Does a general exclusion clause in B/L cover loss/damage to cargo caused by negligence or unseaworthiness? The answer is quite jurisdiction specific. Under English law, the position wasn’t very clear - until now.
In The Elin [2019] cargo carried on deck was lost/damaged in heavy wx. B/L stated 70 packages as carried on deck. It had a general paramount cl, and an exclusion cl stating “Carrier shall in no case be responsible for loss or damage to cargo, howsoever arising…in respect of deck cargo.”
Hague rules do not apply if cargo is loaded on deck and so stated in the B/L. Other terms of B/L are then to be looked at to see who bears the risk of cargo damage/loss – in this case the exclusion cl. Shipowner’s interpretation was that the words ‘howsoever arising’ refer to all causes of loss/damage, including negligence & unseaworthiness. Charterers contended that it should be given a restrictive meaning.
Court found it difficult to imagine words which are wider in effect than ‘howsoever caused’, and held that under English law it comprehends all loss/damage, irrespective of how that may originate, thus following The Imvros, and ignoring the judicial & academic criticism it had received. Worth mentioning that in Canada & Singapore outcome would have been different.
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