El Greco (Australia) Pty Ltd v Mediterranean Shipping Co SA [2004] FCAFC 202

El Greco (Australia) Pty Ltd v Mediterranean Shipping Co SA [2004] FCAFC 202

The court held that for limitation of liability under the Hague-Visby Rules (as adopted in Australia), where a container is used, the relevant 'package or unit' is only that which is enumerated as packed for transport in the bill of lading; a mere enumeration of pieces (such as posters and prints) does not suffice if it does not reflect the way goods are packed for carriage. Accordingly, the container itself constitutes one 'package or unit' for limitation purposes because the enumeration did not describe how the posters were actually packed. Furthermore, value of the goods for damages is to be assessed at the place and time of discharge in accordance with Art 4 r 5(b), not merely by...

Parties
First Appellant/first Cross Respondent: El Greco (Australia) Pty Limited; Second Appellant/second Cross Respondent: John Theodorakopoulos; Respondent/cross Appellant: Mediterranean Shipping Co SA
Jurisdiction
Australia
Judgment Date
10 August 2004
Procedural Posture
Admiralty and Maritime Appeal / Appeal and Cross Appeal From a Single Judge of the Federal Court of Australia
Outcome
Cross-appeal allowed; appeal dismissed; matter remitted for determination of limitation based on one package/unit (the container).
Legal Topics
Carriage of Goods by Sea, Hague Visby Rules, Limitation of Liability, Bill of Lading, Statutory Construction
Admiralty and Maritime Law Statutory Interpretation Carriage of Goods by Sea Hague Visby Rules Limitation of Liability Bill of Lading Statutory Construction

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Parties

El Greco (Australia) Pty Limited

First Appellant/first Cross Respondent

John Theodorakopoulos

Second Appellant/second Cross Respondent

Mediterranean Shipping Co SA

Respondent/cross Appellant

Procedural Posture

Admiralty and Maritime Appeal / Appeal and Cross Appeal From a Single Judge of the Federal Court of Australia

Legal Issues

  1. 1 How is the value of cargo assessed under Article 4 Rule 5(b) of the Hague-Visby Rules where there is no commodity exchange price or current market price?
  2. 2 What is the correct method for determining the number of 'packages or units' for limitation of liability under Article 4 Rule 5(c) of the Hague-Visby Rules when a container contains an enumeration of pieces (posters and prints)?
  3. 3 Does contractual limitation to one package/unit (the container) in a bill of lading (Clause 21) prevail given Article 3 Rule 8 of the Hague-Visby Rules?

Ratio Decidendi

The court held that for limitation of liability under the Hague-Visby Rules (as adopted in Australia), where a container is used, the relevant 'package or unit' is only that which is enumerated as packed for transport in the bill of lading; a mere enumeration of pieces (such as posters and prints) does not suffice if it does not reflect the way goods are packed for carriage. Accordingly, the container itself constitutes one 'package or unit' for limitation purposes because the enumeration did not describe how the posters were actually packed. Furthermore, value of the goods for damages is to be assessed at the place and time of discharge in accordance with Art 4 r 5(b), not merely by...

Court Disposition

Cross-appeal allowed; appeal dismissed; matter remitted for determination of limitation based on one package/unit (the container).

Orders

  • The cross-appeal be allowed.
  • The cross-respondents pay the cross-appellant's costs of the cross-appeal.