• (1) The opening words exclude liability not only for loss or damage, but also for delay or failure in performing hereunder. Given that a breach of charter may well generate not only loss of or damage to or “in connection with” cargo, it is clearly important that different foreseeable consequences of a breach should be provided for.
• (2) Barratry 6 is added to the exception found in Article IV rule 2(a), but as it must be in the navigation or management of the Vessel, it would probably be a default in any event; a barratrous act with regard to the care of the cargo would not be within the exception and would fall foul of Article III rule 8.
• (3) Personal design or neglect of the Owner is substituted for the more familiar “actual fault or privity” which still re-emerges at the end of the first part of the clause. However, there is little perceivable difference in effect; there must still be a fault which is personal to the owner and clause 19 makes it plain (if it were necessary) that neglect is fault.
• (4) Collision and stranding are added to perils of the seas 7 and other navigable waters, but such events would already fall within the term “perils of the sea”.
• (5) To act or omission of the shipper, or owner of the goods is added charterer and consignee, but the consignee would in any event fall within the narrower exception and the addition of the “charterer” in the context of a charterparty relationship would be highly unlikely to effect any change to the agreed spread of responsibility. Where the charterparty is incorporated into a bill of lading, which the Asbatankvoy form certainly contemplates, the “charterer” would probably be relevant only where the charterer was the agent of the cargo owner and, thus, already within the exception without the mention of “charterer”; insofar as he is the agent of the shipowner vicariously performing his obligations, the exclusion of liability would be nullified by Article III rule 8.
• (6) Explosion, bursting of boilers, breakage of shafts or any latent defect in hull, equipment or machinery is probably no more than an explicit definition of “latent defect” in Article IV rule 2(p) of the Hague Rules. Although there is no express reference to due diligence in the phrase, it follows in the next phrase and must, therefore, be implicit as a matter of construction. It is submitted that all of the events must be latent and not discoverable by due diligence. The only question of difficulty is whether the exception of “explosion” is limited by the remaining exceptions, effectively to the vessel’s hull, machinery or equipment or whether it extends also to explosions of or in the cargo. It is submitted that it does so extend, but not to cases where the explosion is the result of negligence on the part of the owner or his servants or agents, for there is nothing in the nature of a negligence exception in the phrase.
• (7) Assailing thieves is added to pirates and public enemies. This addition avoids many of the technicalities surrounding piracy and the notion of public enemies, but in practice the addition is unlikely to save an owner from a liability from which he is not saved by the Hague Rules.

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  (8) Arrest or restraint of princes, rulers or people. For a recent application of this exception, in a case where a vessel was detained illegitimately by the Indonesian Navy, see London Arbitration 20/10.
• (9) The Hague Rules’ seizure under legal process exception is general, but the exception granted by clause 19 is more limited in that it requires the prompt provision of a bond to secure the release of vessel or cargo. Presumably the owner of the vessel must secure her release and the owner of the cargo must secure its release, although there is nothing express which so allocates the responsibility for the prompt provision of a bond.
• (10) The catch-all exclusion of any other cause arising without the actual fault and privity of the owner has the added words of whatsoever kind simply to clarify the generality of the exclusion. More significantly, however, the exclusion omits the words in Article IV rule 2(l) “… and without the fault or neglect of the agents or servants of the …” owner, although it may make little difference because the clause does not generally exclude liability for negligence and that must include a vicarious liability and liability for delegated performance. The burden of proof would be the same even without the explanatory words found in the Hague Rules.

U.S. Law