Does the deck cargo exclusion clause protect an owner from his crews negligence?
Clause 13 (b) states: “In the event of deck cargo being carried, the Owners are to be and are hereby indemnified by the Charterers for any loss and/or damage and/or liability of whatsoever nature caused to the Vessel as a result of the carriage of deck cargo and which would not have arisen had deck cargo not been loaded.” To determine whether this covers negligence, the Court applied the well-established three stage approach set out in Canada Steamship [1952] AC 192 at 208. This is as follows: “(1) If the clause contains language which expressly exempts the person in whose favour it is made (hereafter the “proferens”) from the consequence of the negligence of his own servants, effect must be given. (2) If there is not express reference to negligence, the court must consider whether the words used are wide enough, in their ordinary meaning, to cover negligence on the part of the servants of the proferens. If doubt arises at this point it must be resolved against the proferens…. (3) If t
