CHAPTER 31 DECK CARRIAGE Prof. William Tetley, Q.C. INDEX I.

Introduction 1) Hague or Hague/Visby Rules 2) Definition of under deck II. Clean Bill of Lading Means Below Deck 1) The basic principle 2) Custom 3) Express agreement 4) Implied consent 5) Containers and deck carriage 6) Application of the Rules and deck cargo III. The Consequences of Deck Carriage 1) Deck carriage so declared 2) Unstated deck carriage - The Hague Rules 3) Deck cargo - reasonableness 4) Unstated, but bill of lading in error 5) Goods on deck and later below IV. General Clauses Permitting Deck Carriage 1) General clauses is not a statement 2) Various erroneous judgments 3) Deck carriage is improper stowage 4) The commercial argument V. Consent of the Shipper 1) Consent, knowledge or acquiescence

2) Acquiescence - previous shipments 3) The bill is not the whole contract VI. Statement that the Hague Rules Apply to Deck Cargo VII. France - Deck Carriage 1) Domestic and residuary regime 2) The Visby Rules VIII. The Visby Rules IX. The Hamburg Rules 1) Introduction 2) Right to carry on deck 3) "Agreement" and "Statement" 4) The sanction 5) "Express agreement"

CHAPTER 31 DECK CARRIAGE I. Introduction 1) Hague or Hague/Visby Rules Deck cargo, which is stated in the contract of carriage as being carried on deck, is not subject to the Hague or the Hague/Visby Rules. One arrives at the foregoing conclusion from a reading of art. 1(c) and art. 3(8), which forbids contracting out of the Rules, and art. 2 which governs carriage of goods. Art. 1(c) defines "goods" as "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." (Emphasis added) In consequence, the carrier is free to rely on non-responsibility clauses in the bill of lading, while neither the carrier nor the shipper may benefit from or be subject to the Rules, provided that: a) the bill of lading on its face states that the goods are carried on deck, and b) the cargo is in fact carried on deck. 2) Definition of under deck Under deck means not exposed to the elements; in other words, the cargo is completely protected by the ship's structure.(1)

II. Clean Bill of Lading Means Below Deck 1) The basic principle It is a basic principle that a clean bill of lading, both before and since the Hague and the Hague/Visby Rules has always meant that the cargo is to be carried below deck.(2) In other words, where the carrier contracts to carry goods without describing the actual place of stowage, it is understood that the goods are carried under deck. This principle must be recognized in any consideration of deck cargo and the Rules. Unfortunately, there is nothing in the Rules specifically stipulating that a clean bill of lading means under deck carriage. It would have been fitting to have included such a requirement in art. 3(3), although under deck stowage is assumed in art. 3(2), where the carrier is obliged to stow "properly". 2) Custom Before the adoption of the Hague Rules, it was customary in certain trades to carry goods on deck, and mention of deck carriage was not required on the bill of lading.(3) This preHague Rules principle has little basis for application now, because the Rules are not silent, but state, at art. 1(c), "which by the contract of carriage is stated as being carried on deck". Some courts(4) and authors(5) erroneously take the position that the principle of custom in respect to deck cargo still exists, although the Rules stipulate just the opposite, namely that the "contract of carriage" must have stated "that goods were being carried on deck". The standard formulation of this erroneous viewpoint, found particularly, but not exclusively,(6) in American decisions, is: "Absent an express agreement by the shipper permitting cargo to be stowed on-deck or a general port custom permitting on-deck stowage, a shipper is entitled to expect below-deck stowage under a clean bill of lading."(7) (Emphasis added). There is also a tendency to extend the "custom" exception to include trade, as well as port, customs. In Konica Business Machines, Inc. v. Sea-Land Consumer,(8) for example, the Ninth Circuit held: "Absent express agreement or a general port or trade custom, stowage above deck is a deviation and the carrier cannot rely on liability limitation clauses in the bill of lading." (9) (Emphasis added) 3) Express agreement The burden of proving that the shipper agreed to on-deck stowage falls upon the carrier(10) and is sometimes onerous. Even where the bill of lading, on its face, provides for on-deck stowage, it may not necessarily reflect the shipper's true express agreement to such carriage. In Ingersoll Milling Machine Co. v. M/V Bodena, for example, the Second Circuit held that the initial oral communications between the parties in effect contemplated under-deck carriage, because on-deck carriage was not specifically agreed to. The subsequent act of the carrier's port agent, prior to sailing, in adding to the face of the bill of lading form (prepared previously by the shipper's freight forwarder) the notation "on deck shipper's risk", was held insufficient to displace the original, oral, under-deck agreement. Even the fact that the shipper and its freight forwarder had received copies of the bill of lading containing the on-deck notation after the ship set sail (thus giving them "constructive notice" of the deck carriage) made no difference. The Court held:(11) "A carrier cannot impose on-deck stowage on a shipper merely by including a notation in the bill of lading which it delivers after the voyage commences. To allow a carrier after

the fact to impose on the shipper an unauthorized change of terms would run counter to the general propositions that, without its contrary agreement, a shipper is entitled to expect below-deck stowage." The express agreement of the shipper which justifies deck carriage, therefore, must not only be recorded on the face of the bill of lading, but must also be a genuine, informed consent, and one given prior to sailing. And, of course, the express agreement must be clear and in the bill of lading, rather than any other document.(12) 4) Implied consent It is sometimes held that a freight forwarder who acts as an agent of the shipper and who knows of the on-deck carriage practices of the carrier can in effect tacitly consent to deck carriage on the shipper's behalf.(13) The freight forwarder is then said to have apparent authority to bind the shipper to a deck carriage contract. This position is fraught with difficulties, however. In the first place, a freight forwarder concluding a contract of carriage does not necessarily act an agent of the shipper. A freight forwarder may act rather as an agent of the carrier(14) and in many cases functions as an independent contractor.(15) In order for the forwarder to be considered an agent of the shipper, it is not sufficient that the shipper merely select the forwarder to arrange the shipment on his behalf; it is also necessary that the shipper control the manner in which the forwarder performs his duties.(16) Even where the shipper in fact exercises such control over the forwarder's performance, so that the forwarder is really his agent, the mere fact that the forwarder knows of the carrier's deck carriage practices should not be deemed to constitute implied consent of the shipper to such carriage, in the absence of a clear "on deck" statement on the face of the bill of lading.(17) Art. 1(c) of the Hague and Hague/Visby Rules and sect. 1(c) of U.S. COGSA 1936 still require that the goods be "stated as carried on deck" in order for them to be exempt from the regime of the Rules and the statute. 5) Containers and deck carriage Certain container ships are especially equipped to carry containers both under deck and on deck. Yet containers on deck are at greater risk than those under deck, or at least it would seem that those containers which are swept or slide overboard have always been those carried on deck.(18) Shippers and consignees are therefore entitled to know where their containers are loaded because of the increased risk of deck carriage. It is noteworthy as well that certain containers require special stowage because of the nature of the cargo; for example, certain ventilated, heated or refrigerated containers may require under-deck stowage while others cannot be carried under deck. Because of the advent of containers and modern container ships, a legal dilemma has arisen. May containers be carried on deck without the consent of the shipper and without a statement on the face of the bill of lading or should the law be strictly observed? The Hague and Hague/Visby Rules at art. 1(c) make no exception for containers. As a consequence, the domestic law of France was amended on December 21, 1979 providing an exception for containers at art. 22 second para.(19) [Translation] "The consent of the shipper is presumed to have been given in the case of containers carried on board ships appropriately equipped for this type of carriage."

Similarly the drafters of the Hamburg Rules(20) at art. 9(1) have permitted deck carriage without the agreement of the shipper, in the case of "usage of the particular trade", which presumably could include containers on container ships. The absence of similar provisions in the Hague or Hague/Visby Rules confirms the conclusion that containers carried on deck under the Hague or Hague/Visby Rules must be so declared on the face of the bill of lading, to protect the carrier from the consequences of fundamental breach. Some courts, however, have taken the position that even without an express amendment to international conventions, or national legislation such as that enacted in France, deck stowage of containers on specially-designed container-carrying vessels is justified deck carriage(21) and not an unreasonable "quasi-deviation" or a fundamental breach of contract depriving the carrier of the Hague limitations. Such carriage is often held to be customary(22) or, at any event, "reasonable", based on the notion that aboard container ships "technological innovation and vessel design may justify stowage other than below deck"(23). Safety concerns relating to the cargo or the containers themselves are sometimes also invoked to support the "reasonableness" of deck carriage.(24) While the design of modern container carriers may make deck carriage of such "boxes" less risky than previously, the risks have not been totally eliminated, as the case law amply demonstrates. Whether such carriage is truly "reasonable" therefore remains highly debatable in fact,(25) with the burden of proving "reasonableness" falling upon the carrier.(26) In law, moreover, neither the Hague nor the Hague/Visby Rules nor U.S. COGSA 1936 have been amended so as to change what was always deemed an unreasonable deviation or quasi-deviation, or fundamental breach of the contract, into valid performance of it. In consequence, the law governing deck carriage has been thrown into considerable confusion by judgments upholding undeclared deck stowage of containers as customary and/or reasonable.(27) If carriers truly believe that on-deck carriage of containers aboard container ships today is no more dangerous than their under-deck transportation, they should agree in their bills of lading to subject such deck carriage to the Rules or to COGSA, which apply by force of law to carriage below deck. Alternatively, if carriers (and/or the shipping conferences to which they belong) insist on obtaining exemptions from, or limitations of, liability which the Rules or COGSA would not permit, in respect of loss or damage befalling containerized deck cargo, they should clearly state the fact of such carriage on the face of their bills of lading before the commencement of the voyage, so as to give cargo interests fair notice of the terms of carriage, in order that they may purchase adequate insurance for their shipments. 6) Application of the Rules and deck cargo The Hague and Hague/Visby Rules therefore apply in each of the following cases: a) where cargo is carried under deck and a clean bill of lading is issued; b) where cargo is carried under deck but the bill of lading states that the cargo is carried on deck; c) where cargo is carried on deck and is stated on the bill of lading as being carried on deck, but the bill of lading, by a special clause, applies the Rules to deck cargo;(28)

d) where cargo is carried on deck, but the bill of lading is clean.(29) The carrier in this case commits a fundamental breach and should not benefit from the exception clauses of the bill of lading or the Hague and Hague/Visby Rules. The Hague and the Hague/Visby Rules do not apply when cargo is carried on deck and the face of the bill of lading states that the cargo is on deck.(30) III. The Consequences of Deck Carriage 1) Deck carriage so declared The effect of deck carriage of goods so declared in the bill of lading, is that the Hague and Hague/Visby Rules do not apply.(31) Consequently, the common law or civil law, which governs the contract, applies and the carrier may invoke those bill of lading clauses which are contrary to the Rules but which are acceptable under the less rigid law of the contract.(32) Nevertheless, if the goods are carried on deck, carriers are still obliged to properly load, stow, care for and discharge the cargo.(33) The Harter Act(34) applies to internal shipments in America, and there is no exception for deck cargo under that Act. The carrier is therefore obliged by statute to use "proper ... care" in carrying deck cargo like any other cargo. In Globe Solvents Co. v. SS. California(35) it was held that: "The right to stow libellant's cargo on deck (by virtue of an Act of Congress and regulations issued pursuant thereto) did not relieve the respondent from the obligation to use reasonable care in reducing that risk to a minimum, which degree of care the respondent failed to exercise." The carrier used only three inches of dunnage when two to seven inches of sea washing over the deck was expected. The Court held the carrier responsible, because the dunnage should have been eight to ten inches. The bill of lading bore the stamped notation, "loaded on deck owner's risk of damage or loss", but this was held invalid, being contrary to public policy and to the Harter Act. 2) Unstated deck carriage - The Hague Rules On the other hand, if goods are in fact carried on deck when there is no statement on the face of the bill of lading that they are carried on deck, then the carrier may not invoke any of the limitations in the contract or of the Hague Rules which might benefit him, because there has been a fundamental breach of the contract.(36) United States courts have considered undeclared deck cargo to be a quasi-deviation. Thus in Encyclopaedia Britannica v. Hong Kong Producer,(37) the U.S. Court of Appeals held that on-deck carriage of a container without a notation on the bill of lading was a deviation which deprived the carrier of the $500 per package limitation. In Sealane,(38) despite having issued clean, unclaused bills of lading, and despite the absence of a custom permitting deck carriage, the carrier stowed a cargo of explosives on deck, which was subsequently lost in heavy weather. The Fifth Circuit held that such stowage constituted an unjustifiable deviation. Although Coast Guard Regulations, of which the shipper was aware, permitted explosives to be stowed on deck, the carrier was not obligated to do so. By not stating on the bill of lading that the explosives would be

carried on deck, the carrier fundamentally breached the contact when it so carried them. Consequently, it was, fully liable for the loss, which was directly and causally related to the deck carriage. In Calmaquip v. West Coast Carriers Ltd.,(39) the carrier had agreed to transport seven airport loading bridges from Miami to Panama. The shipper had specifically directed the carrier to ship the cargo below deck and the bill of lading also specified below deck stowage. Upon arrival, the bridges were found to have been damaged. The Fifth Circuit held that the on deck-stowage of the cargo, contrary to the specifications on the bill of lading, constituted an unreasonable deviation and the carrier could not benefit from the limitations and exclusions under the contract and COGSA. In Constructores Tecnicos, S. de. R. L. v. Sea-Land Service, Inc.,(40) a truck was lashed to a flatrack open container and stowed on deck. The vehicle became a total loss when lashings on a nearby container broke during bad weather at sea and the container tumbled over into the truck. The bill of lading did not indicate whether the truck was to be loaded on or below deck. The Court held that the deck carriage was an unreasonable deviation because there was no evidence that the shipper had expressly consented to such carriage, nor was that carriage justified by any port custom. Nor had the freight forwarder any apparent authority from the shipper to agree to the carrier's loading practices, because the forwarder was not subject to the shipper's control as to the manner of performing its duties, and therefore was not the shipper's agent, but rather an independent contractor. The under-deck presumption resulting from the issuance of the clean bill of lading was therefore not counteracted, and both the charterer and shipowner were held liable for this unreasonable deviation, beyond the $500 package limitation of U.S. COGSA. Courts of the world have usually followed the rule that unstated deck carriage results in the carrier losing the benefits of the exemptions in the Hague Rules and the contract.(41) There have been some exceptions, however.(42) 3) Deck Cargo -Reasonableness Unstated deck carriage is a fundamental breach or a quasi-deviation. Geographic deviation, by art. 4(4) of the Hague or Hague/Visby Rules, if "reasonable", is not a fundamental breach and it has been argued that deck carriage being a quasi-deviation, if reasonable, is not a fundamental breach of the contract or of the Hague or Hague/Visby Rules. Thus it has been argued, that containers could be reasonably carried on deck under certain circumstances.(43) This argument ignores that the Rules specifically stipulate that deck cargo must be "stated" as being carried on deck by art. 1(c). Therefore even if the "reasonable" criterion of geographic deviation may be applied to deck carriage, the criterion cannot contradict the explicit terms of art. 1(c) of the Hague Rules. Thus the bill of lading must contain a statement of on-deck carriage before the reasonableness criterion can be applied to deck cargo. 4) Unstated, but bill of lading in error If deck carriage was agreed upon, but a clean bill of lading was issued in error, then, as between the original parties (shipper and carrier), the carrier may show that a clean or under deck bill of lading was issued in error and that the parties had in fact agreed to stowage on deck.(44) 5) Goods on deck and later below It has been held, that where goods were stowed on deck and then, in the course of the

voyage, restowed under deck and the contract was not severable, that the Hague Rules applied to the whole contract of carriage.(45) IV. General Clauses Permitting Deck Carriage 1) General clause is not a statement Confusion has arisen over printed clauses in bills of lading presumably permitting deck cargo. These clauses known as general liberty to carry on deck clauses might read: "Carrier has liberty to carry goods on deck." Deck carriage liberty clauses also frequently give the carrier the option of stowing the cargo either on or under deck, while also exempting the carrier from all liability for loss of or damage to cargo stowed on deck.(46) A clause of this type is valid only if the goods are carried on deck and the carrier has "stated" on the face of the bill of lading that the goods are carried on deck.(47) To call such a liberty or permissive clause a "statement" within the terms of art. 1(c) which reads: "is stated as being carried on deck", is to do violence to the English language and the whole economy of the Rules.(48) A leading decision on general liberty clauses to carry goods on deck is St. Simeon Navigation Inc. v Couturier & Fils Lte,(49) where the Supreme Court of Canada held that a general liberty clause does not constitute a statement that the goods are actually carried on deck: "a provision that goods stowed on deck shall be deemed to be stated as so stowed, without any specific statement to this effect, is in violation of the Rules." In The Chanda,(50) a case, governed by the Hague Rules as enacted by West Germany, a large and expensive piece of computerized equipment was carried on deck and was damaged during a storm at sea. A clause of the bill of lading permitted deck carriage, also specifying that the carrier would have the benefit of the immunities, exceptions and limitations of liability with respect to on-deck cargoes as if they were carried below deck. The shipper, however, had not consented to deck carriage, because the relevant boxes on the bill of lading referring to the clause had not been ticked. The carrier invoked the clause to claim the benefit of the German Hague Rules package limitation of DM1250. Hirst J. found this "package limitation clause" incompatible with several older decisions denying effect to exclusion clauses in deck carriage situations.(51) He held that these older decisions did not rest "...on the discredited fundamental breach rule", but rather on "a principle of construction... that clauses which are clearly intended to protect the shipowner provided he honours his contractual obligation to stow goods under deck do not apply if he is in breach of that obligation."(52) He continued:(53) "I am satisfied that the package limitation clause falls fairly and squarely within this category, since it can hardly have been intended to protect the shipowner who, as a result of the breach, exposed the cargo in question to such palpable risk of damage. Otherwise the main purpose of the shipowners' obligation to stow below deck would be seriously undermined...." In France, the Cour de Cassation,(54) in a case governed by the Hague/Visby Rules, observed that the general liberty to carry on deck clause printed on the rear of the bill of

lading did not indicate whether or not the carrier would actually exercise the deck carriage option. In addition, the clause did not require the consent of the shipper to such carriage (even a posteriori). The clause therefore did not suffice to authorize the deck carriage of three open-top containers, in the absence of the express authorization of the shipper to such carriage. The carrier was consequently held liable for the resulting damage to the cargo, which would not have occurred but for the carriage above deck, and therefore could not benefit from either the liberty clause or the peril of the sea defence of art. 4(2)(c) of the Hague/Visby Rules. Commenting on this importance of the decision for French maritime law, Pierre Bonassies observed:(55) "(translation): Henceforth, things are clear: whatever the clauses of a bill of lading may be, if it does not expressly mention that the goods are in fact carried on deck, that statement normally resulting from the entry on the face of the bill of lading of the words 'en ponte' (on deck), the carriage remains subject to the provisions of the Convention of 1924, with all the consequences which that entails - and notably, the nullity of any clause limiting the liability of the carrier." (Emphasis in original) In Belgium, the same view prevails. It has been held there that, except where vessels are specially equipped to carry goods on deck, the bill of lading holder is entitled to expect that the goods will be carried below deck.(56) the carrier who fails to mention on the bill of lading that containers are carried on deck commits a "fault" in relation to the "holder in due course" of the bill of lading. It gives rise to a presumption of liability, precluding the carrier from relying on the clauses of art. 91 of the Belgian Maritime Law(57) (the Hague/Visby Rules) and clauses in the bill, including the liberty clause. Such deck carriage is a "breach of confidence" of the holder in due course of the bill, even where carriage by sea is being effected using container vessels on which all cargo is in practice carried on deck.(58) A general liberty clause is an option, not a statement.(59) The problem arises when the bill of lading contains a general liberty clause, but the face of the bill of lading does not state that the cargo was loaded on deck. Under such circumstances, it would appear that deck carriage is unjustifiable for at least three reasons: a) The general liberty to carry on deck clause is merely an option to carry on deck, a choice which the carrier ordinarily does not have. If the bill of lading does not bear a statement on its face giving notice that the cargo is actually on deck, then by default the option has been exercised in favour of under deck carriage. This was the position taken by the U.S. Supreme Court in Schooner St. Johns N.F.(60) b) The typewritten or handwritten wording on the face of a bill of lading has precedence over the bill's printed clauses.(61) And a clean bill of lading, because it implies underdeck stowage, is functionally equivalent to a typewritten or handwritten notation on the face of the document calling for carriage below deck. A clean bill of lading therefore overrides the printed liberty to carry on deck clause. c) To consider a printed general liberty clause valid, absent a statement that the cargo would actually be carried on deck, would attempt to give effect to a non-responsibility clause hidden among the other clauses of the bill of lading. Yet such a non-responsibility clause would be invalid under art. 3(8) of the Hague or Hague/Visby Rules. A general deck carriage clause without a statement on the face of the bill of lading that cargo is carried on deck is merely an option not exercised(62) and the deck carriage is therefore a fundamental breach of the contract and the Rules. The remarks of Lord Atkin in Foscolo, Mango & Co. v. Stag Line Ltd.,(63) although referring to an unreasonable

geographic deviation, rather than to unauthorized deck carriage, are nonetheless fitting: "... I find no substance in the contention faintly made by the defendants that an unauthorized deviation would not displace the statutory exceptions contained in the Carriage of Goods by Sea Act. I am satisfied that the general principles of English law are still applicable to the carriage of goods by sea except as modified by the Act, and I can find nothing in the Act which makes its statutory exceptions apply to a voyage which is not the voyage the subject of the 'contract for the carriage of goods by sea' to which the Act applies." In Svenska Traktor Aktiebolaget v. Maritime Agencies (Southampton)Ltd.,(64) the bill of lading contained a combined general liberty, non- responsibility clause, which read: "Steamer has liberty to carry goods on deck and shipowners will not be responsible for any loss, damage, or claim arising therefrom." The Court held, properly, that the general liberty portion of the clause was not a "statement" within the terms of art. 1(c) of the Rules.(65) The Court also correctly concluded that, since the Rules were applicable, the non-responsibility portion of the clause was void, being repugnant to art. 3(8). However, the Court did not find that the carrier had fundamentally breached the whole contract by carrying part of the cargo on deck; nor did it find that the general liberty portion of the clause was repugnant to art. 3(8). Instead, the Court allowed the carrier to benefit under the Rules and would have exculpated it under the perils of the sea exception if a peril had been proven. The Court also concluded that the deck carriage in this case was a breach of the carrier's obligation under art. 3(2) to properly and carefully stow and carry the goods, and consequently the carrier was liable for the loss of the deck cargo resulting from that breach. It is submitted that the unjustified deck carriage in Svenska Traktor fundamentally breached the contract and, therefore, the carrier could not benefit from the limitations and exceptions under the contract or the Rules if the loss was related to the deck carriage. This is the position now generally taken in respect to general liberty clauses permitting deck carriage.(66) 2) Various erroneous judgments Other judgments of questionable authority in respect to general liberty deck carriage clauses are Armour & Co. Ltd. v. Leopold Walford (London) Ltd.(67) and Peter Helms.(68) The first decided the question under the pre-Hague Rules law in Great Britain. The second, a very brief American decision, which apparently was also based on pre-Hague Rules law, erroneously distinguished itself from Schooner St. Johns N.F.,(69) held that a bill of lading containing a printed general liberty clause was not a "clean" bill of lading and therefore the carrier could exercise its option to stow on deck. The United States Supreme Court, in Schooner St. Johns N.F., had held that the contract of carriage was the freight reservation and the bill of lading taken together, and, although the freight reservation contained a general liberty deck carriage clause, by issuing a clean bill of lading, the carrier had declared that it had exercised its option in favour of belowdeck carriage. In other words, the option to carry on deck was not exercised. In Givaudan Delawanna Inc. v. S. S. Blijdendijk,(70) a general liberty clause was held to be sufficient notice to subsequent holders of the bill that the goods were stowed on deck. Here again, the meaning of the Supreme Court in Schooner St. Johns N.F was misunderstood. In Guadano v. S.S. Cap Vincent,(71) containers were carried on deck although the bill of

lading was clean. A clause in the bill of lading read: "It is mutually agreed that goods shipped under this Bill of Lading and stowed in containers may be carried on deck and for purposes of General Average be treated as to be stowed under deck." The Court held that containers could be carried on deck when this is the usual carrying place on the ship. On the other hand the Court also found insufficient packing for the furniture in the containers and exculpated the carrier under art. 4(2)(n) of the Hague Rules. Whether the damage would have resulted if the furniture had been carried below deck is not fully answered. Another questionable decision is Aetna Insurance Co. v. M/V Lash Italia,(72) where vehicles were carried aboard a LASH barge on the deck of a ship, contrary to an express term of the bill of lading calling for under-deck carriage. The Court nevertheless held that there was no unreasonable deviation, because a clause in the bill of lading provided: "goods stowed in poop, forecastle, deck-house, shelter deck, passenger space, storeroom, or any other covered in space shall be deemed to be stowed under-deck for all purposes." (emphasis added). The findings in Armour & Co. Ltd. v. Leopold Walford (London) Ltd., The Peter Helms, Delawanna Inc. v. S.S. Blijdendijk, and Guadano V. S. S. Cap Vincent are or would be erroneous under the Hague or Hague/ Visby Rules, for the three reasons set out above, which may be recapitulated as follows: a) A general liberty clause to carry on deck is an option, which, when exercised in favour of on deck stowage, must be so declared in a statement to that effect on the face of the bill of lading. b) A printed clause among general bill of lading clauses cannot contradict or supplant the clean face of a bill of lading. Typewritten clauses or the absence of typewritten clauses have precedence over printed clauses. c) To permit a general liberty clause is, in effect, to permit a non-responsibility clause contrary to art. 3(8) of the Rules. 3) Deck carriage is improper stowage To the above three reasons must be added the duty of the carrier under art. 3(2) to stow the goods properly. Deck carriage is improper stowage and thus contrary to art. 3(2).(73) Even where under-deck carriage is impossible in practice, either because the vessel lacks any holds, or because the cargo, owing to its size or nature, cannot physically be carried below deck, or cannot be carried there safely, on-deck stowage under a "clean" bill of lading is nevertheless improper. A bill of lading issued in such a case without any "on deck" notation on its face is still a "clean" bill of lading, importing below-deck carriage. A general liberty to carry on deck clause in such a bill is still only an option and does not replace a clear statement of deck stowage on the bill's face. The merchandise stowed on deck under such a bill still constitutes "goods" within the meaning of art. 1(c) of the Hague and Hague/Visby Rules, thus making the Rules applicable. A clean bill of lading is evidence of the carrier's receipt of the cargo "as therein described" (art. 3(4)), which includes its presumed under-deck stowage. While the clean bill may be contradicted by the carrier vis--vis the party who contracted for the carriage (usually the shipper) because that party is (presumably) aware of the on-deck stowage, once the bill is

transferred to a third party holder in good faith (a consignee, an endorsee or a bank) who is unaware that on-deck carriage was the only practical possibility, the bill becomes irrebuttable evidence of the carrier's receipt of the goods "as therein described", i.e. as deemed under-deck cargo. In consequence, where the goods are lost or damaged during the ensuing voyage as a result of their carriage above deck, the third party holder of the bill should still be able to break the Hague and Hague/Visby limitations on grounds of fundamental breach (unreasonable deviation), resulting from the unstated, and therefore unjustified, deck carriage. Where deck carriage is the only realistic option, the carrier, before the vessel sails, should clearly state on the face of the bill of lading that the cargo is stowed above deck. The carrier can thus lawfully avoid the application of the Hague or Hague/Visby Rules, in favour of purely contractual liability limitations and exceptions.(74) At the same time, cargo interests, being properly notified of such carriage before sailing, may seek adequate insurance cover for their goods. And the carrier will not be responsible to bona fide third party holders of the bill of lading who relied on the clean bill of lading to their detriment. 4) The commercial argument A general liberty to carry on deck clause is not beneficial to the shipping industry or to the world of commerce. It is a secret, open ended option. It is a non-responsibility clause and not a statement. The carrier, for its part, may always protect itself by stating on the face of the bill of lading that a cargo is carried on deck. Carriers are reluctant to make such a declaration, because banks and financial institutions may not accept the bill of lading as "clean"; carriers also face the wrath of their client, the shipper. Thus the clean bill of lading, with a general liberty clause among the many clauses, is usually a deliberate dissimulation. The practice should not be condoned by the courts; rather, they should follow the lead of Woosey J. in Italian Importing Co. v. Navigazione Libera Triestina (Carso)(75) who held that: "A bill of lading is a document of dignity and Courts should do everything in their power to preserve its integrity in international trade, for there, especially, confidence is of the essence." V. Consent of the Shipper 1) Consent, knowledge or acquiescence The courts at times have said that, although the bill of lading does not state that the goods are carried on deck, the consent or knowledge of the shipper as regards deck carriage is sufficient to permit valid deck carriage.(76) It is submitted that knowledge, oral consent or acquiescence may not contradict a specific provision of a statute requiring a statement that goods are being carried on deck, which statement must be in the contract of carriage. In Encyclopaedia Britannica v. Hong Kong Producer,(77) the short form bill of lading was clean and referred only to the long form bill of lading, which was also clean but which contained a printed general liberty clause permitting on deck carriage. This was held to be insufficient by the Second Circuit in respect to a container carried on deck even though the shipper had previously dealt with the carrier. In St. Simeon Navigation v. A. Couturier & Fils,(78) a general liberty clause in the bill of lading provided that any cargo stowed on deck would be deemed to have been declared

as so stowed and that the carrier was not responsible for any loss to the goods on deck from any cause whatsoever including negligence or unseaworthiness of the ship. There was no statement on the face of the bill of lading that the goods were actually carried on deck. It was held by the Supreme Court of Canada that the general liberty clause to carry on deck was not a "statement" under art. 1(c) of the Rules. The Court also gave short shrift to the argument that the shipper had consented to, or knew of the deck carriage. Rather it was held that the loss had been caused by the high stacking of the cargo and the carrier was therefore unable to benefit from the non-responsibility clause. In Rosenbruch v. Amer. Export Isbrandtsen Lines,(79) the shipper prepared the bill of lading and the carrier deleted the words "Stow under deck only" and then returned the bill of lading to the shipper. The container was stowed on deck and was lost overboard. The Second Circuit held that the deleted words were not part of the contract of carriage. The Court also held without much explanation that the "under deck" clause was prohibited by the "Tariff Rules and Regulations" of the North Atlantic Conference of which the carrier was a member and which Tariff was incorporated by reference into the bill of lading. Thus it was not an unreasonable deviation to have stowed on deck. The Court did not go so far as to say that the Tariff took precedence over the law but gave effect to the proposition all the same. (This is a very questionable decision.) In English Electric Valve Co. v. MV Hoegh Mallard,(80) the on-deck stowage of an open top, over-height container was found to be both customary and reasonable. In addition, the Court held that the shipper's consent to that stowage could be inferred both from the tariff rates, which applied only to on-deck stowage, as well as from the bill of lading, which reserved to the carrier the option to carry containers on deck. Thus the shipper was held to have had "actual notice" of the stowage method, as well as "notice through prior practice" that on-deck stowage was usual on the route concerned. Another similar decision of questionable merit is Alternative Glass Supplies v. MV Nomzi,(81) where the Court found that the deck carriage of containers was not an unreasonable deviation, because the tariff rules of the liner conference to which the carrier belonged prohibited its members from accepting specific instructions with regard to the stowage of containers aboard their vessels, and permitted those carrier to carry containers on or below deck without notice to the shipper. In Sheerwood et al. v. The Lake Eyre et al.,(82) the shipper, in his discussions with the ship's agents concerning the shipment of personal effects from Toronto to Australia, insisted that the goods be stowed below deck but the ship's agents, while assuring him that they would endeavour to meet his wish, never actually gave him a definite commitment for below deck stowage. The bill of lading when delivered to the shipper was endorsed "on deck at shipper's risk". The shipper at once demanded that his goods either be stowed below deck or taken off the ship at Montreal, to which port the ship was proceeding en route to Australia. He did not, however, surrender the bill of lading, and his demand was not complied with. His goods, stowed on deck, were damaged in severe weather at sea. It was held that the shipper was entitled to damages for his loss. There was no agreement between the parties for stowage on deck and the clause in the bill of lading to that effect did not correctly reflect the actual terms of the contract which were "implied by law".(83) 2) Acquiesence -previous shipments In Sealane (Searoad Shipping Co. v. E.L Du Pont de Nemours),(84) it was held that, although eight prior shipments of explosives by the same shipper had been carried on

deck despite clean bills of lading having been issued, this did not amount to a waiver of under-deck carriage by a person having requisite authority and awareness to do so. Other decisions, unfortunately, have upheld deck carriage where the bill of lading has not noted such carriage on its face, on the grounds of the shipper's presumed acquiescence based on previous shipments on deck.(85) On the other hand, in Great American Ins. Cos. v. M/V Romeral,(86) evidence of some 200 previous shipments of tractors and related equipment over seventeen years helped to defeat the carrier's effort to discharge its burden of proving that deck stowage of such machinery was customary in the Port of New Orleans. 3) The bill is not the whole contract It is a principle of the general maritime and commercial law that a bill of lading is only the best evidence of the contract of carriage.(87) The real contract of carriage is the bill of lading, the telephone calls by the shipper to the carrier before shipment, the booking note, the carrier's tariff and advertisements etc., all taken together.(88) In respect to deck carriage, however, the Hague Rules and the Hague/Visby Rules, specifically stipulate that deck carriage must be so "stated" on the bill of lading. It follows that under the Hague and Hague/Visby Rules, the telephone calls, the booking note, the tariff and advertisements, although together forming the contract, nevertheless may not contradict the statement or lack of statement as to deck carriage on the bill of lading.(89) In a similar vein, it was held in Ingersoll Milling Co. v. M/V Bodena(90) that although the shipper and its freight forwarder, after the ship sailed, had received a copy of the bill of lading on which the carrier's port agent had entered "on deck shipper's risk" and made no objection to that notation, they could not be said to have waived their right to under-deck stowage, which had been the original understanding. The domestic law of France(91) and the Hamburg Rules(92) also make specific references to deck carriage and containers and usage, which exceptions create a presumption that the shipper has consented to their terms and modify the general rule as to what the contract of carriage actually is. VI. Statement that the Hague Rules Apply to Deck Cargo It should be noted that the Hague Rules can be applied to deck cargo if there is an express statement in the bill of lading that the Hague Rules will so apply. In such a case, the Rules apply and the carrier must exercise care and otherwise comply with the Hague Rules.(93) VII. France - Deck Carriage 1) Domestic and residuary regime The French domestic law,(94) which applies to shipments from any port in France or its territories overseas(95) to any other port in France or its territories overseas, contains three special provisions in respect of deck cargo.(96) Art. 22 of the Law of June 18, 1966 is to the effect that the carrier is at fault if he carries the cargo on deck, except:

a) in the case of "petit cabotage" (i.e. carriage between French ports on the same sea or body of water),(97) b) where regulations impose deck carriage (e.g. certain dangerous goods),(98) or c) where the shipper's consent is mentioned on the bill of lading.(99) Art. 22 second para. adds that the consent of the shipper to deck carriage is presumed in the case of containers on ships appropriately equipped for this type of carriage.(100) Art. 30 stipulates that non-responsibility clauses may govern cases of permissible deck carriage (as defined in art. 22), except for containers stowed on deck on speciallyequipped vessels, which are treated like cargo stowed under deck. When there is a general clause in the bill of lading permitting deck carriage, the consent of the shipper is deemed to be given if the bill of lading is signed by the shipper,(101) which signature used to be required by art. 37 of the Decree of December 31, 1966, but which has ceased to be required since 1987.(102) When the carrier seeks to rely on the liberty clause in the bill of lading in respect of carriage on deck, he must inform the shipper of the deck carriage by a specific notation on the bill,(103) particularly in order to permit the shipper to obtain deck cargo insurance coverage.(104) If the shipper seeks to prevent the carrier from stowing the cargo on deck in reliance on the liberty clause, the shipper can take an injunction in accordance with the accelerated procedure set out in art. 910 of the New Code of Civil Procedure as amended by art. 12 of Decree No. 85-1330 of December 17, 1985.(105) By carrying the cargo on deck contrary to art. 22 of the Law of June 18, 1966, the carrier commits a fault, even if there is no dol or fraud on its part. If the shipper proves, in accordance with art. 27, last para., that the loss or damage was caused by the carrier's fault, the carrier will not be able to rely on the exculpatory defences provided by the Law (similar to those in art. 4(2) of the Rules).(106) The carrier will nevertheless be able to benefit from the limitation of liability, unless the court, in the light of the circumstances, views such illegal deck carriage as having been "committed recklessly and with knowledge" that the loss or damage would probably result. By art. 28, fifth para. (a), of the Law of June 18, 1966, as amended by the Law of December 23, 1986,(107) the carrier only loses this benefit if there is intentional fault (i.e. dol) or recklessness (i.e. faute inexcusable).(108) Under France's domestic regime, however, the dol or faute inexcusable must be the "personal" act or omission of the carrier, rather than that of his servants or agents.(109) The decision of the Cour de Cassation of January 30, 1978(110) involved a case where the carrier stowed a locomotive on deck contrary to the formal and clear instructions of the shipper. The Court nevertheless held that the carrier's fault did not amount to dol since the carrier had not intended to cause the damage.(111) In permitting the carrier to limit his liability despite his evident faute lucrative, the Court overlooked its previous decision(112) where the meaning of dol was expanded to include not only intending to cause damage, but also voluntarily refusing to execute one's contractual obligations.(113) Because of the amendment of art. 28 of the Law of June 18, 1966, there is little doubt that the carrier's reckless disregard of the shipper's clear instructions in stowing cargo on deck would entail the loss of the benefit of limitation of liability.(114) Although France's internal cargo liability regime therefore recognizes that unjustified

deck carriage can break the carrier's package and kilo limitations in cases of dol (intention to cause the damage) and faute inexcusable (recklessness with knowledge that the damage will probably result), the limits are not broken by mere proof of faute lourde (gross negligence)(115) or faute lucrative (fault committed for personal gain but without the intention to cause damage).(116) Nevertheless, French courts are rigorous in applying art. 28 and sometimes conclude that the case is one of faute inexcusable, in circumstances where arguably no more than faute lourde is present.(117) 2) The Visby Rules The Hague/Visby Rules will normally apply in France to international transport according to art. 10. However, by virtue of art. 1(c), if the cargo is stated in the bill of lading as being carried on deck and is so carried, the Hague/Visby Rules do not apply. What law will apply in such a case is disputed. Some authors such as Rodire(118) argue that the Law of June 18, 1966 replaces the international convention. Others argue that the Law of June 18, 1966 cannot apply when neither the port of destination nor the port of loading are in France and therefore the deck carriage should be governed by the proper law of the contract(119) which may very well give effect to non-responsibility clauses.(120) If deck carriage is not stated in the bill of lading and not consented to by the shipper, then, by an argument a contrario, the Hague/Visby Rules do apply.(121) By virtue of art. 4(5)(e), the per package limitation is lost if the carrier acted "with intent to cause damage or recklessly and with knowledge that damage would probably result." This places a heavy burden on the shipper to show that the carrier intended damage or knew that damage would probably result.(122) In the case decided by the Cour de Cassation on June 23, 1982,(123) a clean bill of lading was issued at Rouen four months after the coming into effect of the Visby Rules in France. The cargo was carried on deck without the shipper's consent(124) and lost in heavy weather. The Cour d'Appel de Paris(125) had held that, although the carrier could not rely on the non-responsiblity clause in the bill of lading, the perils of the sea exception of art. 4(2)(c) would have been available had the carrier proved that such a defence applied in the circumstances and that he had exercised due diligence.(126) The Cour d'Appel, subsequently affirmed by the Cour de Cassation, held that the carrier could nevertheless benefit from limitation of liability since there was no dol on his part.(127) It is difficult to understand why the Courts did not consider the carrier's behaviour as amounting to faute inexcusable, i.e. an act done "recklessly or with knowledge that damage would probably result", within the meaning of art. 4(5)(e) of Hague/Visby.(128) The Cour de Cassation has decided more recently, however, that deck carriage may lose the carrier the protection of the Hague/Visby limitations where it is tantamount to faute inexcusable. The Supreme Court further found that even where deck carriage is authorized by a liberty clause in the bill of lading, and even where it is effected on a vessel specially designed to carry containers on deck, it nevertheless remains unjustified, unless expressly mentioned on the face of the bill of lading.(129) VIII. The Visby Rules The Visby Rules add one provision to the Hague Rules in respect to deck carriage. The package (or kilo) limitation, according to art. 4(5)(e), is lost only if the unauthorized

deck carriage was "done with intent to cause damage, or recklessly and with knowledge that damage would probably result". This is a very heavy burden of proof on the claimant and has become known as "the unbreakable limit". Carrying cargo on deck in the winter months in the North Atlantic, although not done with "intent to cause damage", could come within the alternative -"recklessly and with knowledge that damage would probably result." In Itel Container Corp. v. M/V Titan Scan,(130) art. 4(5)(e) of the Hague/Visby Rules was interpreted as necessitating proof that the defendant had taken "a calculated risk with the full appreciation of the dangers and probable consequences",(131) citing The Pembroke(132) on the point.(133) Art. 4(5)(e) only refers to the per package limitation being lost (i.e. the unbreakable limit). A fundamental breach committed by carrying unauthorized cargo on deck will therefore cause the carrier to lose the benefit of the art. 4(2)(a) to (q) exceptions, the due diligence defence of art. 3(1) and the other defences of the contract. On the other hand, the one year time for suit defence is never lost under the Visby Rules, even for a fundamental breach, because of the addition of the word "whatsoever" to new art. 3(6) subpara. 4 of the Visby Rules.(134) In The Pembroke,(135) where a printing press was carried on deck from Germany to New Zealand and some of its roller chain rusted following the ship's exposure to marine weather, the New Zealand High Court found that the carrier "must have known" that it was probable that some of the on-deck open top containers would be wetted in the expected bad weather encountered on the voyage, with a probability of rusting, and concluded that it was plain that the master and charterers "... took a calculated risk with full appreciation of the dangers and probable consequences..."(136) The Hague/Visby package limitation was broken by such conscious recklessness as to the probable damage. The Court held that in such circumstances, "The defendant cannot rely on the package limitation clauses in either the Hague Rules or the Hague-Visby Rules."(137) Art. 4(5)(e) of the Hague/Visby Rules does not expressly mention the servants and agents of the carrier, but refers only to the carrier itself. This has led to two early (and I believe erroneous) decisions holding that art. 4(5)(e) applies only to acts or omissions of the carrier (and not of its servants or agents), except in so far as such employees of the carrier are to be regarded as constituting part of its alter ego.(138) If this interpretation be correct, only the acts or omissions of senior employees of the carrier, who could be said to be part of the carrier's "directing mind and will" (and not those of the carrier's officers, crewmembers or other servants), could then be invoked to break the carrier's package/kilo limits of liability. Apart from being contrary to common sense, and incompatible with the general legal principle of respondeat superior, this interpretation only serves to invite carriers to be negligent in supervising their servants and agents, to the detriment of cargo interests. One can therefore only applaud the holding of Ellis J. of the High Court of New Zealand in The Pembroke,(139) who stoutly resisted this argument in holding the carrier liable without limitation for the recklessness of its master in exposing the printing press to the fury of the winds and waves on the ship's deck with knowledge of the likelihood of ensuing harm. The matter is not free from doubt, however, and a number of reputable scholars support the view that only the carrier's intentional or reckless acts or omissions, and not those of its servants or agents, are contemplated by art. 4(5)(e).(140)

IX. The Hamburg Rules 1) Introduction Deck cargo is regulated in the Hamburg Rules(141) with even less precision than the Hague/Visby Rules, so that most of the problems of the past relating to deck carriage remain unresolved.(142) 2) Right to Carry on Deck The carrier may carry goods on deck when: a) there is an agreement with the shipper as per art. 9(2) and a statement of the existence of such an agreement has been inserted in the bill of lading (arts. 9(l) and 9(2) and 15(l)(m)); or b) there is a usage or custom to carry on deck (art. 9 (1));(143) or c) there are regulations imposing deck carriage;(144) or d) there is an agreement to carry on deck and there is no statement in the bill of lading that the goods may be carried on deck. In such circumstances the carrier may still carry the goods on deck without violating the Rules providing he can prove that there was an agreement. The carrier may not make such proof, however, "against a third party including a consignee who has acquired the bill of lading in good faith." (art. 9(2)). 3) "Agreement" and "Statement"

The Hamburg Rules are vague as to the meaning of the word "agreement" in arts. 9(l), (2) & (3). Does it mean a general liberty clause? One would expect not in the light of Hague Rules jurisprudence, but art. 15(1)(m) of Hamburg suggests that an "agreement" may indeed include a general liberty clause when it stipulates "the statement, if applicable, that the goods shall or may be carried on deck." (Emphasis added.) This leads to the conclusion that the agreement need only be an option much like a general liberty clause. The use of the words "express agreement" in art. 9(4) also leads one to believe that the word "agreement" in arts. 9(l), (2) and (3) encompasses an option or general liberty clause in the bill of lading. The meaning of "statement" in art. 9(2) is even more disquieting. It need not state that the goods actually are carried on deck as in the Hague and Hague/Visby Rules, but only that there is an agreement that they be so carried. Nor need the statement be firm, but apparently need only state that the goods "may" be carried on deck. (See art. 15(l)(m)). 4) The sanction The sanction for unagreed and unstated deck cargo is the loss of the package and kilo limitation of art. 6: (i) if the loss arose "solely from the carriage on deck" (art. 9(2)); and (ii) if the deck carriage was done "with the intent to cause such loss, damage, or delay or recklessly and with knowledge that such loss, damage or delay would probably result."

(art. 9(3)). Nota bene: If deck carriage and similar reckless acts done with intent to cause damage lose the package or kilo limitation under the Hamburg Rules, normal fundamental breach (without intent to cause damage but only intent to do the act) continues to result in the loss of the other defences and exceptions of the carrier, including the time for bringing suit, and the defence of having taken all reasonable measures. 5) Express agreement" Art. 9(4) refers to an "express agreement for carriage under deck" and only then is there deemed to be a violation by the carrier and a presumption (not absolute) against him within the meaning of art. 8. 1. 1 Lossiebank (Massce & Co. Inc. v. Bank Line) 1938 AMC 1033 (Sup. Ct. of Cal. 1938): It was held that stowage of cargo in the ship's hospital, a steel structure on deck having heavy wooden doors two inches or more thick, which were damaged by a hurricane, was proper under-deck stowage. 2. 2 T. Roberts & Co. v. Calmar S.S. Corp. 59 F. Supp. 203 at p. 209, 1945 AMC 375 at pp. 384-385 (E.D. Pa. 1945): "The description 'clean' bill of lading, in general, imports that the goods are to be safely and properly secured under deck. However, broadly speaking, it may be said that a 'clean' bill of lading is one which contains nothing in the margin qualifying the words of the bill of lading itself." See also Royal Exchange Shipping Co. Ltd. v. WJ. Dixon & Co. (1886) 12 App. Cas. 11 (H.L.), where a bill of lading without any notation was held to have the same meaning as a bill of lading marked "under deck". See also Schooner St. Johns N.F. (St. Johns N.F Shipping Corp. v. S.A. Comp. Geral) 263 U.S. 119 at p. 124, 1923 AMC 1131 at pp. 1132-1133 (1923); Jones v. Flying Clipper 116 F. Supp. 386 at p. 387, 1954 AMC 259 at p. 260 (S.D. N.Y. 1953); Encyclopaedia Britannica Inc. v, S.S. Hong Kong Producer 422 F.2d 7 at p. 14, 1969 AMC 1741 at pp. 1751-52, [1969] 2 Lloyd's Rep. 536 at p. 542 (2 Cir. 1969). cert. denied, 397 U.S. 964, 1971 AMC 813 (1970); Calmaquip Engineering v. West Coast Carriers 650 F.2d 633 at p. 638-39, 1984 AMC 839 at p. 846 (5 Cir. 1981); Du Pont de Nemours International v. S.S. Mormacvega 493 F.2d 97 at p. 103, 1974 AMC 67 at p. 75 (2 Cir. 1974). See also Electro-Tec Corp. v. S.S. Dart Atlantica 598 F. Supp. 929 at p. 931, 1985 AMC 1606 at p. 1607 (D. Md. 1984) where the Court noted: "Nor did the enactment of COGSA alter this rule. 46 U.S. Code sect. 1301(c)." See also Hojgaard & Schultz A/S v. Transamerican S.S. Corp. 590 F. Supp. 916 at p. 921, 1985 AMC 2129 at p. 2133 (S.D. N.Y. 1984): " A clean bill of lading that does not specify on deck shipment is legitimately understood by the shipper as 'importing under deck stowage'.", aff'd 762 F.2d 990, 1985 AMC 2408 (2 Cir. 1985); Seguros Banvenez, S.A. v. S/S Oliver Drescher 761 F.2d 855 at p. 859, 1985 AMC 2168 at p. 2173 (2 Cir. 1985); English Electric Valve Co. v. M/V Hoegh Mallard 814 F.2d 84 at p. 89, 1987 AMC 1351 at p. 1359 (2 Cir. 1987); Ingersoll Milling Machine Co. v. M/V Bodena 829 F.2d 293 at pp. 299 and 303304, 1988 AMC 223 at pp. 231 and 238-239 (2 Cir. 1987), cert. denied 484 U.S. 1042, 1988 AMC 2399 (1988); Constructores Tecnicos, S. de R.L. v. Sea-Land Service, Inc. 945 F.2d 841 at p. 845, 1992 AMC 1284 at p. 1290 (5 Cir. 1992); ETS Gustave Brunet, S.A. v. M.V. Nedlloyd Rosario 929 F. Supp. 624 at p. 703, 1997 AMC 803 at pp. 815-816

(S.D. N.Y. 1996); Great American Ins. Cos. v. M/V Romeral 962 F. Supp. 86 at p. 87, 1997 AMC 2431 at pp. 2431-32 (E.D. La. 1997). See also Hof van Cassatie van Belgi, December 1, 2000 (The OOCL Europe V), [2001] ETL 185. 3. 3 Gould v. Oliver (1837) 132 E.R. 740; Schooner St. Johns N.F. (St. Johns N.F. Shipping Corp. v. S.A. Comp. Geral) 263 U.S. 119 at p. 124, 1923 AMC 1131 at pp. 1132-33 (1923). 4. 4 It is true that the U.S. Court of Appeals has alluded to the custom to carry on deck (in my view erroneously), but found that proof of custom had not been made by the carrier. See Encyclopaedia Britannica v. Hong Kong Producer 422 F.2d 7 at p. 17, 1969 AMC 1741 at p. 1755-56, [1969] 2 Lloyd's Rep. 536 at p. 544 (2 Cir. 1969), cert. denied, 397 U.S. 964, 1971 AMC 813 (1970). See also Sealane (Searoad Shipping Company v. E.I. duPont de Nemours) 361 F.2d 833 at p. 835, 1966 AMC 1405 at p. 1408 (5 Cir. 1966). In both cases, Schooner St. Johns N.F. Shipping Corp. v. S.A. Comp. Geral, ibid., was relied on improperly. See also the reference to custom in Seguros Banvenez, S.A. v. S/S Oliver Drescher 761 F.2d 855 at p. 859, 1985 AMC 2168 at p. 2173 (2 Cir. 1985); English Electric Valve Co. v. M/V Hoegh Mallard 814 F.2d 84 at p. 89, 1987 AMC 1351 at p. 1359 (2 Cir. 1987). In O'Connell Machinery Company Inc. v. Americana 797 F.2d 1130 at p. 1135, 1986 AMC 2822 at p. 2828 (2 Cir. 1986), the Second Circuit held that a very large flat rack container could be carried on deck without a declaration to that effect, because there was strong evidence that it was customary to so carry in the Italian port of loading and there was no evidence that such carriage was unreasonable. The Court noted that in any event there was no causal connection between the deck carriage and the damage and added: "We hasten to note, however, that our opinion in this case does not necessarily approve deck stowage of similar cargo in other cases." See also Neuenberger Schweizerische Allgemeine Versicherungs-Gesellschaft v. S.S. Aldebaran 1990 AMC 1886 at pp. 1892-1893 (S.D. N.Y. 1989); Constructores Tecnicos, S. de R.L. v. Sea-Land Service, Inc. 945 F.2d 841 at p. 845, 1992 AMC 1284 at p. 1290 (5 Cir. 1992); Great American Ins. Co. v. M/V Romeral 962 F. Supp. 86, 1997 AMC 2431 (E.D. 1997) (port custom of deck stowage not proven). 5. 5 See, for example, T. Schoenbaum, Admiralty and Maritime Law, 2 Ed., vol. 2, 1994, at p. 87 (although he admits that U.S. courts are "...very reluctant to find a trade custom of on deck stowage... and even if it is proved that the type of cargo involved is frequently or a majority of the time stowed on deck will not be enough)", citing Seguros Banvenez, S.a. v. S/S Oliver Drescher 761 F.2d 855, 1985 AMC 2168 (2 Cir. 1985); Encyclopaedia Britannica v. Hong Kong Producer 422 F.2d 7, 1969 AMC 1741, [1969] 2 Lloyd's Rep. 536 (2 Cir. 1969) and Hojgaard & Schultz A/S v. Transamerican S.S. Corp 590 F. Supp. 916, 1985 AMC 2129 (S.D. N.Y. 1984), aff'd 716 F.2d 990, 1985 AMC 2408 (2 Cir. 1985), and commenting (at p. 87, note 14) that: "Habit is not equated with custom in such cases" .See also Scrutton, 20 Ed., 1996 at p. 168; Wilson, 4 Ed., 2001 at p. 183, who claims that it is customary to ship certain types of goods on deck, such as "..timber, certain types of inflammable or other dangerous goods and, more importantly, containers carried on a specially designed container ship." 6.

6 This position has also been taken in Canada. See Guadano v. S.S. Cap Vincent [1973] F.C. 726 at pp. 732-733 (Fed. C. Can.), citing Carver, Carriage by Sea, 12 Ed., London, 1971, vol. 2 at p. 604. 7. 7 See, for example, Ingersoll Milling Machine Co. v. M/V Bodena 829 F.2d 293 at p. 299, 1988 AMC 223 at p. 231 (2 Cir. 1987), cert. denied 484 U.S. 1042, 1988 AMC 2399 (1988); ETS Gustave Brunet, S.A. v. M.V. Nedlloyd Rosario 929 F. Supp. 694 at p. 703, 1997 AMC 803 at p. 816 (S.D. N.Y. 1996). 8. 8 153 F.3d 1076 at p. 1078, 1998 AMC 2705 at p. 2707 (9 Cir. 1998). 9. 9 See also English Electric Valve Co. v. M/V Hoegh Mallard 814 F.2d 84 at p. 89, 1987 AMC 1351 at p. 1359 (2 Cir. 1987), cited in Neuenberger Schweizerische Allgemeine Versicherungs-Gesellschaft v. S.S. Aldebaran 1990 AMC 1886 at p. 1891 (S.D. N.Y. 1989) and in Alternative Glass Supplies v. M/V Nomzi 1999 AMC 1080 at p. 1086 (S.D. N.Y. 1999): "... absent an agreement or an established custom from which consent of the shipper for on-deck stowage may be imputed, a clean bill of lading imports stowage below deck." 10. 10 Ingersoll Milling Machine Co. v. M/V Bodena, ibid., F.2d at p. 299, AMC at p. 231: "The burden is on the carrier to prove that the shipper consented to something other than the usual and customary arrangement"; Gemini Navigation, Inc. v. Philipp Bros. Div. of Minerals & Chemicals Philipp Corp. 409 F.2d 745 at p. 751, 1974 AMC 1122 at pp. 1127-28 (2 Cir. 1974). 11. 11 Ingersoll Milling Machine Co. v. M/V Bodena, ibid., F.2d at pp. 300-301, AMC at p. 233. See also Grace Plastics Ltd. v. The Bernd Wesch II [1971] F.C. 273 at p. 283 (Fed. C. Can.): "... the contract of carriage... cannot be taken to have been changed by additional clauses added to the Bill of Lading that was issued after the ship sailed." See also Sheerwood v. The Lake Eyre [1970] Ex. C.R. 672 at p. 676 (Ex. C. Can.); A.R. Kitson Trucking Ltd. v. Rivtow Straits Ltd. [1975] 4 W.W.R. 1 at p. 10 (B.C. S.C.). 12. 12 See, for example, Hojgaard & Schultz v. Transamerican S.S. Corp. 590 F. Supp. 916 at p. 921, 1985 AMC 2129 at pp. 2133 and 2134 (S.D. N.Y. 1984), aff'd 762 F.2d 990, 1985 AMC 2408 (2 Cir. 1985), where a booking note provided in typed words "under deck bill of lading" immediately preceding the printed words: "Under Deck/On Deck". The Court held this ambiguous wording insufficient to rebut the presumed on-deck connotation of a clean bill of lading. In addition, "express agreement" to deck carriage had to be found in the bill of lading, and not in a separate freight agreement such as a booking note. 13.

13 English Electric Valve Co., Ltd. v. M/V Hoegh Mallard 814 F.2d 84 at p. 89, 1987 AMC 1351 at p. 1359 (2 Cir. 1987); Morrow Crane Co. v. Affiliated FM Insurance Co 885 F.2d 612 at p. 614, 1990 AMC 601 at p. 603 (9 Cir. 1989). 14. 14 Strachan Shipping Co. v. Dresser Industries, Inc. 701 F.2d 483 at p. 487, 1984 AMC 237 at p. 242 (5 Cir. 1983), noting that 46 U.S.C. sect. 841b, permitting a carrier to compensate a freight forwarder, is "an express recognition of the fact that the forwarder performs services beneficial to the carrier." The same decision (F.2d at pp. 487-488, AMC at p. 243) also notes that many of the tasks performed by forwarders benefit both the shipper and the carrier. 15. 15 Strachan Shipping Co. v. Dresser Industries, Inc., ibid., F.2d at pp. 488-489, AMC at p. 245; Farrell Lines, Inc. v. Titan Industrial Corp. 306 F. Supp. 1348 at p. 1350, 1969 AMC 1412 at p. 1414 (S.D. N.Y. 1969), aff'd 419 F.2d 835, 1969 AMC 2503 (2 Cir. 1969), cert. denied, 397 U.S. 1042, 1971 AMC 813 (1970); Constructores Tecnicos, S. de R.L. v. Sea-Land Service, Inc. 945 F.2d 841 at p. 848, 1992 AMC 1284 at pp. 1294-1295 (5 Cir. 1992). 16. 16 Strachan Shipping Co. v. Dresser Industries, Inc. 701 F.2d 483 at p. 488, 1984 AMC 237 at p. 244 (5 Cir. 1983); Constructores Tecnicos, S. de R.L. v. Sea-Land Service, Inc. 945 F.2d 841 at p. 846, 1992 AMC 1284 at pp. 1291-1292 (5 Cir. 1992). 17. 17 See Grace Plastics Ltd. v. The Bernd Wesch II [1971] F.C. 273 at pp. 282-283 (Fed. C. Can.), where the acquiescence of a forwarder's agent to deck carriage of certain equipment, contrary to the original contract of carriage, was not determinant, no statement of their carriage on deck having been inserted in the bill of lading before shipment. On the other hand, the agent's acquiescence to deck carriage was binding on the plaintiff in respect of two reactors which were expressly stated in the bill as being carried on deck and were so carried. See ibid. at p. 280. 18. 18 Especially equipped or especially built containers ships do not necessarily mean safety for the deck cargo or even stability or seaworthiness of the vessel. Problems arising from containers are due to the large cubic space they occupy as compared with their weight and the weight of their contents. A container ship has in consequence a high centre of gravity so that it is not unusual for containers on top to slide overboard. Besides, it is the containers on deck which are usually stove in by storms or their contents are otherwise damaged or wetted. Large high automobile ships incidentally are the answer for the carriage of automobiles, because of the same problem. 19. 19 Art. 22 of Law No. 66-420 of June 18, 1966 as amended by Law No. 79-1103 of December 21, 1979. The internal law of France has no equivalent of art. 1(c) of the

Hague Rules. 20. 20 United Nations Convention on the Carriage of Goods by Sea, 1978, signed at Hamburg on March 31, 1978, and in force November 1, 1992. 21. 21 See, for example, Guadano v. S.S. Cap Vincent [1973] F.C. 726 at p. 734 (Fed. C. Can.), holding that: "... in modern ships built or reconstructed to carry containers on deck, a 'usual carrying place' on such ship is on the ship's deck." 22. 22 See, for example, Insurance Company of North America v. Blue Star, Ltd. 1997 AMC 2434 at pp. 2443-2444 (S.D. N.Y. 1997); Konica Business Machines, Inc. v. SeaLand Consumer 47 F.3d 314 at p. 316, 1995 AMC 1065 at p. 1068 (9 Cir. 1995), on remand, 1996 AMC 1761 at p. 1763 (C.D. Cal. 1996), aff'd Konica Business Machines, Inc. v. Sea-Land Consumer 153 F.2d 1076 at p. 1078, 1998 AMC 2705 at p. 2708 (9 Cir. 1998); Alternative Glass Supplies v. M/V Nomzi 1999 AMC 1080 at p. 1086 (S.D. N.Y. 1999); Deltamax Freight System v. M/V Aristotelis 1999 AMC 1789 at pp. 1795-1796 (C.D. Cal. 1998). 23. 23 Du Pont de Nemours Int'l S.A. v. S.S. Mormacvega 493 F.2d 97 at p. 102, 1974 AMC 67 at p. 75 (2 Cir. 1974). See also Neuenberger Schweizerische Allgemeine Versicherungs-Gesellschaft v. S.S. Aldebaran 1990 AMC 1886 at p. 1891, note 4; (S.D. N.Y. 1989) Insurance Company of North America v. Blue Star, Ltd. 1997 AMC 2434 at pp. 2441-2443 (S.D. N.Y. 1997); Konica Business Machines, Inc. v. Sea-Land Consumer, 153 F. 3d 1076 at p. 1078, 1998 AMC 2705 at p. 2708 (9 Cir. 1998); Alternative Glass Supplies v. M/V Nomzi 1999 AMC 1080 at p. 1087 (S.D. N.Y. 1999). See also Christopher Hill, Maritime Law, 5 Ed., LLP Limited, London and Hong Kong, 1998 at p. 195. 24. 24 See, for example, Du Pont de Nemours Int'l S.A. v. S.S. Mormacvega 493 F.2d 97 at p. 102, 1974 AMC 67 at p. 74 (2 Cir. 1974); English Electric Valve Co. v. M/V Hoegh Mallard 814 F.2d 84 at p. 89, 1987 AMC 1351 at p. 1360 (2 Cir. 1987); Konica Business Machines, Inc. v. Sea-Land Consumer 153 F.3d 1076 at p. 1078, 1998 AMC 2705 at p. 2708 (9 Cir. 1998). But see also Great American Ins. Cos. v. M/V Romeral 962 F. Supp. 86 at p. 88, 1997 AMC 24312 at p. 2433 (E.D. La. 1997), finding no evidence that stowing oversized equipment on flatracks on deck was safer than under-deck stowage, nor that any special circumstances necessitated such stowage. 25. 25 Neuenberger Schweizerische Allgemeine Versicherungs-Gesellschaft v. S.S. Aldebaran 1990 AMC 1886 at p. 1893 (S.D. N.Y. 1989): "...the question of the reasonableness of the deviation is one of fact which must be determined at trial." 26.

26 I.N.A. v. Dart Containerline. 629 F. Supp. 781 at p. 786, 1987 AMC 42 at p. 49 (E.D. Va. 1985); O'Connell Machinery Co. v. M/V Americana 797 F.2d 1130 at p. 1135, 1986 AMC 2822 at p. 2829 (2 Cir. 1986); Neuenberger Schweizerische Allgemeine Versicherungs-Gesellschaft v. S.S. Aldebaran 1990 AMC 1886 at p. 1893 (S.D. N.Y. 1989). 27. 27 See, for example, Neuenberger Schweizerische Allgemeine VersicherungsGesellschaft v. S.S. Aldebaran 1990 AMC 1886 at pp. 1891, note 4 (S.D. N.Y. 1989), where the Court, while admitting that "in recent years", the Second Circuit had "moved away from a rigid application of the rule of unreasonable deviation with respect to deck stowage of containerized cargo on container vessels", also noted that "it remains the law that, absent a custom or contract to the contrary, a clean bill of lading imports under deck stowage". In consequence, such carriage remained a "deviation", although a deviation "not per se unreasonable". Hence it became necessary, where there was a factual issue regarding the terms of the contract of carriage, to determine first whether, under the contract, a deviation had occurred, before reaching the question of the reasonableness of the deviation. 28. 28 See, for example, General Motors Corp. v. Moore-McCormack Lines, Inc. 451 F.2d 24 at p. 25, note 1, 1971 AMC 2408 at p. 2409, note 1 (2 Cir. 1971); General Electric Co. v. M/V Lady Sophie 458 F. Supp. 620 at p. 622, 1979 AMC 724 at p. 727 (S.D. N.Y. 1978); North River Ins. v. Federal Sea/Fed. Pac. Line 647 F.2d 985 at p. 987, 1982 AMC 2963 at p. 2965 (9 Cir. 1981), cert. denied 455 U.S. 948, 1982 AMC 2110 (1982); Institute of London Underwriters v. Sea-Land Service, inc 881 F.2d 761 at pp. 765-766, 1989 AMC 2516 at pp. 2520-2522 (9 Cir. 1989); Royal Insurance Co. v. Sea-Land Service, Inc. 50 F.3d 723 at p. 727, 1995 AMC 1189 at p. 1192 (9 Cir. 1993); General Electric Co. v. Inter-Ocean Shipping 862 F. Supp. 166 at p. 168, 1995 AMC 871 at p. 874 (S.D. Tex. 1994). For Canada, see Power Construction Ltd. v. Canadian National Railway Co. (1984) 48 Nfld. & P.E.I.R. 271 at p. 273, 142 A.P.R. 271 at p. 273 (Nfld. C.A.). 29. 29 General Electric Co. v. Inter-Ocean Shipping, ibid., F.2d at p. 168, AMC at p. 874. 30. 30 See, for example, Institute of London Underwriters v. Sea-Land Service, Inc. 881 F.2d 761 at p. 764, 1989 AMC 2516 at p. 2520 (9 Cir. 1989); Saint Paul Fire & Marine Ins. Co. v. Sea-Land Service, Inc. 745 F. Supp. 186 at p. 188, 1991 AMC 523 at p. 524 (S.D. N.Y. 1990); Sail America Foundation v. M.V. T.S. Prosperity 778 F. Supp. 1282 at p. 1285, 1992 AMC 1617 at p. 1621 (S.D. N.Y. 1991). 31. 31 Aetna Ins. Co. v. Carl Matusek Shipping Co., 1956 AMC 400 (S.D. Fla. 1955): The one-year time limit under COGSA was held inapplicable in this case of deck carriage where the bill of lading noted that the cargo was loaded on deck. Suit brought 14 months after delivery was held to be valid. Export Project Services v. S. S. Steinfels, 1975 AMC

765 (S.D.N.Y. 1975): Cargo was carried on deck and so described on the bill of lading. In consequence, COGSA did not apply ex proprio vigore, but was merely incorporated as one of the terms of the contract. General Electric Co. v. Inter-Ocean Shipping 862 F. Supp. 166 at p. 168, 1995 AMC 871 at pp. 873-874 (S.D. Tex. 1994): COGSA did not apply ex proprio vigore to three of four bills of lading which expressly mentioning ondeck stowage on their faces, but did apply as a contractual term through incorporation into the printed terms of all three bills; Grace Plastics Ltd. v. The Bernd Wesch II, [1971] F.C. 273 (Fed. C. Can.): Cargo which the contract of carriage stated as being carried on deck was not subject to the Hague Rules, whereas cargo which was in fact carried on deck, though the contract of carriage stated that it would be carried under deck, was subject to the Rules (pp. 282-283). See also Cour dAppel de Paris, October 1, 1986, DMF 1987, 431 at p. 436; Cour dAppel de Rouen, October 14, 1980, DMF 1981, 106; H.B. Contracting Ltd. v. Northland Shipping (1962) Co. Ltd. (1972) 24 D.L.R. (3d) 209; Svenska Traktor Aktiebolaget v. Maritime Agencies (Southampton), [1953] 2 Lloyd's Rep. 124 at p. 130. See however, Shaw, Savill & Albion Co. v. Electric Reduction Sales Co. (The Mahia), [1955] 1 Lloyd's Rep. 264 at p. 266, [1955] R.L. 393 at p. 397 (Qubec). 32. 32 Grace Plastics Ltd. v. The Bernd Wesch II [1971] F.C. 273 at p. 284 (Fed. C. Can.); Belships (Far East) Shipping (Pte.) Ltd. v. Canadian Pacific Forest Products Limited Tahsis Pacific Region 1999 AMC 2606 at p. 2615 (Fed. C.A. 1999). 33. 33 Ponce, 67 F. Supp. 725, 1946 AMC 1124 (D. NJ. 1946) where goods are shipped on deck at shipper's risk, the carrier is not relieved of due care and attention towards the cargo. See also Cour d'Appel d'Aix, March 13, 1980, DMF 1980, 656. See also under the previous law: Cour d'Appel d'Aix, March 29, 1960, DMF 1961, 525; Cour d'Appel d'Aix, March 27, 1952, DMF 1952, 413: Cour d'Appel de Paris, December 1, 1952, DMF 1953, 130. See also Power Construction v. C.N.R. (1983) 41 Nfld. & P.E.I.R. 99, 119 A.P.R. 99. 34. 34 46 U.S. Code sects. 190-196. 35. 35 1946 AMC 674 at p. 680 (E.D. Pa. 1946); Blanchard Lumber Co. v. S.S. Anthony II, 259 F. Supp. 857 at pp. 866-76, 1967 AMC 103 at p. 117, [1966] 2 Lloyd's Rep. 437 at p. 445 (S.D. N.Y. 1966). Lumber was carried under a bill of lading which noted on its face that the cargo would be on deck. "The fact, then, that the libellants' lumber was deck cargo does not bar recovery. The clauses in the bills of lading which purport to state that deck cargo is carried at shipper's risk do not relieve the carrier or carriers in this case from a duty to stow the cargo with due care." The Harter Act was applied in this carriage from Canada to the United States. Hartford Fire Ins. v. Calmar S.S. Corp., 404 F. Supp. 442, 1976 AMC 2636 (W.D. Wa. 1975): The clause "on deck at shipper's risk" did not relieve the carrier from the duty of exercising due diligence as to seaworthiness where COGSA was incorporated by reference in a U.S. intercoastal shipment. 36.

36 St-Simeon Navigation Inc. v. A. Couturier & Fils Lte (1974) 44 D.L.R. (3d) 478 at p. 480 (Supr. C. of Can.); Svenska Traktor Aktiebolaget v. Maritime Agencies (Southampton) Ltd., [1953] 2 Lloyd's Rep. 124 at pp. 129-130; English Electric Valve Co. v. Hoegh Mallard, 814 F.2d 84 at p. 89, 1987 AMC 1351 at p. 1359 (2 Cir. 1987); Ingersoll Milling Machine Co. v. M/V Bodena 829 F.2d 293 at p. 301, 1988 AMC 223 at p. 234 (2 Cir. 1987), cert. denied 484 U.S. 1042, 1988 AMC 2399 (1988); Neuenberger Schweizerische Allgemeine Versicherungs-Gesellschaft v. S.S. Aldebaran 1990 AMC 1886 at p. 1890 (S.D. N.Y. 1989); Great American Ins. Cos. v. M/V Romeral 962 F. Supp. 86 at p. 88, 1997 AMC 2431 at p. 2433 (E.D. La. 1997). 37. 37 422 F.2d. 7, 1969 AMC 1741, [1969] 2 Lloyd's Rep. 536 (2 Cir. 1969); see also Hato La Vergarena C.A. v. S.S. Susaa, 1973 AMC 195 (S.D. N.Y. 1972) where the carrier lost the benefit of the presumption under COGSA at sect. 3(6) that the cargo was delivered by the carrier in good order if the cargo interests do not give notice of damage within 3 days because of unauthorized deck carriage. Lime Intl. Corp. v. Alpha N.A. Line, 1979 AMC 2693 (S.D. N.Y. 1979) is a case where the booking note provided for carrier's option to load on deck. The bill of lading contained only a general deck cargo clause but no statement that the cargo would actually be carried on deck. This was deemed to be an unreasonable deviation, following Encyclopaedia Britannica, supra. See also Hof van Beroep te Antwerpen, May 2, 1983, 1984 ETL 503. 38. 38 Sealane (Searoad Shipping Co. v. E.I. duPont de Nemours), 361 F.2d 833 at P. 838, 1966 AMC 1405 at p. 1412 (5 Cir. 1966). 39. 39 650 F.2d 633, 1984 AMC 839 (5 Cir. 1981). 40. 40 945 F.2d 841, 1992 AMC 1284 (5 Cir. 1992). 41. 41 Jones v. Flying Clipper, 116 F. Supp. 386, 1954 AMC 259 (S.D. N.Y. 1953): The carrier issued a clean bill of lading, but nevertheless stowed the goods on deck. This was held to be an unjustifiable deviation and, consequently, the defences in the bill of lading did not apply and nor did the limitation per package of COGSA. Sealane (Searoad Shipping Co. v. E.I. duPont de Nemours), 361 F.2d 833 at p. 838, 1966 AMC 1405 at p. 1412 (5 Cir. 1966): "There being no legal justification for this on-deck stowage of cargo shipped pursuant to an under-deck clean bill of lading, this stowage amounted to a deviation casting the shipowner for the loss which was directly and causally related to the deck stowage." Thus the Coast Guard Regulations as to the stowage of explosives, approving stowage on deck, did not displace the basic contract clauses of the bill of lading. Espa (State Motors Inc. v. S.S. Espa), 1967 AMC 1447 (S.D. Ga. 1966): The bill of lading for a cargo of 50 Volkswagen automobiles carried the endorsement "stowed under deck"; 35 of the automobiles were stowed on deck and, consequently, sustained rust damage during the transatlantic voyage. The Court held that: the ocean carrier broke its contract by stowing the cars on deck and became liable for any damage to the cars resulting from this breach. Calmaquip v. West Coast Carriers Ltd., 650 F.2d. 633 at p.

639, 1984 AMC 839 at p. 844 (5 Cir. 1981); Nemeth v. General S.S. Corp., 694 F.2d. 609 at pp. 612-613, 1983 AMC 885 at pp. 888-891 (9 Cir. 1982). Encyclopaedia Britannica v. Hong Kong Producer, 422 F.2d 7, 1969 AMC 1741, [1969] 2 Lloyd's Rep. 536 (2 Cir. 1969): unstated deck carriage deprived the carrier of the $500 per package limitation. Cour de Cassation, July 18, 1984, DMF 1985, 210; Cour de Cassation de Belgique, May 25, 1979, [1980] ETL 175. See also I.N.A. v. Dart Containerline, 629 F. Supp. 781, 1987 AMC 42 (E.D. Va. 1985) where undeclared carriage of a container on deck lost the carrier the benefit of art. 3(6) "notice of damage". 42. 42 Du Pont de Nemours Intl. v. S.S. Mormacvega, 493 F.2d 97 at pp. 102-03, 1974 AMC 67 at pp. 73-75, [1974] 1 Lloyd's Rep. 296 at p. 300 (2 Cir. 1974); Rosenbruch v. American Export Isbrandtsen Lines, 543 F.2d 967 at p. 971, 1976 AMC 487 at pp. 492493 (2 Cir. 1976). Grace Plastics Ltd. v. The Bernd Wesch II, [1971 1 F.C. 273 at p. 291 (Fed. C. Can.); Sept-Iles Express Inc. v. Clment Tremblay, [1964] Ex. C.R. 213; Francosteel Corp. v. NIV Nederlandsch, 1967 AMC 2440 (Ct. of App., Cal. 1967) cert. denied 389 U.S. 931 (1967); Taisho Marine v. Sea-Land Endurance, 815 F.2d 1270, 1987 AMC 1730 (9 Cir. 1987): this peculiar decision does not explain how COGSA applied to deck carriage and if the bills of lading stated that the containers were carried on deck. 43. 43 Electro-Tec Corp. v. S.S. Dart Atlantica, 598 F. Supp. 929 at pp. 933-34, 1985 AMC 1606 at pp. 1610-1613 (D. Md. 1984) relying on Du Pont de Nemours Intl. v. S.S. Mormacvega, supra. See also Insurance Company of North America v. Blue Star, Ltd. 1997 AMC 2434 at pp. 2441-2443 (S.D. N.Y. 1997); Konica Business Machines, Inc. v. Sea-Land Consumer, 153 F. 3d 1076 at p. 1078, 1998 AMC 2705 at p. 2708 (9 Cir. 1998); Alternative Glass Supplies v. M/V Nomzi 1999 AMC 1080 at p. 1087 (S.D. N.Y. 1999). Another sophistic argument alluded to in Electro Tec Corp., 598 F. Supp. at p. 934, AMC at p. 1612 is based on the historical fact that COGSA was "designed to be a fair balance between the interests of the shipper and the carrier." That fact does not permit the Courts, however, to alter the balance as defined in COGSA and to alter the meaning of the word "stated". COGSA has set the balance; the Courts' duty is to apply COGSA. A court can interpret "due diligence to make the ship seaworthy" in the light of modern science and knowledge, but it cannot contradict the words "is stated as being carried on deck" by any interpretation or reliance on the historic balance. 44. 44 Texas Petroleum Corp. v. S. S. Margaret Lykes & Ulua, 57 F. Supp. 466, 1944 AMC 1128 (E.D. La. 1944). See Chap. 4 "Superseding Clauses", supra. See also Chester v. Maritima Del Litoral, 585 F. Supp. 192, 1985 AMC 2831 (E.D. Wis. 1983 & 1984), a Harter Act case where the shipper knew that no underdeck stowage was available 45. 45 Colonial Yacht Harbour Ltd. v. The Octavia, [1980] 1 F.C. 331 at p. 338. 46. 46 For an example of a typical liberty to carry on deck clause, see Belships (Far East) Shipping (Pte.) Ltd. v. Canadian Pacific Forest Products Limited - Tahsis Pacific Region

1999 AMC 2606 at p.2612 (Fed. C.A. 1999), where, however, the Hague Rules did not apply because the face of the bills of lading stated that the timber cargo was carried on deck and it was so carried. See also ETS Gustave Brunet, S.A. v. M.V. Nedlloyd Rosario 929 F. Supp. 694 at p. 704, 1997 AMC 803 at p. 816 (S.D. N.Y. 1996). 47. 47 As in the Belships decision, supra, AMC at p. 2615. 48. 48 See Svenska Traktor Aktiebolaget v. Maritime Agencies (Southampton) Ltd. [1952] 2 Lloyd's Rep. 124 at p 130, Grace Plastics Ltd. v. The Bernd Wesch II [1971] F.C. 273 at p. 283 (Fed. C. Can.); Ceramic Corp. of America v. Inka Maritime Corp., Inc. 1994 AMC 1076, note 1 (C.D. Cal. 1993): "the Court finds no case law holding that the mere presence in a bill of lading of a clause giving the carrier the option of stowing cargo 'on or under deck without notice to the merchant' is, in and of itself, sufficient to (1) undercut ex proprio vigore application of COGSA via the 1301 (c) exception...." See also Great American Ins. Cos. v. M/V Romeral 962 F. Supp. 86 at p 88, 1997 AMC 2431 at p. 2433 (E.D. La. 1997). 49. 49 (1974) 44 D.L.R. (3d) 478 at p. 480, upholding [1970] Ex. C.R. 1012. 50. 50 [1989] 2 Lloyd's Rep. 494. 51. 51 Royal Exchange Shipping Co. Ltd. v. Dixon (1886) 12 App. Cas. 11 (H.L.); J. Evans & Sons (Portsmouth) Ltd. v. Andrea Merzario [1976] 2 Lloyd's Rep. 165 (C.A. per Lord Denning M.R.); and Lord Wilberforc's references to deviation cases in Suisse Atlantique [1967] 1 A.C. 361 at p. 433, [1966] 1 Lloyd's Rep. 529 at p. 563 (H.L.). 52. 52 [1989] 2 Lloyd's Rep. 494 at p. 505. 53. 53 Ibid. 54. 54 Cour de Cassation, July 7, 1998 (The Atlantic Island), DMF 1998, 826, report J.-P. Rmery, observations by P. Bonassies, commentary by P. Bonassies, DMF Hors srie no. 3, 1999, no. 111 at p. 79. 55. 55 P. Bonassies, DMF 1998, 826 at p. 839.

56. 56 Hof van Cassatie van Belgi, December 1, 2000, (The OOCL Europe V), [2001] ETL 185. 57. 57 Belgium incorporated the Hague Rules 1924 into the Belgian Commercial Code by its law of November 28, 1928, in force January 22, 1929, which became art. 91 of Book II, Chapter III of the "Lois coordonnes". Belgium ratified the Hague Rules 1924 on June 2, 1930 and also became party to the Visby Protocol 1968 by its law of August 28, 1978 and the Visby S.D.R. Protocol 1979 by its law of August 17, 1983. But its internal law (art. 91 of the Commercial Code) was amended to give effect to the Hague/Visby Rules 1968/1979 only by the law of April 11, 1989. 58. 58 Hof van Beroep te Antwerpen, February 24, 1997 (The OOCL Europe V), [1997] ETL 202 at p. 206 and Belgian Hof van Cassatie van Belgi, December 1, 2000, [2001] ETL 185. See also Hof van Beroep te Antwerpen, March 10, 1997 (The Anna Maersk), [1997] ETL 208 at p. 212, holding that the carrying of containers on deck without a declaration to that effect on the bill of lading is a violation of the Hague and Hague/Visby Rules and a fundamental breach of the contract of carriage. Both decisions cite the third edition of this book. See also Rechtbank van Koophandel te Antwerpen, November 28, 1983 (The Sunny Karina) 1983 DMF 782 But see also Rechtbank van Koophandel te Anwerpen, January 11, 1993, [1993] ETL 251, which appears to uphold deck carriage of containers aboard container vessels designed for that purpose, and declaring a clause in the bill of lading authorizing such carriage binding on the holder in due course of the bill. 59. 59 See Hojgaard & Schultz v. Transamerican S.S. Corp. 590 F. Supp. 916 at p. 921, 1985 AMC 2129 at p. 2134 (S.D. N.Y. 1984), aff'd 762 F.2d 990, 1985 AMC 2408 (2 Cir. 1985): "... it is insufficient for the bill of lading to state that the carrier has an option to stow on deck; the bill of lading did not state 'that the cargo is being carried on deck'" (emphasis in original). See also I.N.A. v. Dart Containerline 629 F. Supp. 781 at p. 785, 1987 AMC 42 at p. 47 (E.D. Va. 1985); English Electric Valve Co., Ltd. v. M/V Hoegh Mallard 814 F.2d 84 at p. 89, 1987 AMC 1351 at p. 1359 (2 Cir. 1987); Neuenberger Schweizerische Allgemeine Versicherungs-Gesellschaft v. S.S. Aldebaran 1990 AMC 1886 at p. 1892, note 5 (S.D. N.Y. 1989). 60. 60 263 U.S. 119, 1923 AMC 1131 (1923): After a freight reservation had been entered into, containing the term "on or under deck, ship's option", a clean bill of lading was issued which did not contain a general liberty clause. The U.S. Supreme Court read the freight reservation and the bill of lading together as the contract, and declared that the carrier had had an option to carry on or under deck, but that the issuance by the ship of a clean bill of lading amounted to a positive representation that the option had been exercised and that the goods would be under deck. (Misinterpretation of the facts of this judgment has been the cause of much confusion.) See also Encyclopaedia Britannica v. S. S. Hong Kong Producer, 422 F.2d 7 at p. 14, 1969 AMC 1741 at p. 1753 (2 Cir. 1969); Lime International v. Alpha N.A. Line, 1979 AMC 2693 at p. 2696 (S.D.N.Y. 1979); I.N.A. v. Dart Containerline 629 F. Supp. 781 at p. 785, 1987 AMC 42 at p. 47 (E.D.

Va.d 1985) (if on-deck stowage not noted on face of bill of lading, shipper is entitled to expect below deck stowage notwithstanding fine print option clause on reverse side of bill); Neuenberger Schweizerische Allgemeine Versicherungs-Gesellschaft v. S.S. Aldebaran 1990 AMC 1886 at p. 1891 (S.D. N.Y. 1989). 61. 61 See Burdines, Inc. v. Pan-Atlantic S.S. Corp. 199 F.2d 571 at p. 573, 1952 AMC 1942 at p. 1944 (5 Cir. 1952); Chap. 4: "Interpretation of Bills of Lading and Superseding Clauses", supra. 62. 62 In Cour dAppel dAix, June 18, 1986, DMF 1986, 740, a clause in the bill of lading stipulated that the carrier was authorized to stow cargo on deck without having to inform the shipper and that the latter's consent would be deemed to have been given. The Court recognized the validity of such a clause, but held that the carrier nevertheless had the obligation to inform the shipper as soon as possible once the cargo was actually stowed on deck. Furthermore, deck stowage in any case had to be mentioned on the bill of lading in order for adequate insurance to be obtainable. See the critical note by R. Achard at DMF 1986, 743 and the critical comment by P. Bonassies in "Le droit positif franais en 1986", DMF 1987, at p. 82, no. 43. See also Cour de Cassation, December 16, 1965, JCP 1966, 14634 with note by R. Rodire. 63. 63 [1932] A.C. 328 at p. 340, (1931) 41 Ll. L. Rep. 165 at p. 170 (H.L.). 64. 64 [1953] 2 Lloyd's Rep. 124 at p. 125. 65. 65 Ibid., at p. 130. 66. 66 St.-Simeon Navigation Inc. v. A. Couturier (1974) 44 D.L.R. (3d) 478 (Supr. C. of Can.); Lime Intl. v. Alpha N.A. Line, 1979 AMC 2693 (S.D.N.Y. 1979). 67. 67 [1921] 3 K.B. 473, (1921) 8 Ll. L. Rep. 446 (the judgement begins at p. 497). 68. 68 24 F. Supp. 461,1938 AMC 1220 (W.D. Wa. 1938). 69. 69 263 U.S. 119, 1923 AMC 1131 (1923). 70.

70 91 F. Supp. 663, 1950 AMC 1235 (S.D.N.Y. 1950). The Court held that a oclean)) bill of lading implied under-deck stowage only when there was no specific provision as to stowage. The general liberty to carry on deck clause was a specific provision as to stowage and thus the issuing of this bill did not imply under-deck stowage. The Court added that oclean)) meant that there was nothing in the margin of the bill to qualify its wording. The cargo claimant argued, unsuccessfully, though correctly, that a oclean)) bill was a bill with no qualifying notations and with no specific provision as to stowage; since the bill here had no such notations and since the general liberty clause was not a specific provision as to stowage, the issue of its bill implied under-deck stowage. 71. 71 [1973] F.C. 726 at p. 732. 72. 72 858 F.2d 190 at p. 194, 1989 AMC 135 at p. 141 (4 Cir. 1988). 73. 73 Power Construction Ltd. v. Canadian National Railway Co. (1984) 48 Nfld. & P.E.I.R. 271 at p. 273, 142 A.P.R. 271 at p. 273 (Nfld. C.A.): "... unless specific permission to carry the goods on deck is apparent on the face of the bill of lading, deck stowage is improper stowage under Article 3(2) of the [Hague] Rules which requires a carrier to stow properly." 74. 74 Alternatively, the carrier may prefer to incorporate the Rules by reference into the bill of lading, expressly applying them to the deck cargo. See Power Construction Ltd. v. Canadian National Railway Co. (1984) 48 Nfld. & P.E.I.R. 271 at p. 273, 142 A.P.R. 271 at p. 273 (Nfld. C.A.), involving deck carriage of a crane too large to be accommodated elsewhere on the ship. Although no bill of lading was actually issued, one was seemingly contemplated, so that the carriage was "covered" by a bill of lading. The Court held that if the bill had been issued, it would probably have noted the deck carriage on its face, thus making the Rules inapplicable by operation of law, but would have probably incorporated the Rules by reference, in accordance with the carrier's standard Hague Rules bill of lading form, thus making them applicable by contract. 75. 75 1930 AMC 1743 at p. 1758, (1930) 38 Ll. L. Re. 22 at p. 30 (S.D. N.Y. 1930). 76. 76 See, for example, Royal Exchange Assurance of America, Inc. v. M/V Hoegh Dene 1988 AMC 868 at p. 874 (W.D. Wash. 1987); Sail America Foundation v. M.V. T.S. Propsperity 778 F. Supp. 1282 at p. 1286, note 1, 1992 AMC 1617 at p. 1623, note 1 (S.D. N.Y. 1991), expressly denying that a bill of lading lacking an on-deck notation constituted a quasi-deviation where the parties agreed to such carriage. 77.

77 422 F.2d 7, 1969 AMC 1741, [1969] 2 Lloyd's Rep. 536 (2 Cir. 1969). 78. 78 (1974) 44 D.L.R. (3d) 478; in first instance [1970] Ex. C. R. 1012. See also Cour d'Appel de Paris, May 19, 1980, DMF 1980, 607 where notice had to be given to the shipper of deck carriage in the case of non-container cargo. 79. 79 543 F.2d. 967, 1976 AMC 487 (2 Cir. 1976). 80. 80 814 F.2d 84 at p. 89, 1987 AMC 1351 at p. 1359 (2 Cir. 1987). 81. 81 1999 AMC 1080 at p. 1087 (S.D. N.Y. 1999). 82. 82 [1970] Ex. C.R. 672. See also Ingersoll Milling Machine Co. v. M. V. Bodena, 619 F. Supp. 493 (S.D. N.Y. 1985), aff'd in pertinent part, 829 F.2d 293, 1988 AMC 223 (2 Cir. 1987), cert. denied 484 U.S. 1042, 1988 AMC 2399 (1988). 83. 83 Ibid., [1970] Ex. C.R. 672 at p. 678. 84. 84 361 F.2d. 833 at p. 838, 1966 AMC 1405 at p. 1412 (5 Cir. 1966). 85. 85 Royal Embassy v. Ioannis Martinos, 1986 AMC 790 at p. 794 (E.D. N.C. 1984); Royal Exchange Ass. v. S.S. President Adams, 510 F. Supp. 581 at p. 585 (W.D. Wash. 1981); English Electric Valve Co. v. Hoegh Mallard, 814 F.2d 84 at p. 89, 1987 AMC 1351 at p. 1359 (2 Cir. 1987); Sail America Foundation v. M.V. T.S. Prosperity 778 F. Supp. 1282 at p. 1285, 1992 AMC 1617 at p. 1622 (S.D. N.Y. 1991). 86. 86 962 F. Supp. 86 at p 88, 1997 AMC 2431 at p. 2432 (E. D. La. 1997). 87. 87 Sheerwood et al. v. The Lake Eyre et al., [1970] Ex. C.R. 672 (Ex. C. Can.) See also The Ardennes, [1951] 1 K. B. 55 at p. 59, (1950) 84 Ll. L. Rep. 340 at p. 344; Grace Plastics Ltd. v. The Bernd Wesch II [1971] F.C. 273 at p. 278 (Fed. C. Can.). 88.

88 See Chap. 9: "Proving the Contract or the Tort", supra. 89. 89 See Ingersoll Milling Machine Co. v. M/V Bodena 829 F.2d 293, 1988 AMC 223 (2 Cir. 1987), cert. denied 484 U.S. 1042, 1988 AMC 2399 (1988), where the original oral understanding between the parties, that the goods would be carried on deck, was held not to have been altered by the subsequent issuance of a bill of lading containing the notation "on deck shipper's risk". 90. 90 Ingersoll Milling Machine Co., supra. 91. 91 Art. 22 second para. of Law No. 66-420 of June 18, 1966, as amended by Law No. 79-1103 of December 21, 1979. 92. 92 Art. 9(l) of the United Nations Convention on the Carriage of Goods by Sea, 1978, signed at Hamburg, March 31, 1978, and in force November 1, 1992. 93. 93 Diethelm & Co. v. S. S. Flying Trader 141 F. Supp. 271, 1956 AMC 1550 (S.D.N.Y. 1956). The carrier and shipper contracted to apply COGSA to deck cargo and the carrier was held responsible because it was unable to prove peril of the sea. See also Uniao de Transportadores v. Acoreanos 84 F. Supp. 582, 1949 AMC 1161 (E.D.N.Y. 1949); West Ayska (Waterman S.S. Corp. v. United States S.R. & M.) 155 F.2d. 687, 1946 AMC 997 (5 Cir. 1946); Pannell v. S.S. American Flyer 157 F. Supp. 422, 1958 AMC 1428 (S.D.N.Y. 1957); General Motors Corp. v. S.S. Mormacoak 327 F. Supp. 666, 1971 AMC 1647 (S.D. N.Y. 1971); Power Construction Ltd. v. Canadian National Railway Co. (1984) 48 Nfld. & P.E.I.R. 271 at p. 273, 142 A.P.R. 271 at p. 273 (Nfld. C.A.). But see also Cour de Cassation, July 5, 1988, [1990] ETL 221, holding that a paramount clause in a bill of lading making the Hague Rules applicable to deck cargo could be relied upon against the consignee only if he had accepted it. See also Rechtbank van Koophandel te Gent, June 19, 1990, [1991] ETL 377, indicating that the application of the Hague/Visby Rules to deck carriage is governed by the maritime law only by agreement and that its application is not mandatory. 94. 94 Law No. 66-420 of June 18, 1966, as amended by Law No. 79-1103 of December 21, 1979, and by Law No. 86-1292 of December 23, 1986. 95. 95 Ibid. Law No. 66-420 at art. 60. 96. 96 See generally Rodire, 12 Ed., 1997, para. 353; Rmond-Gouilloud, 2 Ed., 1993,

para. 564; Vialard, para. 459. 97. 97 See, for example, Cour d'Appel de Paris, March 2, 1988 (The Rhone), DMF 1989, 239 at p.243, for an interesting discussion of whether sea transport from the French mainland to Corsica is "petit cabotage", thus authorizing deck carriage. The Court did not have to decide the point, however, because the commissionnaire de transport, acting as shipper under the bill of lading, had signed and thus approved a clause of the bill expressly authorizing deck carriage on that route. 98. 98 See, for example, Cour d'Appel de Paris, March 23, 1988 (The Radbod), DMF 1989, 229 at p. 237, where the Court found that because part of the cargo was a dangerous chemical, the carrier committed no fault in opting to load it on deck under a liberty clause of its bill of lading granting that option. 99. 99 See, for example, Cour d'Appel d'Aix, April 29, 1990 (The Al-Hoceima), DMF 1991, 105 at p. 108, note P. Bonassies. 100. 100 Art. 3 of Law No. 79-1103 of December 21, 1979 added this provision to art. 22 of Law No. 66-420 of June 18, 1966. See also Rodire, "Le Droit positif franais en 1980" DMF 1981, 3 at p. 5. This presumption is rebuttable however. See also Rodire & du Pontavice, 12 Ed., 1997, para. 353. 101. 101 The Law of June 18, 1966 does not contain as specific a definition of deck carriage as does art. 1(c) of the Hague Rules, and the consent is deemed to have been granted by the shipper's signature. See Cour de Cassation, December 16 1965, DMF 1966, 269 with note by P. Lureau at p. 718 and note by R. Rodire, JCP 1966 II 14634; Cour d'Appel de Paris, February 17, 1977, DMF 1977, 535. See Rodirre, Trait Gnral. Affrtements & Transports, Vol. 2, 1968 at paras. 521 & 522; Du Pontavice, Transports Maritimes et Affrtements, 1970 para. H-9; Raymond Achard, Chargement en ponte irrgulier, DMF 1983, 3 at p. 4. 102. 102 Decree No. 66-1078 art. 37, as amended by art. 2 of Decree No. 87-922 of November 12, 1987. 103. 103 Rodire & du Pontavice, 12 Ed., 1997, para. 353 note 5l; Vialard, 1997, para. 460. 104. 104 See Cour d'Appel d'Aix, June 18, 1985, DMF 1986, 740, note Achard.

105. 105 See Rodire & du Pontavice, 12 Ed., 1997, para. 353 note 4; "Le rfr-injonction, une nouvelle arme pour les cranciers presss", Bulletin des Transports 1986, .389. 106. 106 See Vialard, 1997, para. 461; Rmond-Gouilloud, 2 Ed., 1993, para. 563; Rodire & du Pontavice, 12 Ed., 1997, para. 353. In Cour d'Appel d'Aix, February 22, 1985, DMF 1987, 426, the Court held that, because the carrier had committed a fault by stowing on deck contrary to the shipper's instructions, he could not exculpate himself by raising the peril of the sea defence. 107. 107 Law No. 86-1292 of December 23, 1986, art. 2 amending art. 28 of Law No. 66-420 of June 18, 1966. 108. 108 Rodire & du Pontavice, 12 Ed., 1997, para. 353, note 5 and para. 378; Vialard, paras. 461 and 493; Rmond-Gouilloud, 2 Ed., 1993, paras. 566 and 597. See also Cour de Cassation, January 7, 1997 (The Teleghma), DMF 1997, 397, note Ph. Delebecque, Bulletin des Transports 1997, 237, Revue Scapel 1997, 16; commentary by P. Bonassies, DMF Hors srie no. 2, 1998, no. 101 at p. 68. 109. 109 Rodire & du Pontavice, 12 Ed., 1997, para. 378; Rmond-Gouilloud, 2 Ed., 1993, para. 597. See also The Teleghma, ibid., critical commentary by P. Bonassies, DMF Hors srie no. 2, 1998, no. 101 at p. 68; critical commentary by R. Achard on Cour d'Appel de Rouen, February 18, 1999 (The Dusseldorf Express), DMF 2000, 231 at pp. 243-244. There is as yet no decision as to whether a "personal" act or omission of the carrier is required under France's international regime, the Hague/Visby Rules. See P. Bonassies' commentary (DMF 1996 no. 78bis at p. 256) on The European Enterprise [1989] 2 Lloyd's Rep. 185, an English decision holding that art. 4(5)(e) of the Hague/Visby Rules contemplates only the carrier's personal acts or omissions done with intent to cause the damage or recklessly with knowledge that the damage would probably result, and not the intentional or reckless acts or omissions of the carrier's servants or agents. Bonassies notes that in French law, the faute qualifie (e.g. intention or recklessness) of the servant (e.g. the master or crew) is normally assimilated to the faute qualifie of the employer (e.g. the carrier). He nevertheless recognizes that art. 4(5)(e) of the Hague/Visby Rules, unlike art. 25 of the Warsaw Convention 1929 as amended by its Hague Protocol 1955 and other conventions, refers only to the carrier, and not to its servants or agents. He concludes that the Cour de Cassation will eventually have to decide the scope of art. 4(5)(e) in France. Rodire & du Pontavice, 12 Ed., 1997, at para. 393 note 2, take the position that art. 4(5)(e) relates only to the dol or faute inexcusable of the carrier and not to that of the carrier's servants or agents. 110. 110 DMF 1978, 527, overruling Cour d'Appel de Paris, May 24, 1976, DMF 1976, 587. Cour de Cassation, July 18, 1984, DMF 1985, 210, with note by R. Achard.

111. 111 The carrier rarely intends to cause damage to the cargo interests; rather, he seeks his own beneit. 112. 112 Cour de Cassation, February 4, 1968, Dalloz 1969.601, with note by J. Mazeaud; see also Cour de Cassation, October 8, 1975, JCP 1975.IV.346. 113. 113 The decision by the Cour de Cassation, of January 30, 1978 has been subject to severe criticism: see P. Chauveau, Rtrospectives d'actualits, DMF 1979, 65 at p. 71; E. du Pontavice, Revue trimestrielle du droit commercial, 1981, 151. See also Cour de Cassation of Belgium, May 25, 1979, [1980] ETL 175, where the carrier was denied the benefit of limitation of liability in a case of deck carriage under a clean bill of lading. On the meaning of dol in French maritime law, as opposed to its wider meaning in French civil law, see also Rodire & du Pontavice, 12 Ed., 1997, para. 378 note 2, Vialard, para. 493 note 1. 114. 114 See note by R. Achard appended to Cour de Cassation, March 18, 1986, DMF 1987, 285 at p. 289. The decision on this issue in Cour d'Appel de Paris, March 24, 1986, DMF 1987, 23 at p. 29 may also have been prophetic. In respect of the carrier's legal position prior to Law No. 86-1292 of December 23, 1986, see Cour de Cassation, April 29, 1969, DMF 1969, 613, with note by P. Lureau; see also Rodire, Trait, Transports et Affrtements, t. 2, paras. 675 et seq. On the basis of the Cour de Cassation, March 11, 1960, DMF 1960, 331, even faute inexcusable is insufficient to deny the limitation of liability under French internal law; it is sufficient in cases where the international regime applies: R. Achard, Chargement en ponte irrgulier, DMF 1983, 3 at p. 11. See also Cour de Cassation, January 7, 1997 (The Teleghma), DMF 1997, 397, note Ph. Delebecque, Bulletin des Transports 1997, 237, Revue Scapel 1997, 16; commentary by P. Bonassies, DMF Hors srie no. 2, 1998, no. 101 at p. 68. See also Cour d'Appel de Rouen, February 18, 1999 (The Dusseldorf Express), DMF 2000, 231, observations R. Achard. 115. 115 See Cour de Cassation, January 7, 1997 (The Teleghma), DMF 1997, 397, note Ph. Delebecque, Bulletin des Transports 1997, 237, Revue Scapel 1997, 16; commentary by P. Bonassies, DMF Hors srie no. 2, 1998, no. 101 at p. 68. The exclusion of faute lourde appears to be unchanged from the law prior to the 1986 amendment, as established under the former Law of April 2, 1936 by a decision of the joint chambers of the Cour de Cassation on March 11, 1960, Dalloz 1960, 277, note Rodire, DMF 1960, 331. This exclusion was reflected in the drafting of art. 28(a) of Law no. 66-420 of June 18, 1966 (prior to the 1986 amendment), which recognized only dol as breaking the carrier's package limitation. See Rmond-Gouilloud, 2 Ed., 1993, para. 596. The same interpretation of the original art. 28(a) of 1966 was reiterated in Cour de Cassation, March 18, 1986, DMF 1987, 285, note R. Achard and Cour de Cassation, May 24, 1994, DMF 1994, 598, commentary by P. Bonassies, DMF 1995, no. 79 at p. 195. 116.

116 Cour d'Appel d'Aix, September 29, 1959; DMF 1960, 90. Ren Rodire, Trait Gnral, Affrtements et Transports, Tome II, para. 675, noted with regret that faute lucrative (fault where a person acts for his personal monetary benefit) was not included in the Law of June 18, 1966. See also Rodire & du Pontavice, 12 Ed., 1997, para. 378. 117. 117 In respect of deck carriage in particular, see Cour d'Appel de Nouma, October 1, 1998, Bulletin des Transports 1999, 444, critical commentary by P. Bonassies, DMF Hors srie, no. 4, 2000, no. 81 at pp. 61-62. 118. 118 Note accompanying Cour d'Appel de Paris, May 26, 1978, in Bulletin des Transport, no. 1862, p. 118. 119. 119 Cour d'Appel de Paris, October 1, 1986. DMF 1987, 431 at p. 436; du Pontavice, Transports Maritimes et Affretements, 1970, p. H-10. 120. 120 Cour d'Appel de Paris, May 24, 1976, DMF 1976, 587. 121. 121 R. Achard, Chargement en ponte irrgulier, DMF 1983, 3 at p. 6. Rodire, on the other hand, argues that the Hague/Visby Rules do not apply to deck carriage whether permissible or not. 122. 122 See Chap. 5: "Fundamental Breach, Quasi-deviation and Rupture of the Contract". 123. 123 DMF 1983, 26 with note by P.-Y. Nicholas at p. 151. 124. 124 The general liberty to carry on deck clause in the bill of lading covered only certain specified types of deck cargo, but not the type of cargo that was lost here: Cour dAppel de Paris, May 19, 1980, DMF 1980, 607 at p. 610. 125. 125 Ibid. 126. 126 A similar approach had been taken by an English Court in Svenska Traktor Aktielbolaget v. Maritime Agencies (Southampton) Ltd., [1953] 2 Lloyd's Rep. 124.

127. 127 The Court furthermore adopted the narrow construction of dol, i.e. intention to cause damage, which had been used by the Cour de Cassation, January 30, 1978 and for which this decision was severely criticized, supra. 128. 128 R. Achard, Chargement en ponte irrgulier, DMF 1983, 3 at p. 11. Rodi&e in Traiti, Affretements et Transports, t. 2, para. 525 states that limitation of liability is rarely lost because otherwise the carrier is subject to a private penalty which can only be imposed by a clear text of law. 129. 129 Cour de Cassation, July 7, 1998 (The Atlantic Island), DMF 1998, 826, report Rmery, note P. Bonassies, Bulletin des Transports 1998, 570, Revue Scapel 1998, 96; [1998] ETL 797; commentary by P. Bonassies, DMF Hors srie no. 3, 1999, no. 94 at p. 71. 130. 130 1997 AMC 1568 (S.D. Ga. 1996), aff'd in pertinent part without discussion, 139 F.3d 1450, 1998 AMC 1965 (11 Cir. 1998), cert. denied, 119 S.Ct. 405, 142 L.Ed.2d 328 (1998). 131. 131 Ibid. 1997 AMC at p. 1584. 132. 132 [1995] 2 Lloyd's Rep. 290 (N.Z. High C.). 133. 133 In general, courts in the Commonwealth countries and the United States take a "subjective" view of "recklessness with knowledge" of the probability of the damage, focussing on whether the defendant "must have been aware" of the likely effects of his acts or omissions, whereas French courts prefer an "objective" interpretation, focussing on whether the defendant "should have" been aware of the risks occasioned by his conduct. See Chap. 5: "Fundamental Breach, Deviation, Quasi-Deviation and Rupture of the Contract", supra and authorities cited there. 134. 134 The Antares (Nos. 1 and 2), [1987] 1 Lloyd's Rep. 424 (C.A.). See also The Chanda [1989] 2 Lloyd's Rep. 494 at p. 505. 135. 135 [1995] 2 Lloyd's Rep. 290 (N.Z High C.).

136. 136 Ibid. at p. 296. See also Itel Container Corp. v. M/V Titan Scan 1997 AMC 1568 at p. 1584 (S.D. Ga. 1996), supra. 137. 137 [1995] 2 Lloyd's Rep. 290 at p. 296 (N.Z High C.). 138. 138 See The European Enterprise [1989] 2 Lloyd's Rep. 185 at pp. 191-192; The Lion [1990] 2 Lloyd's Rep. 144 at pp. 149-150. The latter decision was, however, a carriage of passengers case, so that statements made there with respect to art. 4(5)(e) of the Hague/Visby Rules were obiter dicta. The decisions on this point hinge on the fact that the Hague/Visby Rules, unlike certain other international transport conventions (e.g. the Warsaw Convention 1929 and the Athens Passenger Convention 1974) do not expressly include "servants and agents" in art. 4(5)(e). 139. 139 [1995] 2 Lloyd's Rep. 290 at p. 297 (N.Z. High C.): "The recklessness on the part of the master is what is in issue... On this finding the defendant cannot rely on the limitation in the Hague-Visby Rules in any event." 140. 140 See Scrutton, 20 Ed., 1996 at pp. 451-452, citing The European Enterprise [1989] 2 Lloyd's Rep. 185 at p. 191, which in turn had cited Scrutton's 18 Ed., 1974 at p. 463 and 19 Ed., 1984 at p. 456, on the same point. See also Sellers Fabrics Pty. Ltd. v. HapagLloyd AG, New South Wales Supreme Court, October 29, 1998, unreported by summarized by S. Derrington & M. White, "Australian Maritime Law Update: 1998" (1999) 30 JMLC 419 at pp. 424-426. 141. 141 United Nations Convention on the Carriage of Goods by Sea, 1978, signed at Hamburg, March 31, 1978 and in force November 1, 1992. 142. 142 Art. 9(l) of the Hamburg Rules starts out with great bluster against deck carriage but is soon watered down by exceptions so that the carrier may carry on deck in many more situations than under the Hague Rules and the sanctions for unjustified deck carriage are much weaker. See Tetley, The Hamburg Rules -A Commentary, [1979] LMCLQ 1 at pp. 10 & 11. 143. 143 Reference to usage or custom is ill-advised in an international convention intended to clarify and standardize the law. 144.

144 This is an intelligent provision. See art. 22 of Law No. 66-420 of June 18, 1966 of France.