With permission from the author of the querry, I may clarify that the differnce in port names is merely a spelling mistake.
Khalid Iftikhar
Restrictive BL
Restrictive BL
Laurence,
Your interpretation of sub-Article 32a is most interesting and not one of which I would have thought. It certainly calls into question the view that sub-Article 32a covers solely the ‘physical’ state of the goods and/or packaging and that it does not extend, for example, to the insufficiency of marks. Nonetheless, I am still inclined to the more restrictive interpretation, although I readily recognise that I am unable to substantiate it by reference to case law or other interpretative documents. If anyone can, whether ‘for’ or ‘against’, I would be most interested to hear.
Jeremy.
Your interpretation of sub-Article 32a is most interesting and not one of which I would have thought. It certainly calls into question the view that sub-Article 32a covers solely the ‘physical’ state of the goods and/or packaging and that it does not extend, for example, to the insufficiency of marks. Nonetheless, I am still inclined to the more restrictive interpretation, although I readily recognise that I am unable to substantiate it by reference to case law or other interpretative documents. If anyone can, whether ‘for’ or ‘against’, I would be most interested to hear.
Jeremy.
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PGauntlett
- Posts: 153
- Joined: Fri Apr 05, 2019 5:25 pm
Restrictive BL
From the viewpoint of a document checker I still can't see how a package wrongly portmarked equates to a defective condition as stated in Art 32.
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larryBacon
- Posts: 689
- Joined: Fri Apr 05, 2019 5:26 pm
Restrictive BL
Phil,
My interpretation is based on the fact that, from a shipowner's/carrier's perspective, the reason for clausing bills of lading is to protect against claims. Usually this relates to loss, partial loss or damage, but if due to wrong port marking, or no port marking, the cargo was unloaded at the wrong port, the carrier is likely to clause the B/L accordingly, as in this case.
This interpretation centres on the word "defective". My dictionary defines defect as "a lack of something necessary for completeness". In my opinion, that lack may apply to the marks as well as the packaging itself.
Laurence
My interpretation is based on the fact that, from a shipowner's/carrier's perspective, the reason for clausing bills of lading is to protect against claims. Usually this relates to loss, partial loss or damage, but if due to wrong port marking, or no port marking, the cargo was unloaded at the wrong port, the carrier is likely to clause the B/L accordingly, as in this case.
This interpretation centres on the word "defective". My dictionary defines defect as "a lack of something necessary for completeness". In my opinion, that lack may apply to the marks as well as the packaging itself.
Laurence
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hatemshehab
- Posts: 220
- Joined: Fri Apr 05, 2019 5:19 pm
Restrictive BL
Although I am open to the interesting analysis of Mr. Bacon. I still have some ambiguous areas to clear.
On the backside of the B/L the following statement is printed “ Marks. Goods are not to be deemed sufficiently marked unless the port of destination is distinctly marked upon such by the shipper before shipment and all marks are in accordance with the prescriptions of the carrier”. Now this may prove that the interpretation of Mr. Bacon that the above clause as showing a defective condition in the packing, however my query is as such, why the carrier, in the first place accepted the marking which is supposed to be done under his prescription? Secondly could we treat the clause in question as a limitation clause or a superseding clause? Can we construe the clause as a repetition of the limitations appearing on the backside on the face of the bill of lading?
Hague-Visby rules state:
“- The shipper shall be deemed to have guaranteed to the carrier the accuracy at the time of shipment of the marks, number, quantity and weight, as furnished by him, and the shipper shall indemnify the carrier against all loss, damages and expenses arising or resulting from inaccuracies in such particulars. The right of the carrier to such indemnity shall in no way limit his responsibility and liability under the contract of carriage to any person other than the shipper.”
Further it states that:
“- Unless notice of loss or damage and the general nature of such loss or damage be given in writing to the carrier or his agent at the port of discharge before or at the time of the removal of the goods into the custody of the person entitled to delivery thereof under the contract of carriage, or, if the loss or damage be not apparent, within three days, such removal shall be prima facie evidence of the delivery by the carrier of the goods as described in the bill of lading.”
In the same rules under rights and immunities it state that:
“Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from
(n) Insufficiency of packing;
(o) Insufficiency or inadequacy of marks;
(p) Latent defects not discoverable by due diligence;
(q) Any other cause arising without the actual fault and privity of the carrier, or without the fault or neglect of the agents or servants of the carrier, but the burden of proof shall be on the person claiming the benefit of this exception to show that neither the actual fault or privity of the carrier nor the fault or neglect of the agents or servants of the carrier contributed to the loss or damage.
With all these rules giving the protection to the carrier, the question is why the carrier gas opted to clause the B/L with that particular clause?
I would appreciate the comments from Mr. Bacon as well as other well-informed members on this issue, particularly our friend Mr. Lee.
On the backside of the B/L the following statement is printed “ Marks. Goods are not to be deemed sufficiently marked unless the port of destination is distinctly marked upon such by the shipper before shipment and all marks are in accordance with the prescriptions of the carrier”. Now this may prove that the interpretation of Mr. Bacon that the above clause as showing a defective condition in the packing, however my query is as such, why the carrier, in the first place accepted the marking which is supposed to be done under his prescription? Secondly could we treat the clause in question as a limitation clause or a superseding clause? Can we construe the clause as a repetition of the limitations appearing on the backside on the face of the bill of lading?
Hague-Visby rules state:
“- The shipper shall be deemed to have guaranteed to the carrier the accuracy at the time of shipment of the marks, number, quantity and weight, as furnished by him, and the shipper shall indemnify the carrier against all loss, damages and expenses arising or resulting from inaccuracies in such particulars. The right of the carrier to such indemnity shall in no way limit his responsibility and liability under the contract of carriage to any person other than the shipper.”
Further it states that:
“- Unless notice of loss or damage and the general nature of such loss or damage be given in writing to the carrier or his agent at the port of discharge before or at the time of the removal of the goods into the custody of the person entitled to delivery thereof under the contract of carriage, or, if the loss or damage be not apparent, within three days, such removal shall be prima facie evidence of the delivery by the carrier of the goods as described in the bill of lading.”
In the same rules under rights and immunities it state that:
“Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from
(n) Insufficiency of packing;
(o) Insufficiency or inadequacy of marks;
(p) Latent defects not discoverable by due diligence;
(q) Any other cause arising without the actual fault and privity of the carrier, or without the fault or neglect of the agents or servants of the carrier, but the burden of proof shall be on the person claiming the benefit of this exception to show that neither the actual fault or privity of the carrier nor the fault or neglect of the agents or servants of the carrier contributed to the loss or damage.
With all these rules giving the protection to the carrier, the question is why the carrier gas opted to clause the B/L with that particular clause?
I would appreciate the comments from Mr. Bacon as well as other well-informed members on this issue, particularly our friend Mr. Lee.
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larryBacon
- Posts: 689
- Joined: Fri Apr 05, 2019 5:26 pm
Restrictive BL
Usually marks are advised in advance of loading to the vessel. Such advice may be acceptable, but some or all of the packages delivered to the vessel may not contain the agreed marks. It may not be practical for the stevedore to examine every mark, or if he sees one mark from a consignment which is incorrect, he cannot assume that some or all of the other packages are similarly incorrect. For practical reasons, he cannot halt the loading of the ship to audit all packages of this consignment. Instead, the disclaimer clause regarding lack of or incorrect marks is added. If the incorrect mark is known at time of loading, but the B/L does not indicate the above clause, the vessel may not be able to rely on the standard B/L conditions. If the incorrect mark is only discovered at unloading, the vessel may rely on the standard conditions.
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hatemshehab
- Posts: 220
- Joined: Fri Apr 05, 2019 5:19 pm
Restrictive BL
Thank you laurance.
Having read your response can disclaimer clauses be construed as evidencing a defective condition of goods or packaging? Don’t you think that this matter relates to the contract of carriage between the carrier and the shipper and does not refer the condition of goods? Does time limitations for stevedore justify clausing the bill of lading with such a disclaimer clause that might kill the whole transaction if the documents were rejected based on such “discrepancy”?
You will appreciate that these questions are from a bankers’ perspective and not a specialist in cargo. This query provides an interesting platform for us understand the cargo business in a more profound manner.
Having read your response can disclaimer clauses be construed as evidencing a defective condition of goods or packaging? Don’t you think that this matter relates to the contract of carriage between the carrier and the shipper and does not refer the condition of goods? Does time limitations for stevedore justify clausing the bill of lading with such a disclaimer clause that might kill the whole transaction if the documents were rejected based on such “discrepancy”?
You will appreciate that these questions are from a bankers’ perspective and not a specialist in cargo. This query provides an interesting platform for us understand the cargo business in a more profound manner.
Restrictive BL
Dear Hatem,
Upon your special request, may we add a few points here:
(1) Not all Bs/L are subject to the Hague Visby Rules, some based on the Hague Rules, some the Hamburg Rules and some the UNCTAD/ICC RMTD.
(2) For some markets, the carriers are well aware of frequent abuses on the part of the shippers on shipping marks or port marks and so decide to add such clauses on the face of their Bs/L to protect themselves since they cannot control such markings or stop the loading just to verify the markings, as already commented by Laurence.
(3) A master and a first mate are only trained and so authorised to adjudicate on the outside packing only and not the quality of the goods packed inside, which is the job of an appropriate expert (e.g. rice and beans expert, coffee expert), as we have said previously in our early postings on similar topics.
(4) If such remarks are added on the face of the B/L nevertheless, the one who adds them may be subject to challenges in a court of law for his competence to make such remarks. So a well trained seafarer would never add such remarks that are outside his scope of competence and authorisation.
(5) Can a master mariner state on the B/L "The jades loaded on this vessel appear not to be real Chinese jade. They appear to be Thailand jades". This job should be better left to his jade collecting girl friends from the various seaports that his vessel sets sails to.
(6) The more you know about transport, or international trades that matter, the more you know that there are certain things that you can never expect to happen and there are no valid explanations why people do this and do that. One of the valid answers is that you always find stupid people in every trade. That is why we consultants and trainers have the reason to exist. To be honest, we should thank them for creating the business for us.
http://www.tolee.com
[edited 11/26/01 9:12:29 PM]
Upon your special request, may we add a few points here:
(1) Not all Bs/L are subject to the Hague Visby Rules, some based on the Hague Rules, some the Hamburg Rules and some the UNCTAD/ICC RMTD.
(2) For some markets, the carriers are well aware of frequent abuses on the part of the shippers on shipping marks or port marks and so decide to add such clauses on the face of their Bs/L to protect themselves since they cannot control such markings or stop the loading just to verify the markings, as already commented by Laurence.
(3) A master and a first mate are only trained and so authorised to adjudicate on the outside packing only and not the quality of the goods packed inside, which is the job of an appropriate expert (e.g. rice and beans expert, coffee expert), as we have said previously in our early postings on similar topics.
(4) If such remarks are added on the face of the B/L nevertheless, the one who adds them may be subject to challenges in a court of law for his competence to make such remarks. So a well trained seafarer would never add such remarks that are outside his scope of competence and authorisation.
(5) Can a master mariner state on the B/L "The jades loaded on this vessel appear not to be real Chinese jade. They appear to be Thailand jades". This job should be better left to his jade collecting girl friends from the various seaports that his vessel sets sails to.
(6) The more you know about transport, or international trades that matter, the more you know that there are certain things that you can never expect to happen and there are no valid explanations why people do this and do that. One of the valid answers is that you always find stupid people in every trade. That is why we consultants and trainers have the reason to exist. To be honest, we should thank them for creating the business for us.
http://www.tolee.com
[edited 11/26/01 9:12:29 PM]
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larryBacon
- Posts: 689
- Joined: Fri Apr 05, 2019 5:26 pm
Restrictive BL
The disclaimer clauses have importance in two ways :
1. It is used to protect the vessel from claims. From the master's point of view, if there is no claim, these clauses act as a safeguard. If there is a claim, such clauses may be used as a defence, since the shipper would be aware, by the time he receives the B/L at the latest, of these clauses.
2. From the DC viewpoint, these clauses indicate the POSSIBLE deficiency in the packaging due to lack of or incorrect marks. In my opinion this possible deficiency is no different than a clause saying "packaging torn" or its ilk. The torn packaging may or may not affect its resale value. This is not a judgement that the master can make, but to protect his vessel from a claim that such damage occurred whilst in the care of the vessel, the B/L is claused accordingly. The same is true of B/L claused with an indication of missing or incorrect marks.
Generally the master of the vessel will have no knowledge of Doc Credits. His only concern will be that the B/L issued is legal, reflects the contract of affreightment and protects the vessel and him from unjustified future claims.
Laurence
1. It is used to protect the vessel from claims. From the master's point of view, if there is no claim, these clauses act as a safeguard. If there is a claim, such clauses may be used as a defence, since the shipper would be aware, by the time he receives the B/L at the latest, of these clauses.
2. From the DC viewpoint, these clauses indicate the POSSIBLE deficiency in the packaging due to lack of or incorrect marks. In my opinion this possible deficiency is no different than a clause saying "packaging torn" or its ilk. The torn packaging may or may not affect its resale value. This is not a judgement that the master can make, but to protect his vessel from a claim that such damage occurred whilst in the care of the vessel, the B/L is claused accordingly. The same is true of B/L claused with an indication of missing or incorrect marks.
Generally the master of the vessel will have no knowledge of Doc Credits. His only concern will be that the B/L issued is legal, reflects the contract of affreightment and protects the vessel and him from unjustified future claims.
Laurence
Restrictive BL
Laurence,
Having given the matter further thought any doubts I had regarding my own views concerning the interpretation of sub-Article 32a, in the light of your above comments, have now disappeared. This is because, to me, it is not the ‘condition’ of the packaging that is defective, with regard to the example under discussion, but the marks themselves. In other words, I cannot see that the fact that the marks happen to be applied to the packaging has any bearing on the packaging’s ‘condition’.
Regards, Jeremy
Having given the matter further thought any doubts I had regarding my own views concerning the interpretation of sub-Article 32a, in the light of your above comments, have now disappeared. This is because, to me, it is not the ‘condition’ of the packaging that is defective, with regard to the example under discussion, but the marks themselves. In other words, I cannot see that the fact that the marks happen to be applied to the packaging has any bearing on the packaging’s ‘condition’.
Regards, Jeremy