Publication: Rotterdam Court 05-09-2018, ECLI:NL:RBROT:2018:7350;
MBI buys a quantity of cement from Holcim. Holcim instructed Binnenlloyd to carry the cement From Duisburg (Germany) to Kampen (the Netherlands). Binnenlloyd subsequently fixed the inland barge “Sailing Home” subject to a voyage charter party with the owner of the barge. During discharge at the place of destination, it became apparent that a part of cargo, partly still on board and partly already discharged was damaged as a result of a water leak from a water pipe in the most forward cargo compartment of the “Sailing Home”. The water could enter this compartment after a deck hand started to clean the deck with a pump connected to the line with the leak.
The part of the cargo already discharged and stored in a silo tank on shore had to be removed and the tank and the shore pipes had to be cleaned. The subrogated underwriters commenced legal proceedings against Binnenlloyd and the owner of the barge, claiming the damages to the cargo as well as the costs incurred with removing the contaminated cargo and cleaning of the shore lines. The claims were based primarily on the contract of carriage and on a subsidiary bases in tort or collision subject to the argument that the barge did not comply with the required standards under the given circumstances.
In respect of a carriage of goods over inland waters, whereby no bill of lading has been issued, the shipper, being the contracting party with the carrier, and the consignee after joining the agreement are entitled to forward a cargo claim based on the contract of carriage against the carrier. Between MBI and Holcim on the one side, however, and the owner of the barge on the other no contract of carriage existed. The CMNI convention nor Dutch national law provide that under these circumstances a cargo claim pursuant to any contract of carriage would exist, whilst at the same time the law referred to allows the sub-carrier to invoke the same defences against any extra-contractual claim as those available to him subject to the convention.
Binnenlloyd was held liable subject to Article 16 (1) CMNI in respect of the damaged cargo still on board, unless Binnenlloyd would be allowed to rely on any exemption of liability contained in Article 18 CMNI alternatively Binnenlloyd could rely on force major. Because the damages were not caused by an inherent vice, whilst because the damages could easily have been prevented by starting the deck cleaning after discharge of the cargo, Binnenlloyd could not relay on any force major defence.
In respect of the barge owner no contractual claim existed. In order to assume any liability either on the basis of tort or otherwise any provisions in relation to a collision, it will be required to establish the owner was at fault in respect of the cause of the damages. The Court ruled that under the circumstances such fault could be accepted. A barge with a leaking water line in a cargo compartment in which cement is being carried does not comply with the required standards which would apply under the circumstances of the case. The fact that the barge owner was not aware a leakage or even did not know that the relevant pipe ran through the cargo compartment would not give rise to a defence that he was not at fault in respect of the cause of the damages. If on the other hand the barge owner could establish that he could not have been aware of the leakage, for the reason that also during a proper inspection and maintenance the water leakage would not have been apparent he and the barge would not be at fault. In the proceedings the barge owner was allowed to give evidence that he could not have been aware of the leakage the same not being apparent even during a proper investigation and maintenance of the barge.
