Where a bill of lading provided that ‘the carrier shall in no case be responsible for loss of or damage to the cargo, howsoever arising … in respect of deck cargo’ the English High Court held that the provision effectively excluded liability for deck cargo which was lost overboard from the vessel in heavy seas.

Where liability may realistically arise otherwise than through negligence, the exemption clause should usually be interpreted as not exempting liability for negligence. But where regard was had to the plain language and good commercial sense applied to the words of the bill of lading exemption it excluded liability for negligence. The court said it was difficult to imagine words of exemption which are wider in effect than ‘howsoever caused’. This was said to be, on the authorities, the classic phrase with which to exclude liability for negligence and unseaworthiness (seaworthiness of the vessel being a requirement of sea carriage). The owner was therefore held not liable for any loss of or damage to any cargo carried on deck even if the loss or damage was caused by unseaworthiness or negligence.

Like all English judgments the court trawled through all the past authorities to reach this conclusion. In South Africa the words will be examined according to the meaning of the words and their purpose and in their context.

The case is Aprile S.P.A and others v Elin Maritime Limited.