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From: Carriage of Goods by Sea (3rd Edition)
Stephen Girvin

Bibliography »

From: Carriage of Goods by Sea (3rd Edition)
Stephen Girvin

Part II Bills of Lading and Other Documents of Carriage, 8 The Bill of Lading as a Document of Title »

From: Carriage of Goods by Sea (3rd Edition)
Stephen Girvin
This chapter addresses the bill of lading as a document of title. At common law, bills of lading are documents of title to goods. Accordingly, bills of lading in the accepted form can, by endorsement and delivery, or delivery alone, transfer constructive possession in the goods to the holder. The effect of the transfer of constructive possession to the holder is that the holder of the bill of lading is entitled to physical delivery of the goods at the port of destination and the bill can be used as security for a debt. Documents of title also have a limited statutory meaning. Section 1(4) of the Factors Act 1889, which is incorporated, by reference, in section 61(1) of the Sale of Goods Act 1979, provides that ‘the expression “document of title” shall include any bill of lading’. The chapter then looks at the transfer of rights and obligations in bills of lading; the provision under the Carriage of Goods by Sea Act 1992; and spent bills of lading.

Part II Bills of Lading and Other Documents of Carriage, 6 The Bill of Lading as a Receipt for the Goods Shipped »

From: Carriage of Goods by Sea (3rd Edition)
Stephen Girvin
This chapter focuses on the bill of lading as a receipt for the goods shipped. The face of a bill of lading contains information about the shipment of goods, including factual information concerning the goods which are received for shipment by the carrier. This includes information as to quantity and weight, any leading marks, and the apparent order and condition of the goods. These statements on the face of the bill of lading are directly relevant to the exercise of the holder’s contractual and other legal rights against sellers of the goods or, indeed, the carrier. The master’s principal responsibility in relation to the bill of lading is to ensure that the information on the face of the bill of lading corresponds to the mate’s receipt. The chapter then considers clauses in bills of lading and indemnities, as well receipt under the Carriage of Goods by Sea Act 1992.

Part II Bills of Lading and Other Documents of Carriage, 7 The Bill of Lading as Evidence of the Contract of Carriage »

From: Carriage of Goods by Sea (3rd Edition)
Stephen Girvin
This chapter assesses the bill of lading as evidence of the contract of carriage. Where the contract of carriage is concluded before the bill of lading is issued, the shipowner cannot unilaterally alter the terms of the contract by introducing contradictory written terms in the bill of lading. At most, the written statements on the reverse of the bill of lading should be considered as excellent evidence of the terms of the contract. The normal rule differs when there is a charterparty relationship between a charterer and a shipowner. Where the charterer also holds a bill of lading as the shipper of the goods, the bill of lading is merely a receipt for the goods because all terms of carriage are in the charterparty. So far as third parties are concerned, the matter is clarified by section 2(1) of the Carriage of Goods by Sea Act 1992, which provides that the lawful holder has all the rights of suit under the bill of lading ‘as if he had been a party to that contract’.

Part I Introduction, 1 The Business of Carriage of Goods »

From: Carriage of Goods by Sea (3rd Edition)
Stephen Girvin
This chapter provides an overview of the business of carriage of goods by sea. Cargoes carried by sea include raw materials, such as oil, gas, coal, and iron ore. Agricultural commodities and manufactured goods are also carried by sea, together with industrial materials. The nature of the goods carried and their size determine the contractual relationships between trading parties and counterparties. Bulk goods require different treatment from general cargoes, containerized cargoes, and refrigerated cargoes. The chapter then considers some of the main vessel or ship types and their characteristics as a means to assist in understanding the cargo disputes which may arise. It also looks at the freight market and the charterparty market. Contracts for the international sale of goods typically involve a seller (the shipper) located in one country, and a buyer in a different country; most parties make use of specialized agents, including forwarding agents, loading brokers, and shipbrokers. The responsibilities of sellers and buyers under the contracts of sale will depend upon the terms of the contract entered into. Finally, the chapter explores contracts of affreightment before studying cargo claims.

Carriage of Goods by Sea »

Stephen Girvin

Part II Bills of Lading and Other Documents of Carriage, 10 The Carriers’ Delivery Obligation »

From: Carriage of Goods by Sea (3rd Edition)
Stephen Girvin
This chapter explores the carriers’ delivery obligation. Following from the recognition that the bill of lading is a document of title at common law, a further principle has evolved which requires the master only to part with the goods on presentation of the bill of lading by the holder. This delivery function has been described as the ‘principal role’ of the bill of lading. The obligation to effect delivery pursuant to the presentation rule embodies an obligation to place the goods under ‘the absolute dominion and control of the consignee’. The shipowner’s obligation under the bill of lading contract and in bailment is not discharged until it has actually surrendered possession to the holder and the divesting or relinquishing of the ‘power to compel any dealing in or with the cargo which can prevent the consignee from obtaining possession’. The chapter then looks at the Rotterdam Rules, which are unique among cargo conventions in making detailed, albeit controversial, provision for the delivery of goods.

Part V The Obligations of the Carrier, 27 The Carrier’s Obligations under the Hague, Hague-Visby, and Rotterdam Rules »

From: Carriage of Goods by Sea (3rd Edition)
Stephen Girvin
This chapter examines the carrier’s obligations under the Hague, Hague-Visby, and Rotterdam Rules. These include the issue of bills of lading, seaworthiness, and care of cargo. Article III, rule 3 of the Hague and Hague-Visby Rules provides that: ‘After receiving the goods into his charge the carrier or the master or agent of the carrier shall, on demand of the shipper, issue to the shipper a bill of lading’. Article III, rule 1 of the Hague and Hague-Visby Rules states that: ‘The carrier shall be bound before and at the beginning of the voyage to exercise due diligence to (a) make the ship seaworthy; (b) properly man, equip and supply the ship; (c) and make the holds, refrigerating and cool chambers, and all other parts of the ship in which goods are carried, fit and safe for their reception, carriage and preservation’. Meanwhile, article III, rule 2 states that: ‘Subject to the provisions of Article IV, the carrier shall properly and carefully load, handle, stow, carry, keep, care for and discharge the goods delivered’.

Part II Bills of Lading and Other Documents of Carriage, 12 Charterparties and their Relationship with Bills of Lading »

From: Carriage of Goods by Sea (3rd Edition)
Stephen Girvin
This chapter highlights the relationship between charterparties and bills of lading. A bill of lading issued by the shipowner to the charterer performs two of the functions of a normal bill of lading, operating as a receipt for the goods shipped and, potentially, as a document of title which, provided it is in the appropriate form, may be endorsed to a third party. The bill of lading is not evidence of the contract of carriage because the relationship between shipowner and charterer is governed by the terms of the charterparty. The same principle applies where bills of lading, initially issued to a third party, are endorsed to the charterer. Potential difficulties of identification arise when the bill of lading does not clarify which charterparty in a string is incorporated. The general rule is that reference to an undated charterparty does not negative an intention to incorporate a charterparty.

Contents »

From: Carriage of Goods by Sea (3rd Edition)
Stephen Girvin

Part VII Charterparties, 36 Damages »

From: Carriage of Goods by Sea (3rd Edition)
Stephen Girvin
This chapter reviews the law relating to damages, which is the subject of several treatises and textbooks. It looks at the basic principles before analysing some specific aspects of damages in the carriage of goods by sea. In general terms, the innocent party almost always resorts to a remedy sounding in damages, often because this is the only remedy available. It is possible to recover for losses in the tort of negligence, subject to fulfilling the usual criteria. The chapter then considers damages for not presenting bills of lading; damages under international conventions; damages for failure to load cargo; damages for failure to carry cargo; damages for delay; damages for non-delivery of cargo; deadfreight; and damages under a time charterparty.

Part V The Obligations of the Carrier, 25 Deviation »

From: Carriage of Goods by Sea (3rd Edition)
Stephen Girvin
This chapter reviews the doctrine of deviation. The origins of the doctrine appear to derive from marine insurance, where there was established authority to the effect that when a vessel deviated from the insured route, the vessel was thereafter uninsured for subsequent loss, unless beyond the control of the master or the shipowner, or justified. The problem today is less acute and the doctrine is rarely strictly applied. Marine insurance policies contain ‘held-covered’ clauses, whereby the assured is covered in the event of a deviation on payment of an additional premium. At common law, the shipowner impliedly undertakes to proceed on a voyage, in the designated vessel, by ‘the usual and customary course’. A deviation is a deliberate and unjustifiable departure from the usual and customary course from the loading port to the discharge port.

Part III International and Domestic Regulation, 14 Domestic Legislation on Cargo Liability »

From: Carriage of Goods by Sea (3rd Edition)
Stephen Girvin
This chapter discusses domestic legislation on cargo liability. In English law, common carriers, such as masters of general ships, were carriers who exercised a public employment, offering carriage to all persons wishing to use the services offered, whether for the carriage of goods (or of passengers). The general principle, as in Roman law, was that the carrier was liable as an ‘insurer’ of the goods, absolutely responsible for delivering the goods at the destination in like order and condition. Unlike public carriers, private carriers undertake the carriage of goods but do not hold themselves out as exercising a public employment. Usually, the carrier’s obligations arise from his contractual agreement to carry the goods of the shipper and, where for reward, private carriers are bailees and have the ordinary responsibilities of a bailee of the goods. The chapter then looks at the Harter Act of 1893 and legislation in other Commonwealth countries, including the Shipping and Seamen Act 1903 in New Zealand, the Sea-Carriage of Goods Act in Australia, and Canada’s Water-Carriage of Goods Act in 1910.

Part VI The Rights and Immunities of the Carrier, 28 Exceptions from Liability under the Hague, Hague-Visby, and Rotterdam Rules »

From: Carriage of Goods by Sea (3rd Edition)
Stephen Girvin
This chapter evaluates the exceptions from liability under the Hague, Hague-Visby, and Rotterdam Rules. While the Hague and Hague-Visby Rules impose on the carrier the obligations in article III, rule 1, in return the carrier may rely on the provisions of article IV, such as article IV, rule 2, and various cognate provisions, such as article IV, rule 5 (limitation of liability). The catalogue of exceptions from liability may be surrendered in part but may not be added to. As a matter of interpretation, the correct approach ‘is to construe the exceptions in their own terms, while bearing in mind that they fall under a general heading and have to be construed as part of the overall scheme of obligations, liabilities and exceptions’. Meanwhile, article 17.3 of the Rotterdam Rules provides that: ‘The carrier is also relieved of all or part of its liability pursuant to paragraph 1 of this article if, alternatively to proving the absence of fault as provided in paragraph 2 of this article’, it proves that one or more of the listed events or circumstances caused or contributed to the loss, damage, or delay. The chapter then considers the protection of servants or agents of the carrier.

Part IV The Responsibilities of the Shipper, 23 Freight »

From: Carriage of Goods by Sea (3rd Edition)
Stephen Girvin
This chapter highlights freight, which is the consideration payable to the carrier for the safe carriage of the goods, in a merchantable condition, and their delivery at the port of discharge. Freight is payable under a voyage charterparty or under a bill of lading issued by the shipowner and, in some cases, by the charterer. If the parties have agreed no freight, it is possible to determine a ‘reasonable sum’ as remuneration from the state of the freight market. The common law presumption is that freight is payable only on delivery of the goods to the consignee at the port of discharge, following presentation of an original bill of lading or letter of indemnity. The carrier may not demand payment unless it is willing and able to deliver the goods at the place agreed. The chapter then looks at advance freight, lump sum freight, pro rata freight, and back freight.

Part VII Charterparties, 35 Frustration »

From: Carriage of Goods by Sea (3rd Edition)
Stephen Girvin
This chapter highlights the doctrine of frustration, which is a doctrine of general contract law, but one in which many of the leading cases have been charterparty cases. It considers the doctrine in contracts for the carriage of goods by sea where, read as a whole, few cases invoke the doctrine because of the presence of force majeure clauses, which deal with subsequent events. The chapter then looks at the essence of the doctrine of frustration. The issue of whether or not the contract has been frustrated is a question of law but ‘that conclusion is almost completely determined by what is ascertained as the mercantile usage and the understanding of commercial men’. Thus, it has been said in the same case that the doctrine is ‘not lightly to be invoked to relieve contracting parties of the normal consequences of imprudent commercial bargains’.

Part III International and Domestic Regulation, 16 The Hamburg Rules »

From: Carriage of Goods by Sea (3rd Edition)
Stephen Girvin
This chapter evaluates the Hamburg Rules, starting with a background of its drafting by the United Nations Commission on International Trade Law (UNCITRAL). The Hamburg Rules comprises 34 articles and a Common Understanding. The chapter then considers the core provisions of the Rules which are different to the Hague and Hague-Visby Rules. Article 2(1) of the Hamburg Rules provides that the Rules apply to inbound and outbound contracts of carriage by sea between two different states, or if ‘one of the optional ports of discharge provided for in the contract is the actual port of discharge and is in a contracting state’, or if the bill of lading ‘or other document’ is issued in a contracting state or provides that ‘the provisions of the Convention or the legislation of any State giving effect to them are to govern the contract’. The Rules do not apply to coastal voyages, although it is likely that a contracting state will make them applicable to coastal trades.

Part III International and Domestic Regulation, 17 Hybrid Carriage Regimes and the Rotterdam Rules »

From: Carriage of Goods by Sea (3rd Edition)
Stephen Girvin
This chapter focuses on hybrid carriage regimes. After the coming into force of the Hamburg Rules in 1992, a number of countries which had not ratified them took steps towards their domestic implementation. There are a number of hybrid domestic regimes in civil law countries. In China, the Maritime Law of the PRC of 1992 contains provisions on carriage of goods by sea drawn from the Hague and Hague-Visby Rules and also from the Hamburg Rules. During the period of national initiatives, the Comité Maritime International’s (CMI) role at the vanguard of unifying instruments, in this and other areas of maritime law, was challenged. Nevertheless, it continued to undertake work on the uniformity of carriage regimes. The chapter then looks at the Rotterdam Rules.

Index »

From: Carriage of Goods by Sea (3rd Edition)
Stephen Girvin