The Taikoo Brilliance: Revisiting Deck Cargo Declarations

Introduction

In "Below Deck - ruling confirms position on declaration of deck cargo" (Steamship Mutual - Below Deck - ruling confirms position on declaration of deck cargo), the English Commercial Court's decision in The Taikoo Brilliance [2025] EWHC 1878 (Comm) was discussed. The issue concerned whether a deck cargo clausing of the bills of lading satisfied Article I (c) of the Hague-Visby Rules (“the Rules”), therefore taking it outside the scope of the Rules and, consequently, outside of the Rules’ Article III (6) one-year time limitation. 

That decision has since been appealed, and this article discusses the Court of Appeal’s decision in relation to deck cargo as well as the implications of this decision for Members carrying deck cargoes. 

Recap

The dispute arose from a misdelivery claim concerning New Zealand pine logs shipped onboard the MV Taikoo Brilliance (the “Vessel”), some of which were declared as deck cargo on the face of the bills of lading. Pedregal Maritime S.A. (the “Carriers”) argued that the claim was time-barred under Article III (6) of the Rules, which imposes a one-year time limit for cargo claims, as the deck cargo declaration did not contain sufficient information of the specific cargo carried on deck to bring it within the scope of Article I (c) which provides:

“(c) “Goods” includes goods, wares, merchandise and articles of every kind whatsoever except live animals and cargo which by the contract of carriage is stated as being carried on deck and is so carried.”

The holders of the bills of lading and party claiming misdelivery, Batavia Eximp & Contracting (S) Pte Ltd, argued the opposite, stating that the quantity carried on deck alone was sufficient such that:

“…In any event the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered….”

The Commercial Court agreed. As the cargo was homogenous, a bare statement of carriage on deck was sufficient to bring the cargo within the Article I (c) exemption.  

The Court of Appeal decision

The Carriers appealed and following the decision of the Court of Appeal (The Taikoo Brilliance [2026] EWCA Civ 1158]) the position in respect of deck cargo declaration has now changed. 

The complicating factor in The Taikoo Brilliance was that not all the cargo identified by the bills of lading was carried on deck with the result that, if the cargo carried on deck was sufficiently identified, two different carriage regimes would apply to a single consignment. That is, the Rules would not apply to the cargo identified as being carried on deck, but the Rules would apply to the cargo not so identified. Accordingly, the question was “what must be stated on the face of a bill of lading for cargo to be carried “on deck” pursuant to Article I (c)?”.

Lord Justice Phillips, with whom the other two appeal judges agreed, considered but rejected the Commercial Court’s reasoning that a “pragmatic, practical and commercial approach” should be taken so that what was required by Article I (c) “might vary depending on the nature of the cargo, perhaps including whether it was or was not homogeneous, and the circumstances” (in other words, a ‘sliding scale’ approach by which the level of detail required in the bill of lading increases as the cargo becomes less homogeneous). 

It was held that this approach would generate uncertainty for parties to a bill of lading where cargo was partially carried on deck. Instead, in this case where the entire cargo varied in size and therefore value, the bill of lading should have included sufficient, clear detail (for example, reference to parcel number or serial number) to distinguish which specific cargo was carried on deck. Without this detail, the Court feared that shippers / buyers would be unable to make “an informed assessment of the risks and to arrange insurance accordingly”.  Therefore, the cargo did not fall within the exception to the definition of ‘Goods’ under Article 1 (c) of the Rules and was caught by the one-year time bar under Article III (6) of the Rules.      

The Court of Appeal left open for an appropriate case the question of identification of a truly homogeneous cargo carried in part on deck and in part under deck. The Commercial Court had held that where all cargo is identical, there may be little commercial purpose in identifying exactly which items are carried on deck. However, the Court of Appeal was unconvinced that a generic statement would always be sufficient. 

For completeness, the claimant's appeal on the first issue was dismissed. 

Implications for Members 

Following the Court of Appeal's decision, Members should ensure that if part of a consignment is intended to be carried on deck, the bill of lading description should include sufficient clarity to identify the cargo concerned, especially where it is non-homogeneous. Generic or ambiguous deck cargo statements may not be enough to exclude the operation of the Rules. 

It remains to be seen whether permission to appeal to the Supreme Court will be granted and, if so, provide certainty on the question of deck cargo declaration for the purposes of the Rules. 

For further reading on the carriage of deck cargoes, the Club has published the following articles: