On Deck Cargo Exclusion Clauses
It is not that simple anymore Until recently, a carrier could place heavy reliance on the "on deck cargo" exclusion clauses contained in the contracts of carriage. Quite justifiably, so one might say, bearing in mind that there has been a long chain of case law (The Danah, The Imvros, The Darya Tara) upholding the position that a carrier would be adequately sheltered in case of deck cargo lost overboard, as long as an exemption clause was in place in the bill of lading.The wind started to change after The Imvros which was a case heavily criticised in an article by Simon Baughen, Scholar, Reader at the University of Bristol, in 2000. This was a case of cargo loaded, stowed and lashed by the crew acting as servants of the charterers, who were responsible for loading, stowage and lashing under an un-amended NYPE clause 8. The Panel of Arbitrators found that the effective cause of the loss was the insufficiency of lashings which rendered the vessel unseaworthy. It weighted heavily on the mind of the Tribunal that it was charterers who were the ones contractually responsible for lashing, and hence owners won the argument. Charterers appealed on the basis that ...
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