Nowadays, the carrier is rarely aware of the actual content of the container, especially considering that customarily, the container is stowed, loaded and sealed by the shipper. This topic has been the subject matter of a recent pilferage case decided by the Finnish Court of Appeal.
The Finnish Appeal Court has overturned an earlier judgment by the Helsinki Maritime Court, ruling in favour of the marine cargo insurer who claimed that the carrier was to be held responsible for the theft of the goods apparently stolen from the container while in transit.
The case concerns a container of electronic devices, with a third of its contents missing when opened at its final destination in Russia.
As it generally happens, the shipper stowed, loaded and sealed the container, declaring that it contained electronic devices. At the in-‐gate at loading port, it was declared that the container had been received in good condition and no specific remarks were made regarding seals.
When the container arrived at the discharge port in Finland, the seal from one of the doors was reported missing. The carrier informed the shipper, who instructed Finnish Customs to attach a new seal before trucking the container to its final destination in Russia. After Finnish Customs sealed the door no further manipulation occurred.
At the final destination, one-‐third of the declared content was reported missing. No joint investigation was performed.
The cargo insurer brought legal action against the sea carrier before the Helsinki Maritime Court. The claim was based on the fact that the missing seal was reported at the port of discharge and it was hence assumed that the pilferage allegedly took place during the period of liability of the carrier.
In its defense, the carrier stated that it could not be proven that the seal had been intact at the in-‐ gate at loading port. Indeed, the gate closed-‐ circuit television (CCTV) footage did not clearly show whether the seal was present or not.
During storage in the terminal yard the container was placed in an upper tier of a stack of containers with its doors against other containers in order to prevent them from being opened. Unfortunately, the CCTV footage had been erased, therefore it was not possible to prove in which position the container was actually stored.
Moreover, in the vessel the container was loaded in a cell guide, and this made it technically impossible to open its doors.
The carrier also pointed out that had the container weighed in at one-‐third less than its original weight, Russian Customs should have noticed such difference at the boarder.
On the basis of the evidence presented and of the CCTV footage, the Maritime Court concluded that it was reasonable that at the gate-‐in the presence of all seals had not been checked and hence that the seal was already missing at that time.
Therefore, the Court found in favour of the carrier, underlining that a carrier’s duty to examine containers does not cover the examination of seals.
Chapter 13, Section 6, of the Finnish Maritime Code provides a rule that is very similar to the principles of diligence enunciated in Italian case law.
Indeed, it provides that: “the carrier shall examine, to a reasonable degree, whether the goods are packed in such a way as not to suffer damage or to cause damage to any person or property. Where the goods have been delivered in a container or similar article of transport, the carrier is not obliged to inspect it internally, unless there is reason to suspect that the article of transport is packed in a faulty manner”.
Decision of the Court of Appeal
The Court of Appeal has overturned the Maritime Court decision and found that the pilferage had taken place during the period of time when the carrier could and should be liable for the custody.
Once again the court ruling is based on a principle that is very similar to the position adopted by Italian jurisprudence on carrier’s responsibility. Chapter 13, section 25 of the Finnish Maritime Code specifies that “the carrier is liable for the loss of goods that are lost or damaged during its period of liability, whether on board or ashore, unless it proves that such fact was not caused by its fault or neglect, or from the fault or neglect of any one of its subordinates”.
Since the validity of the evidence provided by the carrier in order to exclude its liability was not admitted, the result for the carrier itself could only be negative.
Finland’s Supreme Court has not granted the carrier with the right to appeal the final decision.
Once again we have to emphasize the fact that, in case of theft or loss of cargo, it is of extreme importance for the carrier’s defense to be able to reconstruct, in a timely and detailed manner, the conditions of the voyage, so as to be able to describe (and prove) the circumstances that exempt the carrier from liability for custody, which otherwise implies the obligation to compensate for consequential damages.