Packets of wood planks were loaded under clean bills of lading  on board the Flinterdijk and the Flinterduin for carriage from Rundvik (Sweden) to Philadelphia (USA). The carriers under the bills of lading also carried out the loading, stowage and discharge of the cargo. During discharge it was established that packets had shifted, that wood planks had become detached from the packets and that various packets had suffered damage. The cargo interests (SCA as both shipper and consignee, and IF as subrogated cargo insurer) claimed damages from the carriers, which are part of the Flinter Group. The Hague-Visby Rules and Dutch law applied to the contracts of carriage.

Held: In accordance with art 3.1 and art 3.2 of the Hague-Visby Rules, in conjunction with Art. 8:378 and 8:381 of the Dutch Civil Code, the carrier is in principle obliged to deliver the cargo to its destination undamaged. This obligation was not discharged by the carriers as it was clear that the damage occurred during shipping.

With regard to the reliance by the carriers on the exception for ‘insufficiency of packing’ as referred to in art 4.2.n  of the Hague-Visby Rules, the onus is on the carrier to state facts and circumstances that support that the damage resulted from insufficiency of packing. The carrier did not meet this obligation to furnish facts. The carriers also failed to address the statement from the cargo interests that shipments of wood packed in similar fashion have been transported for more than ten years, also by means of ships from the Flinter Group, and that damage was rare. It was up to the carriers to comment on that statement, as these virtually damage-free voyages were an established fact between the parties.

The mere fact that the cargo damage occurs during carriage does not by itself lead to liability of the carrier. For the carrier to be liable, it must also have failed to comply with the obligations referred to in art 3.1 and art 3.2 of the Hague-Visby Rules. The fact that the cargo damage occurred during carriage does, however, mean that the carriers must prove that they handled the cargo properly and carefully as referred to in art 3.2 of the Hague-Visby Rules, especially with regards to the stowage of the cargo. The question was whether the carriers, as they state, stowed the packets of timber in box-shaped ship’s holds, from one side of the ship’s hold to the other in a compact way and filled the holes between the packets so that they could not move, and securing was not necessary. It was not disputed (by the cargo interests) that this method of stowage, provided it is carried out properly, amounted to proper and careful handling of the cargo.