Deck cargo. When goods are carried on deck (“deck carriage”), they are exposed to the weather conditions; sea spray and seawater shipped on board the vessel.
The risk of loss or damage to the cargo is higher than if it was stowed “under-deck” within the cargo compartments and the carrier may wish to exclude or limit liability for loss or damage during carriage. The cargo interest and/or his insurers, on the other hand, may wish to be protected against loss or damage to cargo where deck carriage was not authorised. Sometimes deck carriage may be agreed between the shipper and the carrier because of the nature of the cargo, for example, a very large unit of cargo, such as a locomotive. It may also be an accepted manner of carrying the goods, as it is for containers.
Deck carriage can cause problems for both the carrier and the shipper in a number of ways. These depend on whether the deck carriage was agreed or not and also whether the carriage under the bill of lading is subject to the Hague-Visby Rules or the United Kingdom Carriage of Goods by Sea Act 1971 or the Hamburg Rules. In addition, the “Uniform Customs and Practice” (UCP 1983) on Bankers’ Commercial Credits states in Art. 28 that:
“(a) In the case of carriage by sea or by more than one mode of transport but including carriage by sea, banks will refuse a transport document stating that the goods are or will be carried on deck, unless specifically authorised in the credit.
(b) Banks will not refuse a transport document which contains a provision that the goods may be carried on deck, provided it does not specifically state that they are or will be loaded on deck.”
In the Hague-Visby Rules and Hague Rules, Art. II provides for the carrier’s responsibilities, liabilities, rights and immunities under every contract of carriage of “goods” by sea. Article III, r. 2 requires the carrier to deal with “goods” in a proper and careful manner. There are many other references to “goods”. However, if the word “goods” does not include a description of certain cargo, it would appear that these Rules do not apply to that cargo and thus the responsibilities, etc. of the carrier concerning goods do not exist. In the Hague-Visby Rules/Hague Rules “goods” includes “. . goods, wares, merchandise, and articles of every kind whatsoever except . . . cargo which by the contract of carriage is stated as being carried on deck and is so carried” (Art. I). This can be called “deck cargo.”
There are two conditions for cargo not to be regarded as “goods”: the document must state that the goods are carried on deck (not merely giving the carrier the liberty to carry the goods on deck) and the goods must be so carried. If the document does not state that the goods are carried on deck but the goods are actually carried on deck, the cargo may be “goods”. Alternatively, if the document states that the cargo is carried on deck but the stowage is under deck, the cargo may be “goods” and the carrier can be responsible. This can be confusing to carriers and shippers, especially concerning the liability of the carrier.
The United Kingdom Carriage of Goods by Sea Act 1971 provides that “deck cargo” is not excluded from the application of the Hague-Visby Rules. The Hamburg Rules also do not specifically exclude deck cargo as “goods”.
If the Hague-Visby Rules or Hague Rules do not apply, the carrier may use clauses in the bill of lading or other document, which is evidence of the contract of carriage to exclude or limit his liability. This would not be in breach of Art. III, r. 8, which renders null and void clauses which relieve the carrier from liability for loss or damage to or in connection with “goods”.
When cargo is carried on deck without agreement by the shipper or other cargo interests, this is “unauthorised deck cargo” and such carriage may cause the carrier to lose any benefits he may have had under the contract of carriage of goods by sea.
In The Chanda, 1989, it was said:
“. . . the perils of the sea exception is not available to the (carrier) since paragraph 608(3) expressly excludes any exemptions from liability where it is proved that the occurrence was the result of a circumstance for which the carrier is responsible: here the (carrier) was responsible on two separate counts, namely stowing on deck in a position of maximum exposure when the proper mode was to stow under deck, and inadequate lashing.”
(The reference to “paragraph” is the relevant paragraph in the “German Commercial Code” which incorporates parts of the original Hague Rules. The paragraph provides that the exemption from liability of a carrier is restricted as described by the judge. The cargo that was badly damaged was a control cabin containing sophisticated electronic and computer equipment.) In The Chanda, the judge held that
” clauses which are clearly intended to protect the Shipowner provided he honours his contractual obligations to stow goods under deck do not apply if he is in breach of that obligation.”
The legal position of carriers under bills of lading when unauthorised deck cargo is carried has been established in the old case of Royal Exchange,Shipping Co. Ltd. v. Dixon, 1886, in which a cargo of cotton was carried on deck, the bills of lading for part of the cargo specifying “under deck” stowage. The deck cargo was carried in breach of the contract and were not within the exceptions specified in the bills of lading, which made specific reference to the goods being safely stowed under sleek.
As the UCP, Art. 28(b), indicates, a transport document, including a bill of lading, may give the carrier the liberty to carry the goods on deck. Such clauses are found in many bills of lading and come under a general name of “liberty clause”. A liberty clause is not the same as one stating explicitly that the goods are carried on deck. A liberty clause when cargo is actually carried on deck may not cause the goods to fall foul of the exclusion under the definition in Art. I of the Hague-Visby Rules. However, the clause may be invalidated under Art. III, r. 8. Whether or not the Hague-Visby Rules apply, the deck carriage may be unauthorised and the carrier may be prevented from relying on any protection clauses in the contract of carriage.
While the Hamburg Rules do not specifically exclude “deck cargo” as “goods”, the Rules devote a complete Article to matters related to deck cargo. Article 9 “authorises” deck carriage only with the agreement of the shipper or with the usage (custom) of the particular trade or if required by the law. The second condition would concern containers and the third would probably relate most commonly to certain classes of “dangerous goods” and the regulations contained in the International Maritime Dangerous Goods Code, published by IMO and implemented by many countries’ domestic legislation.
If the goods are agreed to be carried on deck an express statement must be inserted in the bill of lading. Without such a statement the carrier may be unable to prove the earlier agreement. In any case, any such agreement cannot be used as evidence if the bill of lading has been acquired by a third party including a consignee: Article 15, r. 1 (m) provides that a bill of lading must include a statement, if applicable, that goods shall or may be carried on deck. This seems to imply a “liberty clause”. It is uncertain, because the Hamburg Rules are not in force, whether this statement would be evidence of such an agreement.
The liberty statement may not be a statement that the cargo is actually carried on deck. If deck carriage is unauthorised, the carrier is liable for loss or damage or also delay in delivery resulting from the deck carriage. Unauthorised carriage may result in the carrier’s being unable to limit liability.
Therefore there are very serious consequences for the carrier of unauthorised deck carriage. Not only can the carrier lose any protection under the Hague-Visby Rules or Hague Rules or even the Hamburg Rules and also under any other contract of carriage of goods by sea, but also, especially if the carrier is a shipowner, he may not be covered for liability by his Mutual Association. Many “P. & I. Clubs” do not provide cover for liabilities arising from unauthorised deck carriage.