Award 1227 – Seed potatoes under B/L – Ship arrested after loading – Discharging of germinating cargo ordered by loading port authorities – Claim from receiver – Carrier’s liability (yes).
After loading of a cargo of seed potatoes in a French port and delivery of a clean on board bill of lading, a ship was arrested at the request of its previous owner owing to a dispute concerning the sale contract. The arrest was protracted and because the cargo started to germinate, the port authorities were authorised by a court to discharge the cargo. This led to a further arrest by the Algerian importer in order to be protected against the consequences of the non-delivery of the goods. The importer requested the arbitral tribunal to order the carrier to pay him the cargo value in view of the non-performance of the contract of carriage and the ship’s unseaworthiness resulting from its arrest. The respondent opposed the obligation by the cargo interests to take measures in order to mitigate the losses and maintained that the whole cargo was not damaged.
The arbitral Tribunal dismissed the unseaworthiness argument as the arrest did not affect the ship’s capabilities either nautical or related to the cargo to perform its obligations but confirmed that the claim was based on a contract of carriage submitted to the Brussels Convention of 1924 amended 1979. It considered that only the absence of measures taken by the owner to free the vessel caused the non-performance of the contract of carriage. As no survey report was available, the Tribunal admitted, as evidence of the damaged cargo, a technical note written by a third party on behalf of the port and condemned the carrier to pay to the receivers the value of goods.