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.
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[edited 8/5/02 9:14:34 PM]