The plaintiff insurer brought a claim against the defendant shipowner of the Hope 1 in respect of its insureds' cargoes of sheets of Indonesian plywood imported into the UK, which arrived in a severely damaged state. The plaintiff argued that the defendant was responsible for the deficiencies and damage to the goods. The plaintiff had paid the insured consignees for the damage which they had suffered, and was therefore subrogated into their rights in accordance with the insurance policy and the law.

The defendant argued that it was not the legitimate defendant in this case. There was no legal relationship between the plaintiff and the defendant, and the defendant owed no contractual obligations to the plaintiff. If the Court decided that there was any legal relationship between the parties on the basis of the bills of lading covering the goods in question, the plaintiff's claims had already prescribed according to law. In the alternative, the Court had no jurisdiction because of the exclusive jurisdiction clause in the bills of lading in favour of the courts of the country in which the 'carrier' has its 'principal place of business', which was outside Malta. In the alternative, any liability on the part of the defendant was excluded by the Hague Rules, in particular art 4.5 [sic: 4.2.n] of the Rules, which deals with damage resulting from insufficiency of packing, for which the carrier is not liable. Further in the alternative, any liability of the defendant was also limited according to the bill of lading in question (ie the Hague Rules) and/or according to Pt IX of Ch 234 of the Laws of Malta (the LLMC 1957).

Held: Judgment for the defendant. The claim against the defendant is dismissed.

On 21 October 1997 the defendant, as the owner of the relevant vessel, entered into a time charter for 80-90 days with Pan Ocean Shipping Co Ltd (Pan Ocean). The defendant conceded that with time charterparties it was generally the owner of the vessel who was bound by the contract of carriage of goods, in so far as the master entered into the contract of carriage or issued the bill of lading. However, the defendant alleged that in this case it was the charterer, Pan Ocean, who had assumed responsibility for the carriage of the goods and who was consequently liable for damage suffered by the shippers or consignees.

The Carriage of Goods by Sea Act (Ch 140 of the Laws of Malta) defines 'carriage of goods' in art 1.e as 'the period from the time when the goods are loaded on to the time they are discharged from the ship'. In art 1.b of the Schedule to Ch 140, 'contract of carriage' refers only 'to contracts of carriage covered by a bill of lading or any similar document of title, in so far as such document relates to the carriage of goods by sea, including any bill of lading or any similar document as aforesaid issued under or pursuant to a charter party from the moment at which such bill of lading or similar document of title regulates the relations between a carrier and a holder of the same'. According to art 1.a of the same Schedule the 'carrier' may be the shipowner or charterer who enters into a contract of carriage with a shipper. In fulfilment of its obligations, the carrier, whether owner or charterer, is required to make the vessel suitable for the sea voyage, properly equip the vessel with its crew, gear, and equipment, and make the holds and any other part of the ship in which the cargo is carried fit and proper, so that the cargo can be stowed, carried, and protected. Failing that, the carrier is liable for loss or damage to the goods.

From an examination of the bills of lading, which after all provide evidence of the contract of carriage, it appears that it was Pan Ocean who contracted with the various shippers for the carriage of the goods in question. The bills of lading were issued on a form bearing the name Pan Ocean, while the name of the shipowner, ie the defendant, did not appear anywhere. These same documents were signed by the agent of Pan Ocean, and although in box 34, where the signature of the agent appears, the words 'for Master' are printed, it appears that the master was completely uninvolved in the issuing of these documents.

It is true, as the plaintiff points out, that cl 30 of the bills of lading identifies the carrier as 'the owner of the vessel', and that is the defendant. However, this Court agrees with the defendant's submission that in using standard form contracts, the boilerplate terms may be varied by what is signed elsewhere on the same document. From this perspective, the Court, having regard to all the facts of the case, has no hesitation in finding that there can be no doubt as to what is on the front of the bills of lading. It is clear that the contract of carriage was being entered into with Pan Ocean, and no-one else. The defendant's objection is therefore upheld.

[For the partially successful appeal to the Court of Appeal, see Manduca NOE v Sun Maritime Ltd (CMI1894).]