for negligence, it remained that the word "negligence" was left out. Furthermore, he went on to say that this omission, insignificant as it may seem in the face of words which were otherwise broad enough to exempt a carrier from liability arising from negligence, becomes significant where the word "negligence" is twice referred to as a relevant head of liability elsewhere in the contract (once in the "Both to blame" collision clause and once elsewhere).
It ought to be added that since the application of the Hague or Hague-Visby Rules was excluded by virtue of the fact that the cargo was stated to be stowed on deck and was so carried, the decision effectively meant that the carrier was without any further contractual defences in this particular case.
The lesson to be learned seems to be that a careful review of the relevant bill of lading clauses is always warranted when carrying goods on deck, even if the bill of lading appears to have been properly claused to reflect that the carrier is not responsible for loss of or damage to the goods "whatsoever" and "howsoever" caused. It is possible that the judge might have come to a different result if the printed deck cargo clause had read "
howsoever caused, including negligence
." or something similar.