I post the following query as received.
Quote
Today I met a clause on charter party B/L which says
(of which none on deck at Shipper's risk; the carrier not
being responsible for loss or damage howsoever arising)
The documents presented by XYZ - SWITZERLAND WHO CERTIFY THAT DOCUMENTS ARE FULLY COMPLYING WITH CREDIT TERMS.
The phrase comes underneath the following:
Shipper’s description of goods:
Hot rolled steel coils
Remarks:
Atmospheric rust
Shipping marks:
ABC
Shipping agent in country of destination:
QRS
Credit number: 125467/85
Clean “on board”
Freight “prepaid”
(of which none on deck at Shipper's risk; the carrier not being responsible for loss or damage howsoever arising)
------------------
I believe that this term will exclude the carrier from his obligation toward the goods, which should be considered as discrepancy.
Unquote
Exclusion Clause On Charter Party B/L
-
hatemshehab
- Posts: 220
- Joined: Fri Apr 05, 2019 5:19 pm
Exclusion Clause On Charter Party B/L
Hatem,
QUOTE
(Of which none on deck at Shipper's risk; the carrier not being responsible for loss or damage howsoever arising)
UNQUOTE
We quote the exact wordings as seen on the face of the charter party BL in your dispute. We have to deal with this clause/declaration in two parts.
Let us deal with the first part of the clause first.
The meaning of “of which none on deck at Shipper's risk;” is unclear. It could have three contradictory interpretations, depending on the play of English, i.e. where the comma is placed. The “linkage” of the phrase is shown in all capitals as appearing below:
(1) “of which, NONE ON DECK AT SHIPPER'S RISK;”
This means, “NO cargoes under this BL (i) were stowed on deck OR (ii) carried at shipper’s risk”. In this case, the carrier could not avoid liabilities due to damages or loss of the cargoes as they were not stowed “on deck” and not carried at shipper’s risk.
(2) “of which NONE, on deck, AT SHIPPER'S RISK;”
It could mean, “The cargoes under this BL were stowed on deck but NOT carried at shipper’s risk”.
(3) “of which none on deck, AT SHIPPER'S RISK;”
It could also mean “The cargoes under this BL were NOT stowed on deck BUT carried at shipper’s risk”.
Before we could clarify which interpretation is to be used in examination of the BL, it is premature to determine whether this clause would make the BL discrepant or not.
From our experience in handling charter party BL disputes, this may not the end of the story. The prime charter may sub-let part of the cargo holds to a sub-charterer WHO IS ALSO A SHIPPER, assuming that the charter party allows sub-let of cargo holds not fully utilised.
Then we would face a lot of more complicated issues, the legal relationships between the prime charterer and the sub-charterer and that between the carrier/shipowners and the sub-charterer. What would be the consequences if this clause is not known to or agreed by the sub-charterer? So on and so forth.
But we have to stop right here as the Discussion forum is not the right forum for such discussions. Better leave it to the transport workshops when we meet again in the future.
Now we are going to deal with the second part of the clause.
“the carrier not being responsible for loss or damage howsoever arising”
Again this clause may have more than one interpretation.
(1) This clause only refers to the "on deck" stowage only.
The carrier had no more space to stow the cargoes (hot rolled steel coils) under deck and this is where the cargoes should be stowed because the cargoes would be damaged by rain, fresh or sea water, direct sunlight, and other atmospheric conditions.
But the charterer/shipper (assuming voyage charter) told the carrier/shipowners: “Never mind the damages for carriage on deck. This is my business. My L/C is expiring today and your ship is the only sailing this week. If you don’t ship my goods, I cannot draw on the L/C as the shipping deadline is today. So I take whatever responsibilities if you agree to ship my goods. OK?” The carrier/shipowners then replied,”OK, I take your goods on deck but I am not responsible for the damages”.
Having said that, some iron goods, such as cast iron pipes, can be stowed on deck as the rusts gathered in the sea voyage do not affect their original application, as sewage pipes. We did handle a lot of cast iron pipes with shipment all on deck. They are not expensive products. Iron round bars used for civil construction may also be carried on deck.
(2) This clause may refer to ALL responsibilities of a carrier/shipowners.
Then this clause would be illegal, as ALL BL must have the Clause Paramount, which binds a carrier/shipowners to certain international maritime Convention that does not allow the carrier to disclaim certain prime obligations and responsibilities, such as sail with reasonable dispatch, no deviation and so on. If the damages or losses of the cargoes are directly resulting from a prime obligation of the carrier, the carrier cannot avoid responsibilities by virtue of this clause, as it is illegal and hence unenforceable in the maritime court. Some obligations, such as IMO (International Maritime Organisaiton) pollution controls protocols, are not concerning the shipper/charterer and are mainly duties for the shipowners/carrier. Then how can the shipowners/carrier shift these responsibilities to the shipper/charterer?
In fact, the shipper or the consignee may sue the carrier by tort or bailment in which the contract of carriage is not to be referred to. Hence this disclaimer clause, even though it were legal, cannot protect the carrier. The shipper may also exercise his rights by arrest of ship. So there are many alternatives for the shipper or the consignee to make claims for his losses. We have to stop right here as the Discussion Forum is not a suitable forum for such technical issues.
DISCLAIMERS:
The above opinions are given solely for discussion purpose and should not be relied or acted upon without firstly referring to the maritime lawyers and consultants for their counsel. We hold no liabilities whatsoever for any damages, losses or other consequences.
www.tolee.com
[edited 8/5/02 9:14:34 PM]
QUOTE
(Of which none on deck at Shipper's risk; the carrier not being responsible for loss or damage howsoever arising)
UNQUOTE
We quote the exact wordings as seen on the face of the charter party BL in your dispute. We have to deal with this clause/declaration in two parts.
Let us deal with the first part of the clause first.
The meaning of “of which none on deck at Shipper's risk;” is unclear. It could have three contradictory interpretations, depending on the play of English, i.e. where the comma is placed. The “linkage” of the phrase is shown in all capitals as appearing below:
(1) “of which, NONE ON DECK AT SHIPPER'S RISK;”
This means, “NO cargoes under this BL (i) were stowed on deck OR (ii) carried at shipper’s risk”. In this case, the carrier could not avoid liabilities due to damages or loss of the cargoes as they were not stowed “on deck” and not carried at shipper’s risk.
(2) “of which NONE, on deck, AT SHIPPER'S RISK;”
It could mean, “The cargoes under this BL were stowed on deck but NOT carried at shipper’s risk”.
(3) “of which none on deck, AT SHIPPER'S RISK;”
It could also mean “The cargoes under this BL were NOT stowed on deck BUT carried at shipper’s risk”.
Before we could clarify which interpretation is to be used in examination of the BL, it is premature to determine whether this clause would make the BL discrepant or not.
From our experience in handling charter party BL disputes, this may not the end of the story. The prime charter may sub-let part of the cargo holds to a sub-charterer WHO IS ALSO A SHIPPER, assuming that the charter party allows sub-let of cargo holds not fully utilised.
Then we would face a lot of more complicated issues, the legal relationships between the prime charterer and the sub-charterer and that between the carrier/shipowners and the sub-charterer. What would be the consequences if this clause is not known to or agreed by the sub-charterer? So on and so forth.
But we have to stop right here as the Discussion forum is not the right forum for such discussions. Better leave it to the transport workshops when we meet again in the future.
Now we are going to deal with the second part of the clause.
“the carrier not being responsible for loss or damage howsoever arising”
Again this clause may have more than one interpretation.
(1) This clause only refers to the "on deck" stowage only.
The carrier had no more space to stow the cargoes (hot rolled steel coils) under deck and this is where the cargoes should be stowed because the cargoes would be damaged by rain, fresh or sea water, direct sunlight, and other atmospheric conditions.
But the charterer/shipper (assuming voyage charter) told the carrier/shipowners: “Never mind the damages for carriage on deck. This is my business. My L/C is expiring today and your ship is the only sailing this week. If you don’t ship my goods, I cannot draw on the L/C as the shipping deadline is today. So I take whatever responsibilities if you agree to ship my goods. OK?” The carrier/shipowners then replied,”OK, I take your goods on deck but I am not responsible for the damages”.
Having said that, some iron goods, such as cast iron pipes, can be stowed on deck as the rusts gathered in the sea voyage do not affect their original application, as sewage pipes. We did handle a lot of cast iron pipes with shipment all on deck. They are not expensive products. Iron round bars used for civil construction may also be carried on deck.
(2) This clause may refer to ALL responsibilities of a carrier/shipowners.
Then this clause would be illegal, as ALL BL must have the Clause Paramount, which binds a carrier/shipowners to certain international maritime Convention that does not allow the carrier to disclaim certain prime obligations and responsibilities, such as sail with reasonable dispatch, no deviation and so on. If the damages or losses of the cargoes are directly resulting from a prime obligation of the carrier, the carrier cannot avoid responsibilities by virtue of this clause, as it is illegal and hence unenforceable in the maritime court. Some obligations, such as IMO (International Maritime Organisaiton) pollution controls protocols, are not concerning the shipper/charterer and are mainly duties for the shipowners/carrier. Then how can the shipowners/carrier shift these responsibilities to the shipper/charterer?
In fact, the shipper or the consignee may sue the carrier by tort or bailment in which the contract of carriage is not to be referred to. Hence this disclaimer clause, even though it were legal, cannot protect the carrier. The shipper may also exercise his rights by arrest of ship. So there are many alternatives for the shipper or the consignee to make claims for his losses. We have to stop right here as the Discussion Forum is not a suitable forum for such technical issues.
DISCLAIMERS:
The above opinions are given solely for discussion purpose and should not be relied or acted upon without firstly referring to the maritime lawyers and consultants for their counsel. We hold no liabilities whatsoever for any damages, losses or other consequences.
www.tolee.com
[edited 8/5/02 9:14:34 PM]
-
larryBacon
- Posts: 689
- Joined: Fri Apr 05, 2019 5:26 pm
Exclusion Clause On Charter Party B/L
T.O.
I have heard of a situation where a charterer puts his own crew on the vessel for the voyage (charter). Would this entitle the carrier to claim "the carrier not being responsible for loss or damage howsoever arising" ?
Laurence
I have heard of a situation where a charterer puts his own crew on the vessel for the voyage (charter). Would this entitle the carrier to claim "the carrier not being responsible for loss or damage howsoever arising" ?
Laurence
Exclusion Clause On Charter Party B/L
Laurence,
VOYAGE CHARTER PARTY DOES NOT ALOLW CREW REPLACEMENT AS IN BARE-BOAT CHARTER PARTY
You have confused us in saying that in a voyage charter party, the charterer puts his crew on board the ship. We hope your do not mean this.
As far as we know, a voyage charter is good for a one-way trip only. Hence it is not possible for the charterer to put his crew on board. Otherwise the contents of the voyage charter party would have to be amended drastically to match the rights and responsibilities between the carrier and the charterer, similar to a demise or bare-boat charter party, where the charterer puts his crew on board the ship for many reasons, to save costs, to have absolute control of the ship and the like. That is why this kind of charter party is called “bare-boat”, meaning no original crew on board. A bare-boat charter party usually hires the ship for a long period of time, say for one year, and not just for one trip. That is why it is worth the trouble to replace the crew, or even to paint the funnel of the ship with the charterer’s own logo.
TWO WAYS TO REPLACE CREW
There are two ways to do this. One way is to replace ALL the crew, from top to bottom, including the master mariner and the first mate. The other way is to keep the key crew, such as the master mariner, the first mate, the chief engineer and like on board with the other supporting crew replaced.
IT DOES NOT MAKE ANY COMMERCIAL SENSE TO REPALCE THE CREW WITH A VOYAGE CHARTER PARTY
However, a voyage charter party would not allow the charter to replace any crew, from commercial sense point of view. This may cause a lot of problems, such as invalidity of P& I Club cover; haul insurance, troubles in enforcement of IMO regulations and a host of other problems that we cannot imagine. It is not worth to do this just for a short one-way trip. This is only common sense. For example, if you hire a taxi to the airport, would the taxi driver allow you to drive the taxi?
You said you heard of such replacement. This may be due to misinterpretation in the process of gossips from one person to another.
www.tolee.com
VOYAGE CHARTER PARTY DOES NOT ALOLW CREW REPLACEMENT AS IN BARE-BOAT CHARTER PARTY
You have confused us in saying that in a voyage charter party, the charterer puts his crew on board the ship. We hope your do not mean this.
As far as we know, a voyage charter is good for a one-way trip only. Hence it is not possible for the charterer to put his crew on board. Otherwise the contents of the voyage charter party would have to be amended drastically to match the rights and responsibilities between the carrier and the charterer, similar to a demise or bare-boat charter party, where the charterer puts his crew on board the ship for many reasons, to save costs, to have absolute control of the ship and the like. That is why this kind of charter party is called “bare-boat”, meaning no original crew on board. A bare-boat charter party usually hires the ship for a long period of time, say for one year, and not just for one trip. That is why it is worth the trouble to replace the crew, or even to paint the funnel of the ship with the charterer’s own logo.
TWO WAYS TO REPLACE CREW
There are two ways to do this. One way is to replace ALL the crew, from top to bottom, including the master mariner and the first mate. The other way is to keep the key crew, such as the master mariner, the first mate, the chief engineer and like on board with the other supporting crew replaced.
IT DOES NOT MAKE ANY COMMERCIAL SENSE TO REPALCE THE CREW WITH A VOYAGE CHARTER PARTY
However, a voyage charter party would not allow the charter to replace any crew, from commercial sense point of view. This may cause a lot of problems, such as invalidity of P& I Club cover; haul insurance, troubles in enforcement of IMO regulations and a host of other problems that we cannot imagine. It is not worth to do this just for a short one-way trip. This is only common sense. For example, if you hire a taxi to the airport, would the taxi driver allow you to drive the taxi?
You said you heard of such replacement. This may be due to misinterpretation in the process of gossips from one person to another.
www.tolee.com
-
larryBacon
- Posts: 689
- Joined: Fri Apr 05, 2019 5:26 pm
Exclusion Clause On Charter Party B/L
T.O.
I have not been involved in any bare-boat charter parties. This is why I sought the information, but in a case like this, can the carrier exclude liability based on the fact that he has no control over the management of the ship ?
Laurence
I have not been involved in any bare-boat charter parties. This is why I sought the information, but in a case like this, can the carrier exclude liability based on the fact that he has no control over the management of the ship ?
Laurence
Exclusion Clause On Charter Party B/L
Laurence,
COMPLEXED ISSUES
Please excuse us for not being able to answer your query “Can the carrier exclude liability based on the fact that he has no control over the management of the ship?” in a way satisfactory to you as this is a complicated issue.
You may get your answer from the terms and conditions of a bare-boat charter party, which is very lengthy.
EVEN FOR SEAWORTHINESS, THE SHIPOWNERS STILL HAVE RESPONSIBILITIES IN BARE-BOAT CHARTER PARTY
Even if the ship is managed by crew provided by the charterer, the shipowners still have a lot of responsibilities. For example, it is the basic duty of a carrier to keep the ship seaworthy. Replacing the crew under the management of the charterer may not lift this seaworthiness duty from the shipowners, who are still required to arrange for the routing checking, maintenance and repairs of the ship, such as dry-docking, renewing various inspection certificates etc.
DISCUSSION FORUM CANNOT REPLACE WORKSHOPS
So the story is not so simple, clear cut or straightforward. These can only be dealt with in a charter party workshop than in the Discussion Forum, which is not a forum for lecturing, but mainly for brief opinions sharing.
www.tolee.com
[edited 8/7/02 7:26:47 PM]
COMPLEXED ISSUES
Please excuse us for not being able to answer your query “Can the carrier exclude liability based on the fact that he has no control over the management of the ship?” in a way satisfactory to you as this is a complicated issue.
You may get your answer from the terms and conditions of a bare-boat charter party, which is very lengthy.
EVEN FOR SEAWORTHINESS, THE SHIPOWNERS STILL HAVE RESPONSIBILITIES IN BARE-BOAT CHARTER PARTY
Even if the ship is managed by crew provided by the charterer, the shipowners still have a lot of responsibilities. For example, it is the basic duty of a carrier to keep the ship seaworthy. Replacing the crew under the management of the charterer may not lift this seaworthiness duty from the shipowners, who are still required to arrange for the routing checking, maintenance and repairs of the ship, such as dry-docking, renewing various inspection certificates etc.
DISCUSSION FORUM CANNOT REPLACE WORKSHOPS
So the story is not so simple, clear cut or straightforward. These can only be dealt with in a charter party workshop than in the Discussion Forum, which is not a forum for lecturing, but mainly for brief opinions sharing.
www.tolee.com
[edited 8/7/02 7:26:47 PM]