| Archives: June 2014

Award 1217 – Transport of refrigerated containers – Lack of means of wedging inside containers – Shipper’s fault – Carrier’s liability (no). Two refrigerated containers, one packed with boxes of frozen chickens and the other with boxes of frozen pork, were loaded in Brazil on different vessels bound for Asia. On arrival, a partial thawing was observed due to obstruction of cold air supply inside the containers caused by the collapse of piles of boxes. The arbitrators considered that for the shipper to pile up boxes inside a container omitting to provide proper dunnage in empty spaces was tantamount to professional misconduct. To no avail, the shipper pleaded the carrier’s assumption of liability since it was clear for the arbitrators that the shipper’s misconduct was the certain and sole cause of the damages. On the ground of article 4.2.i of the Brussels Convention 1924, the carrier was exempted of any liability.

Award 1216 – Hull and machinery insurance of a fishing boat – Indemnification denial – Clause printed in indistinctive types – Insurer condemned – No measures of conservation taken by the insured – Partial indemnification. Following damage suffered by a fishing boat when alongside, the underwriter refused to pay out on the basis that the general provisions of the insurance contract stipulating that cover would not be in place in the absence of a navigation license which the insured did not have any longer Despite the fact that the clause in question appeared on page 1 of the contract, by the terms of article 112-4 of the Code of Insurances which applies to all marine insurances since 1994 and according to an established body of case-law, clauses of exclusion or forfeiture which do not appear in very visible types are null and void. Therefore, the insurer must indemnify the insured. However, in the absence of measures of conservation taken by the insured, by virtue of the article 172.23 of the same Code, it could not claim for payments corresponding to the worsening of the damage and the addition of various expenses.