The claimant brought an action seeking XCD 57,387.45 as damages for breach of a contract of carriage. The case involves 2,020 cartons of soy milk to be delivered to St John's, Antigua, from Malaysia. The carrier was CMA CGM SA and the defendant is the local agent of the carrier. The goods were delivered to the port of St John's by the carrier on 31 March 2012. The claimant says that it was notified of the arrival of the goods by the defendant in August 2012. The goods remained in an unrefrigerated shipping container for the six month period. As a result they were not fit for human consumption by August 2012.

The claimant says that the loss of the goods is entirely due to the failure of the defendant to notify the claimant of the arrival of the goods. The defendant avers that it notified the customs broker sometimes employed by the claimant of the arrival of the goods. The claimants exhibited a copy of the bill of lading. The claimant is described as the 'notify party' as well as the consignee. The claimant points out that, in any event, the contract evidenced by the bill of lading is between CMA CGM SA and the claimant and not the defendant. As the defendant is not a party to the contract, it cannot avail itself of the contractual provisions.

Held: Claim dismissed.

Much of the evidence presented to the Court was directed at whether or when the claimant was notified by the defendant of the presence of the goods at the port. The issue of notification is not crucial to the determination of this matter. On the evidence, the defendant failed to notify the claimant about the presence of the goods at the port until August 2012.

The bill of lading provides as follows:

6. CARRIER’S RESPONSIBILITY AND CLAUSE PARAMOUNT
(1) Port-to-Port Shipment:
When loss or damage had occurred between the time of loading of the Goods by the Carrier, at the Port of Loading and the time of discharge by the Carrier, or any Underlying Carrier, at the Port of Discharge, the responsibility of the Carrier shall be determined in accordance with the Hague Rules or any national law incorporating or making the Hague Rules, or any amendments thereto, compulsorily applicable to this Bill of Lading. The Carrier shall be under no liability whatsoever for loss of or damage to the Goods, howsoever occurring, if such loss or damage arises prior to loading on to or subsequent to the discharge from the Vessel carrying the Goods. Notwithstanding the foregoing, where any applicable compulsory law provides to the contrary, the Carrier shall have the benefit of every right, defence, limitation and liberty in the Hague Rules as applied by this Clause during such additional compulsory period of responsibility, notwithstanding that the loss or damage did not occur at sea. Notwithstanding that the loss or damage did not occur at sea. Notwithstanding anything else in this Bill of Lading to the contrary, on shipments to or from the United States, the rights and liabilities of the parties shall be subject exclusively to COGSA which shall also govern before the Goods are loaded on and after they are discharged from the vessel provided, however, that the Goods at the said times are in the custody of the Carrier or any Sub-Contractor. ...

6(3) Agency:
Whenever the Carrier undertakes to accomplish any act, operation or service not initially agreed to mentioned on this Bill of Lading, he shall act as Merchant’s agent and shall be under no liability whatsoever for any loss or damage to the Goods or any direct, indirect or consequential loss arising out or resulting from such act, operation, or service. If, for any reason whatsoever, the Carrier is denied the right to act as agent as mentioned above, its liability for loss, damage or delays shall be determined in accordance with this Bill of lading. ...

11. NOTIFICATION AND DELIVERY
(1) Any mention herein of parties to be notified of the arrival of the Goods is solely for information of the Carrier, and failure to give such notification shall not involve the Carrier’s liability nor relieve the Merchant of any obligation hereunder. ...

17. DESCRIPTION OF GOODS AND NOTIFICATION
The Carrier, his Agents and servants shall not in any circumstances whatsoever be under any liability for insufficient packing or inaccuracies, obliteration or absence of marks, numbers, addresses or description, nor for misdelivery due to marks or countermarks or numbers, nor for failure to notify the Consignee of the arrival of the Goods, any custom of the port to the contrary notwithstanding.

On the face of these clauses the carrier has agreed with the claimant that it should have no liability for the loss claimed. The question now arises whether such indemnity can be extended to the defendants. Clause 17 explicitly extends its protection to the agents of the carrier. It is to be noted that the defendant is sued as an agent of the carrier.

When the bill of lading is looked at in its entirety, it is clear that the claimant agreed that failure to notify it on the part of the carrier or its agents would found no cause of action. It is not for the Court to remake a commercial contract entered into at arm's length. It was open to the claimant to put in place other arrangements to ensure that it knew when the goods arrived. The defendant is protected by the clear terms of the contract and the claim is dismissed.