Lloyd's Maritime and Commercial Law Quarterly
CONTRACTING CARRIERS, HIMALAYA CLAUSES AND TORT IN THE HOUSE OF LORDS
The Starsin
In a keenly awaited development,1
a strong appellate committee of the House of Lords has given judgment in The Starsin,
2
reversing in part the majority decision of the Court of Appeal.3
The three issues raised by the appeal generated nearly 70 pages of reasoned judgment from their Lordships.4
The first issue was whether the shipowners or charterers were the carriers under the bills of lading, an intractable point litigated frequently5
and sorely in need of their Lordships’ guidance.6
The second issue was whether the shipowners were liable in tort. The third issue7
concerned what, if any, protection was afforded to the shipowners by the terms of the Himalaya clause8
in the bills of lading.
Facts
The facts were uncontroversial. The Starsin,
a vessel of about 27,000 tonnes, was demise chartered by her registered owners to Agrosin. Agrosin fixed the Starsin
on NYPE terms to Continental Pacific Shipping Ltd (“CPS”). Various cargoes of timber and timber products were loaded at Malaysian ports and, although some of the cargo was wetted by rain before shipment, clean bills of lading were issued. The cargo was also improperly stowed and 17 consignments were out-turned seriously damaged by water.
1. See “Who is the carrier in the voyage to Troy?”, London Shipping Law Centre seminar, held on 25 February 2003, reported in Lloyd’s List,
3 March 2003.
2. Homburg Houtimport BV
v. Agrosin Private Ltd
[2003] U.K.H.L. 12; [2003] 2 W.L.R. 711; [2003] 1 All E.R. (Comm) 625; [2003] 2 All E.R. 785 (Lords Bingham, Steyn, Hoffmann, Hobhouse and Millett).
3. [2001] E.W.C.A. Civ 56; [2001] 1 Lloyd’s Rep. 437; [2001] 1 All E.R. (Comm) 455; [2001] C.L.C. 696; noted S.Gee (2001) 117 LQR 358; [2001] LMCLQ 214.
4. Cf.
Sir Robert Goff (as he then was), “The Search for principle”, reprinted in W.Swadling & G.Jones (eds), The Search for Principle
(Oxford, 1999) 313.
5. Described by Lord Millett as “lamentable”: at [174]. See too [2000] 1 Lloyd’s Rep. 85, 89 (per
Colman, J.).
6. See The Berkshire
[1974] 1 Lloyd’s Rep. 185; The Venezuela
[1980] 1 Lloyd’s Rep. 393; The Rewia
[1991] 2 Lloyd’s Rep. 325; MB Pyramid Sound NV
v. Briese Schiffahrts GmbH & Co, KG MS Sina (The Ines) (No. 2)
[1995] 2 Lloyd’s Rep. 144; Sunrise Maritime Inc.
v. Uvisco Ltd (The Hector)
[1998] 2 Lloyd’s Rep. 287, noted A.Waldron [1999] LMCLQ 1; Fetim BV
v. Oceanspeed Shipping Ltd (The Flecha)
[1999] 1 Lloyd’s Rep. 612.
7. Issues two and three were taken in reverse order by most of their Lordships, Lord Hobhouse excepted.
8. See Sir G.Treitel & F.M.B.Reynolds, Carver on Bills of Lading
(London, 2001), 315–324.
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