BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
KING'S BENCH DIVISION
COMMERCIAL COURT
Fetter Lane, London, EC4A 1NL |
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B e f o r e :
SITTING AS A JUDGE OF THE HIGH COURT
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STOURNARAS STYLIANOS MONOPROSOPI EPE |
Claimant |
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- and - |
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MAERSK A/S |
Defendant |
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John Passmore KC (instructed by Campbell Johnston Clark) for the Defendant
Hearing Dates: 23-25 and 29 January 2024
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Crown Copyright ©
Lionel Persey KC :
Introduction
The witnesses
(1) Mr Dolphin Raj. He is a Customer Experience Consultant based in Dubai. He has been employed by companies within the Maersk group for much of the time since 2012.
(2) Mr Sandeep Kasalkar. He is a Manager of the Cargo Execution Team.
(3) Mr Vinay Sriganesh. He has been with Maersk since 2004 and in his current role he handles process and system design for export documentation.
(4) Mr Alexandros Chronopoulos. He is a manager employed by Maersk at their Piraeus office.
The facts
The Shipment
(1) No. 093110 dated 14 November 2019 (the "First Contract");
(2) No. 11310 dated 16 November 2019 (the "Second Contract"); and
(3) No. 10310 dated 16 November 2019 (the "Third Contract").
Declared weights (kg) | VGM weights (kg) | |
First Bill Total | 52,110 | 16,200 |
MRKU6501852 | 26,350 | 8,100 |
MRKU7670179 | 25,760 | 8,100 |
Second Bill Total | 100,210 | 44,000 |
MSKU5432506 | 25,850 | 11,100 |
MRKU8145180 | 24,350 | 10,900 |
TGHU2778246 | 24,250 | 11,100 |
MRKU9027650 | 25,760 | 10,900 |
Third Bill Total | 198,560 | 82,900 |
MSKU4261100 | 24,250 | 10,500 |
MRKU8347725 | 23,760 | 11,200 |
SUDU1437653 | 24,890 | 10,900 |
MRKU9560355 | 25,850 | 9,900 |
HASU1559181 | 24,350 | 10,000 |
MRSU0151430 | 24,670 | 9,800 |
TLLU2408092 | 25,660 | 10,400 |
PONU2040902 | 25,130 | 10,200 |
Overall Total | 350,880 | 143,100 |
Proceedings in Dubai
(1) Mr Stournaras agreed with the Shippers that the goods would not be loaded at Jebel Ali Port except under his personal supervision. On 25 November 2019 the Shippers took pictures of the agreed goods and sent them to Mr Stournaras to enable a permit to be issued by the port of Jebel Aliwhich allowed him to enter the port.
(2) The next day, the Shippers handed over to Mr Stournaras the original bill of lading and the remaining documents in accordance with the terms of contracts Nos. 093110 and 11310, and also provided the plaintiff with photographs of the trucks loaded with contracted materials. The balance of the sums due in respect of the first and second contracts were then paid in the sum of USD 459,031.
(3) The Shippers kept Mr Stournaras at his hotel on 27 November 2019. He later warned the Shippers that the weights on the bill of lading were not the same as the VGM announced on the official page of Maersk. This prompted him to ask them to assign a company to inspect the shipments sent by the Shippers. The Shippers delayed and procrastinated, and Mr Stournaras was unable to attend the loading carried out in accordance with the terms of the contract or to instruct the presence of a neutral and specialized company in order to monitor the shipment.
Maersk's Systems
The GCSS
The Portal
CODS
VGM
" Cargo information
1 The shipper shall provide the master or his representative with appropriate information on the cargo sufficiently in advance of loading to enable the precautions which may be necessary for proper stowage and safe carriage of the cargo to be put into effect. Such information shall be confirmed in writing and by appropriate shipping documents [meaning "a document used by the shipper to communicate the verified gross mass of the packed container"] prior to loading the cargo on the ship.
2 The cargo information shall include:
1 in the case of cargo carried in cargo units, a general description of the cargo, the gross mass of the cargo units, and any relevant special properties of the cargo
3 Prior to loading cargo units on board ships, the shipper shall ensure that the gross mass of such units is in accordance with the gross mass declared on the shipping documents ..."
" 4 In the case of cargo carried in a container the gross mass according to paragraph 2.1 of this regulation shall be verified by the shipper, either by:
1. weighing the packed container using calibrated and certified equipment; or
2. weighing all packages and cargo items and adding the tare mass of the container to the sum of the single masses, using a certified method approved by the competent authority of the State in which packing of the container was completed ....
5 The shipper of a container shall ensure the verified gross mass is stated in the shipping document. The shipping document shall be:
1. signed by a person duly authorised by the shipper; and
2. submitted to the master or his representative and to the terminal representative sufficiently in advance, as required by the master or his representative, to be used in the preparation of the ship stowage plan.
6 If the shipping document, with regard to a packed container, does not provide the verified gross mass and the master or his representative and the terminal representative have not obtained the verified gross mass of the packed container, it shall not be loaded on to the ship ..."
The Bills of Lading
(1) Records the Shippers as "Shipper" and the Claimant as "Consignee".
(2) Gives the "Port of Loading" as Jebel Ali and the "Port of Discharge" as Piraeus.
(3) Under the heading "Particulars furnished by Shipper", includes the information set out by the Shippers in their shipping instructions. Those particulars included (1) an identification of the number of containers furnished by the Shippers, which were said to contain copper scrap; (2) A declaration that the copper scrap had a unit price "U/P" corresponding to the prices set out in the Contracts, i.e., US$3,200/MT for the First Contract, US$4,200/MT for the Second Contract, and US$4,700/MT for the Third Contract; and (3) the declared weights which I have tabulated in paragraph 15 above.
(4) Following this, it is stated "Above particulars as declared by Shipper, but without responsibility of or representation by Carrier (see clause 14)".
(5) In the box "Carrier's receipt", states the number of containers shipped under each Bill.
(6) States "... Shipped, so far as ascertained by reasonable means of checking, in apparent good order and condition unless otherwise stated herein, the total number or quantity of Containers or other packages or units indicated in the box entitled "Carrier's Receipt" for carriage from the Port of Loading to the Port of Discharge such carriage being always subject to the terms, rights, defences, provisions, conditions, exceptions, limitations and liberties hereof (INCLUDING ALL THOSE TERMS AND CONDITIONS ON THE REVERSE HEREOF NUMBERED 1-26 "
(1) That "Carrier" means Maersk AS;
(2) That "Container" is defined as " any container (including an open top container), flat rack, platform, trailer transportable tank pallet or any other similar article used to consolidate the Goods and any connected equipment ";
(3) That "Goods" are defined as " the whole or any part of the cargo and any packaging accepted from the Shipper and includes any Container unit supplied by or on behalf of the Carrier "
(4) That "Merchant" is defined as including " the Shipper, Holder, Consignee, Receiver of the Goods, any Person owning or entitled to possession of the Goods or of this bill of lading and anyone acting on behalf of such Person ..."
(5) Clause 5.1, which provides that " The liability of the Carrier for loss of or damage to the Goods occurring between the time of acceptance by the Carrier of custody of the Goods at the Port of Loading and the time of the carrier tendering the Goods for delivery at the Port of Discharge shall be determined in accordance with Articles 1-8 of the Hague Rules save as otherwise provided in these Terms and Conditions. These articles of the Hague Rules shall apply as a matter of contract ..." ;
(6) Clause 14.2, which provides that " No representation is made by the Carrier as to the weight, contents, measure, quantity, quality, description, condition, marks, numbers or value of the Goods and the Carrier shall be under no responsibility whatsoever in respect of such description or particulars ";
(7) Clause 14.3, which provides that " the Shipper warrants to the Carrier that the particulars relating to the Goods as set out on the reverse thereof have been checked by the Shipper on receipt of this bill of lading and that such particulars, and any other particulars furnished by or on behalf of the Shipper, are adequate and correct "
(8) Clause 15.2, which provides that " the Merchant shall be liable for and shall indemnify the Carrier against all loss, damage, delay, fines, attorneys fees, and/or expenses arising from any breach of any of the warranties in clause 14.3 or elsewhere in this bill of lading and from any other cause whatsoever in connection with the Goods for which the Carrier is not responsible "
The Claims and Counterclaims
(1) First, it says that Maersk was in breach of Article III rule 3(c) of the Hague Rules (as contractually incorporated into the Bills of Lading). This Article required Maersk to carry out its assessment of the "apparent order and condition of the goods", which it was then required to record in the Bills of Lading. The Claimant submits that the weight discrepancy here was so serious that it cast obvious doubt as to the order and condition of the goods.
(2) Secondly, it claims in tort on the basis of the established torts of deceit or negligent misstatement. The claim in deceit was withdrawn in the Claimant's written Closing Note. Maersk's defence is that it gave no representation as to the weight of the consignments, because the Bills of Lading included the standard printed words "weight unknown". However, the Claimant says that there are two answers to that: (a) the representation relied upon relates not to the weight simpliciter but whether or not Maersk had reasonable grounds to suspect that the declared weights were not representative of the goods received; and (b) in any event, the "weight unknown" formulation is not sufficient to negative liability where the carrier knew or ought to have known that the figure declared by the shipper is wrong.
(3) Thirdly, on the basis that a carrier owes a named consignee a tortious or implied contractual duty of care to take reasonable steps not to issue a clean bill of lading which includes, without qualification, shipper's particulars that a reasonably competent carrier would know or suspect on reasonable grounds to be fraudulent.
The Claims
What Maersk knew and what it ought to have known
" there was no reason to suspect that those weights were wrong there's no reason to suspect that a shipper-declared VGM and a shipper-declared weight or a terminal-declared VGM and a shipper-declared weight would be grossly different "
Claim 1: Breach of Article III.3(c) of the Hague Rules
" After receiving the goods into his charge, the carrier, or the master or agent of the carrier, shall, on demand of the shipper, issue to the shipper a bill of lading showing, among other things-
(a) The leading marks necessary for identification of the goods ;
(b) Either the number of packages or pieces, or the quantity, or weight, as the case may be, as furnished in writing by the shipper;
(c) The apparent order and condition of the goods:
Provided that no carrier, master or agent of the carrier, shall be bound to state or show in the bill of lading any marks, number, quantity or weight which he has reasonable grounds for suspecting not accurately to represent the goods actually received, or which he has no reasonable means of checking ..."
(1) The cases begin with The Peter de Grosse [1875] 1 P 414. This case concerned a cargo of feathers in bags found upon discharge to be damaged externally and internally. Sir Robert Phillimore said this of the bill of lading wording, "Shipped in good order and well-conditioned":
"fairly construed the result must be that apparently, and so far as met the eye, and externally, they were placed in good order on board this ship."
(2) Next is The Tromp [1921] P 337, which concerned a cargo of potatoes in bags. The bags and contents were found to be wet. The bill of lading acknowledged shipment "in good order and condition 2923 bags of potatoes, 140,304 kilos ". Further wording stated: "weight, quality condition and measure unknown" (the word "weight" was added to the printed wording before the master signed). Sir Henry Duke, President, said this:
" The words "weight and measure unknown" do not qualify the acknowledgment that there were shipped 2923 bags. The words "quality, condition unknown" do not cover the whole area of the representation made by the words "shipped in good order and condition." The representation made by the bill of lading, including the qualifying words, is that 2923 bags of potatoes were shipped in good order, and that the weight, quality, condition and measure of the goods were unknown. In Compania Naviera Vasconzada v. Churchill & Sim Channell J. distinguished the meanings of "condition" and "quality" as those terms are applied to goods, and defined "condition" as referring usually to external appearance. The goods there under consideration consisted of sawn timber. "In good order" and "in good condition" may perhaps have the same meaning when they relate to deals or planks, because the external state of the goods is there apparent. All that appears to the eye upon a shipment of potatoes in bags is the state of the packages. The good order of the shipment and the condition and quality of the goods are, or at any rate may be, separate matters. The defendants, while they guarded themselves by the qualifying words in the bill of lading from making any representation as to the condition and quality of the potatoes shipped on the Tromp, made a representation as to the state of the bags. Bags of potatoes in good order are not externally wet ..."
(3) Finally, in The Tai Prize [2021] 2 Lloyd's Rep 3611 Males LJ reviewed authorities including The Peter der Grosse (above), Silver v Ocean Steamship Co Ltd [1930] 1 KB 416 and The David Agmashenebeli [2003] 1 Lloyd's Rep 92, and said this:
" 47. Several points are clear from these cases.
48. First, a statement in a bill of lading as to the apparent order and condition of the cargo refers to its external condition, as would be apparent on a reasonable examination.
49. Second, what amounts to a reasonable examination depends on the actual circumstances prevailing at the load port. The master's responsibility is to take reasonable steps to examine the cargo, but he is not required to disrupt normal loading procedures. If cargo is loaded at night, as in Silver v Ocean Steamship Co Ltd, the master must do the best he can in the prevailing conditions. For example, he is not required to wait until daylight, when visibility would be better. In the same way, he is not required, if a grain cargo is loaded continuously from silos, to pause the loading from time to time in order to let the dust settle and examine the cargo in the vessel's holds. I read the arbitrator's comment that this 'was obviously not the modus operandi of loading soya beans' as meaning that it would not have been reasonable for the master to insist on this being done. With other kinds of cargo, however, it may be much easier for the master to observe the condition of the cargo without needing to disrupt the loading process. Steel cargoes, as in The Nogar Marin, The Sea Success and The Saga Explorer, are an example. In such cases the master will have an opportunity to observe the condition of the cargo as it is brought alongside and before it is loaded. In the case of bulk grain cargoes, however, he may only be able to observe the surface condition of the cargo after it has been loaded in each hold.
50. Third, what matters is what is reasonably apparent to the master or other servants of the carrier. The bill of lading contains a representation by the master and says nothing about what may be apparent to anyone else, such as the shipper, who may have other means of examining the cargo.
51. Fourth, the statement relates to the apparent order and condition of the cargo at the time of shipment, that is to say of receipt by the carrier, and not at any earlier time.
52. Fifth, the statement is based upon the reasonable examination of the cargo which the master has (or should have) undertaken. As Mustill LJ put it in The Nogar Marin ([1988] 1 Lloyd's Rep 412) at p. 422 col 2: 'Everyone in the shipping trade knows that the master need not sign a clean bill just because one is tendered; everyone knows that it is the master's task to verify the condition of the goods before he signs.' "
(1) The apparent order and condition of goods received must be judged against the stated description of those goods; see e.g. The Sea Success [2005] 2 Lloyd's Rep 692 at 12(3); Trade Star Lines Corp v Mitsui & Co Ltd [1997] C.L.C. 174 at 177. These cases do not in my view assist the Claimant. The Sea Success was a case involving the application of a charterparty term which required the master to reject any cargo that was subject to clausing of the bills. Aikens J (as he then was) found that the arbitrators had correctly found that the apparent good order and condition of the cargo depended primarily on the nature of the goods and the way in which they were described in the bills of lading tendered for signature by the master. In Trade Star Lines Corp v Mitsui & Co Ltd the Court of Appeal had to consider whether it was an implied term of the NYPE charterparty that the master was under a duty to the charterers to clause mate's receipts for the cargo shipped if it was not in good order and condition. The Court of Appeal, in dismissing the appeal, held that a term should not be implied that the master was required to tell the charterer what he already knew or was deemed to know. The cases do not provide any guidance as to what the carrier must do in order to determine whether the goods received comply with its stated description.
(2) While the statement on the face of the Bills confirms the apparent order and condition of the total number or quantity of Containers or other packages or in the box entitled "Carrier's Receipt", that does not mean that Maersk are entitled to ignore plain evidence that the goods contained inside those containers are in poor order and condition. The Claimant is I consider correct to say that the carrier is not entitled to ignore clear evidence that the goods contained inside the containers are in poor condition. It accepts however, that in most cases a reasonable inspection will only involve looking at the external shell. Clear evidence that the contents of a container were not in good condition would be, for example, if Maersk saw a container being dropped from a height and heard glass shattering, or if a reefer said to contain frozen fresh fish gave off an offensive odour suggestive of rotting. In such cases a bill would either have to be claused or not issued. The Claimant further contends that it cannot seriously be contended that Containers said to contain 10,000kg of copper, but only weighing 2,000kg, are in "good order and condition". It is plain that something serious has gone wrong with the contents. I agree that if the carrier is aware of a discrepancy such as this when it comes to issue a bill of lading then it ought to draw attention to this fact.
(3) A reasonable check of the apparent order and condition of the goods ought to have included cross-referencing the shippers' description of the weight with the certified VGMs. Here the Claimant assumes what it needs to prove when it submits that a reasonable check of the apparent order and condition of the goods ought to have included cross-referencing the shipper's description of the weight with the certified VGMs. This assumes that any reasonable carrier of containers would, in 2019, have cross-checked the weight declared by the shipper with the weights assessed for the purposes of assessing the VGM. I do not believe that such an assumption is appropriate in the circumstances of the present case. The Claimant has not established that there was any appreciation by carriers at this time that there could be discrepancies or that consignees might become the victims of the shipper's fraud. Establishing the VGM was introduced purely for safety purposes. That is the purpose for which it was used by Maersk. The fact that Maersk could have collated and cross-checked the evidence of weights at the time does not, in my view, mean that it should have done.
(4) This duty is not negatived by clause 14.2. A "weight unknown clause" is subject to the consideration that "A stage must be reached where the discrepancy between cargo actually loaded and cargo alleged to have been loaded is so great that it must be obvious to any master that the bill of lading quantity is fallacious. If no protest is made by a master a bill of lading quantity may, in my view, even if the bill is claused "weight etc. unknown", give rise to the implication that the quantity loaded was not wildly at odds with the bill of lading quantity " (per Phillips J. (as he then was) in The Sirina [1988] 2 Lloyd's Rep 613 at 615). I consider that there is much to be said for the views expressed, obiter, by Phillips J. in The Sirina. His observation should, however, be put in context. It was made immediately following his statement that there is authority for the proposition that "weight unknown" prevents a bill of lading from being even prima facie evidence of the quantity shipped. In the present case it is necessary for the Claimant to establish that Maersk ought to have known that the weight of the container was significantly different to that declared by the shipper. That brings us back to the Claimant's assumption that Maersk ought to have appreciated that there were differences in the declared weight and the verified VGM. For the reasons that I have already given I do not consider this assumption to be correct.
Claim 2: Mis-statement
" The Bills of Lading contained an implied representation that the Defendant had no actual knowledge of facts or matters that would lead it to have reasonable grounds for suspecting that the shipper's particulars do not accurately represent the goods actually received for shipment ..."
" Provided that no carrier, master or agent of the carrier shall be bound to state or show in the bill of lading any marks, number, quantity, or weight which he has reasonable ground for suspecting not accurately to represent the goods actually received, or which he has had no reasonable means of checking ..."
" 58. It is perhaps not impossible that the particular circumstances in which a draft bill of lading is tendered may amount to a representation of some kind by the shippers as to the condition of the cargo. In particular, I would wish to leave open the possibility that, by tendering a draft bill containing a statement that the cargo is in apparent good order and condition, the shipper make an implied representation that they are not actually aware of any hidden defects or damage which, if known to the master, would mean that he could not properly sign the bill as tendered "
Claim 3: Duty of care
"the characteristic approach of the common law in such situations is to develop incrementally and by analogy with established authority" [27]. " [i]n the ordinary run of cases, courts consider what has been decided previously and follow the precedents (unless it is necessary to consider whether the precedents should be departed from). In cases where the question whether a duty of care arises has not previously been decided, the courts will consider the closest analogies in the existing law, with a view to maintaining the coherence of the law and the avoidance of inappropriate distinctions" [29].
It is outside the established categories of cases that "the law will proceed incrementally, and all three stages of the Caparo analysis will be material" [83].
(1) As regards foreseeability of harm, one of the key functions of a bill of lading is as a receipt to confirm what goods have been received. Bills of lading are routinely relied upon as evidence of the state of the goods upon shipment, so that a consignee can confirm that the goods shipped are as purchased, and pay for them. It was patently foreseeable that the Claimant may have relied upon the Bills of Lading when making payment to the Shippers. It was thus foreseeable that, if care was not taken when issuing the Bills, Maersk might give effect to the Shippers' fraud and cause loss.
(2) As regards proximity, the Claimant only argues that such a duty is owed to the Claimant as named consignee under a "straight" bill of lading. This is plainly a narrow and identifiable class and readily fulfils any requirement for "proximity". There may be something to be said for a wider duty being owed to anyone who may reasonably foreseeably (and does in fact) become a holder of a negotiable bill of lading; however, that argument does not arise in the present case.
(3) As regards whether any such duty would be fair, just and reasonable:
(1) The advent of containerisation has led to ample opportunity for sellers to commit fraud on purchasers of goods. This case is just one example of many.
(2) It is the firm policy of the law to minimise the impact of fraud, in particular in the sphere of international trade.
(3) Following the recent amendments to SOLAS and the VGM regime, Maersk, as carriers, are in a highly privileged position to prevent this fraud.
(4) Equally, if they ignore the VGMs that are provided to them and instead issue clean bills that uncritically contain the shipper's misrepresentations as to the weight, they positively facilitate that fraud and cause loss to innocent parties. That loss, in the case of fraud, is unlikely to be recoverable in practice from the fraudster (as this case shows).
(5) This is not a "pure omission" case, as Maersk positively increased the risk of fraud in issuing the Bills as they are. It is a "positive act" case, in which courts are more willing to impose duties on a defendant to protect a claimant from third party malice; see Rushbond plc v JS Design Partnership [2021] EWCA Civ 1889 at [48]-[53].
(6) The proposed duty is limited in scope. It only arises once Maersk has been put on notice of the fraud; it is only proposed to be owed to named consignees under a straight bill; it does not oblige Maersk to take any positive step, but rather to ensure that any bills that they do issue do not facilitate fraud; and it can be discharged simply by clausing the bills appropriately.
(1) Assuming that a carrier "knows" that a shipper's declared weight for a container is wrong, what level of discrepancy would be required for that carrier to "know" that the weight is fraudulent, or to "suspect" that it is fraudulent on "reasonable grounds"? What level of shortage of weight leads to knowledge of fraud, or reasonable grounds for suspicion of fraud? Does the type of goods matter, in terms of attraction to fraudsters? Do different types of goods require different levels of shortage, perhaps depending on value? On the alternative formulations, which are said to encapsulate the same duty, what counts as "notice of fraud"? Is it "notice that a fraud was being committed", or notice of reasonable grounds for suspicion? What if a shipper is suspected of fraud, has containers rejected by the carrier, but returns to ship further containers with correct weights? To what extent should the carrier take assurances of the shipper, or concerns of the consignee, into account? Overall, what level of skill in fraud-detection would be required, bearing in mind that this is not something that carriers usually do? Once the alleged duty is analysed in this way, it becomes difficult to understand how it would operate in practice, and how a carrier could arrange its systems to be sure of compliance.
(2) A duty of care of the sort alleged would be inconsistent with Art III rule 3 and, therefore, with the contract. This is enough to rule it out. Art III rule 3 governs the circumstances in which, and the extent to which, the carrier is required to make representations as to the particulars of the cargo. In effect, it also provides for the level of care which the carrier must take in making such representations.
(3) The fact that in the case of straight bills the consignee does not become a party to the contract of carriage until the bill of lading is issued is not a reason for tacking onto the contract extra duties on matters comprehensively governed by its terms.
(4) Art III rule 3 confers a right on the shipper rather than the consignee, and, to the extent that the shipper does not demand representations from the carrier, the carrier is entitled to issue a bill of lading in which it makes no representations at all. It is well known that it is for the consignee to determine whether to purchase against bills of lading with restricted representations by the carrier. If the consignee wants more comfort from the bill of lading, it should make a sale/purchase contract for a bill of lading with further representations from the carrier.
(5) VGM requirements are nothing to do with the commercial relationship between a shipper/seller and a consignee/buyer, or between the shipper or consignee and the carrier.
(6) The alleged duty would involve the carrier being held responsible for a representation as to weight which the carrier has expressly (and rightly) declined to make.
(7) A carrier is generally not responsible for pre-sealed containers being packed with one sort or weight of goods rather than another, or for preventing or compensating purely economic loss caused by a shipper to a consignee. Further, it is not the carrier's job to police fraud by shippers, and (at some level, at least) this is what the alleged duty of care would involve.
(8) It is open to consignees to take precautions against shippers' fraud, such as ensuring the presence of an experienced representative (i.e. a reputable surveyor) when containers are sealed. There is no good reason to hold carriers responsible for consignees' avoidable mistakes.
(9) The Claimant did not need a duty of care on the part of the Maersk for protection against this fraud. Apart from using a reputable surveyor when the containers were sealed (or at the very least for the Certificate of Quality and sampling for a lab test report), the Claimant could have read the contract and shipping documents with greater care and noticed that they contained multiple red flags, including the fact that it appears that the all-important inspection for the Certificate of Quality did not take place at all. Alternatively, it could have delayed the decision to make the further payments (in fact made on 27 November 2019) until later that same day, after it had gained access to Maersk's portal and seen the VGMs.
(10) It is quite wrong to suggest that if a carrier in the position of Maersk issues bills of lading with shippers' declared weights whilst ignoring VGMs then they "positively facilitate fraud". Once it is understood (as the Claimant should have done) that such a bill of lading contains no representation by the carrier as to the contents of the container, except to the extent revealed by a reasonable examination of the container's external condition, the carrier's role is shown to be "inert".
(11) And finally, it is not foreseeable that a consignee will suffer loss by relying upon a carrier in relation to cargo weight where the carrier states that the weight is declared by the shipper without responsibility of, or representation by, the carrier.
Conclusion on the Claims
The Counterclaim
(1) AED 35,541.66 in relation to Maersk invoices;
(2) EUR 8,409.60 in relation to cargo destruction costs;
(3) EUR 5,420 in relation to container demurrage.
These claims were supported by the evidence of Mr Chronopoulos and were not really challenged in cross-examination.
Summary