Award 1238 – C/P Gencon – Applicable law – Carriage of lychees to be refrigerated – Cargo damage – Subrogated insurers – Vessel’s liability (yes) – Damage assessment.
A reefer vessel loaded in Madagascar a full cargo of lychees on pallets to Netherlands. After her departure, the temperature readings sent by the vessel indicated that the duration of cooling down prescribed by the C/P was widely exceeded. On arrival, checking of samples shown some fruits were damaged. After dispatches to numerous Receivers, batches of goods were returned or had to be destroyed. The Charterers and the subrogated Insurers claimed to be indemnified for their losses by the disponent Owner and the Shipowner. The Owners opposed procedural arguments and on the merits asserted that Owners’ liability ceases when hatches are opened and that only damages ascertained when discharging could be compensated.
Noting the C/P did not mention any applicable law, the arbitral Tribunal decided to apply lex fori to the procedure and rejected the disponent Owner’s inadmissibility arguments. The B/Ls having not circulated, the action against the Shipowner was declared inadmissible but not the one against the disponent Owner who was judged liable for the damages resulting from the cooling down duration. However his liability was reduced by 20 % in view of an uncertainty about the vessel’s cooling power and the arrival just before Christmas which did not help the fruits sales. The indemnifications amounts, determined by surveys, were adjusted downwards as founded upon a higher figure than provided in the insurance policy.
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