The decision of Mr. Justice Flaux in (1) Societe de Distribution de Toutes Merchandises en Cote D’Ivoire trading as “SDTM-CI” (2) Kouma Assitan (3) Amlin Corporate Insurance N.V. (4) Axa Corporate Solutions Assurance and (1) Continental Lines N.V. (2) Genshipping Corporation [2015] EWHC 1747, considers the effect of clause 5 of the Synacomex 90 form, upon which the vessel was chartered in this case.

Clause 5 of the standard form provides that “cargo shall be loaded, trimmed and/or stowed at the expenses and risk of Shippers/Charterers… cargo shall be discharged at the expenses and risk of Receivers/Charterers… stowage shall be under Master’s direction and responsibility…”. This clause was incorporated into the bills of lading.

In this case the Court heard a preliminary issue as to whether, on the proper construction of the contract of carriage contained in or evidenced by a bill of lading the carrier was liable for loss or damage to the cargo caused by improper loading, stowage or discharging of the cargo. In doing so it was required to consider the effect of clause 5.

The common law position is that the responsibility for loading, stowage and discharge, which is generally upon the carrier, can be transferred by clear terms to cargo interests. The decision provides a thorough review of the cases in relation to this position.

Ultimately, the analysis which the Court was required to carry out was whether clause 5 transferred responsibility for loading and stowage from the carrier to the charterers/cargo interests in clear terms.

It was accepted that there is an internal tension within clause 5, i.e. between the stowage being under the Master’s direction and responsibility on the one hand, and the cargo being loaded, trimmed and/or stowed at the expenses and risk of shippers/charterers on the other. On balance, the Court took the view that it was the cargo interests’ construction (ie that the clause did not transfer responsibility for loading or discharge from the carrier to the charterers) which was more difficult to reconcile with the provision that stowage was to be under the Master’s direction and responsibility ( as it would render it unnecessary).

It was therefore held that the effect of the third sentence of clause 5, incorporated in the bills of lading, was to impose responsibility on the charterers/cargo interests for “bad loading and discharging of the cargo”.

The case provides useful clarification on the construction of this much-used clause, and also on the principle as to what amounts to “clear terms”.