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Forwarding Law - Coggle Diagram

- - - - Carrier
        
        Shipper
        
        Shipper duty
        
        Common Law
        
        Common Law duty
        
        1) dangerous goods
        (for time charter, voyage charter and BOL)
        
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        2a) implied port safety
        (for time charter)
        
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        2b) likely NO implied port safety
        (for BOL and Voyage Charter)
        
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        Freight
        
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        Accuracy of certain info
        (:warning: vs. Art III rule 5)
        
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        Statute or Convention
        
        Hague-Visby
        
        Dangerous cargo
        (Article IV, Rule 6)
        
        3 more items...
        
        Indemnity by Shipper of Accuracy of certain info
        (Art III Rule 5)
        
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        Carriage of Goods by Sea Act 1992
        
        Shipper's duty to pay Freight
        
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        Convention / Statute
        
        Hague - Visby
        
        Period of application of the Rules
        Art 1(e)
        
        "tackle to tackle" :!!: including storage and transipment in intermediate ports if the contract expressly allows for storage and transhipment before discharge.
        
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        No Derogation
        Art III Rule 8
        Derogation before loading and after discharging
        Art VII
        
        Clauses not nullified
        -liberty to deviate will not infringe the Rules.
        -liberty to have cargo transhipped on terms
        -liberty to carry on deck.
        -Demise clause / carrier idenity clause and Circular indemnity clauses
        
        Carriage of Goods by Sea Act 1971 (give effect Hague-Visby Rules)
        
        Force of Law
        S. 1(2) The provisions of the Rules, as set out in the Schedule to this Act, shall have the force of law.
        
        Under article 7(2)23 of the Rome Convention on the Law Applicable to Contractual Obligations, the use of the wording 'force of law' has the effect of making the application of the Rules mandatory and, as such, the law of the forum must be applied, no matter what the governing law of the contract is.
        
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        Carrier's duty
        
        Common Law
        
        Common Law duty
        
        Care for Cargo
        vs. Art III Rule 2
        
        Burden of proof
        
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        Strict liability for cargo damage, unless falls under the following exemptions:
        1) Act of God
        2) Act of public enermy
        3) Inherent Vice of cargo
        4) insufficient package by shipper
        5) general average
        
        Seaworthy
        
        Aboloute warranty of seaworthy ship
        
        at the time of sailing (and doctrine of stages) for voyage chater and BOL;
        
        at the commencement of the period of hiring for time charter.
        
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        Reasonable despatch
        (for voyage charter and BOL)
        
        Effect of breach
        
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        Unless for the safety of ship, crew and cargo, otherwise failure includes:
        1) sails at reduced speed (The Pearl C [2012])
        2) take a route other than the shortest and quickest (The Hill Harmony [1998]);
        3) puts into, or delay at, a port of refuge unnecessarily (Istros (Owners) v. Dahlstrom (1930)
        4) Refuses to put into a port to which he has been ordered by the Charterers (The Charalambos N. Pateras [1972] );
        5) prevents the loading or discharge of cargo (The Agios Giorgis [1976])
        
        time is of essence (under US Law) - ??my note: can not alwasy be a condition in US??
        
        Deviation
        (for voyage charter and BOL)
        
        Justifiable Deviation
        
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        Liberty Clause
        
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        Consequence of deviation
        
        2 more items...
        
        Likely NO Deviation
        (for time charter)
        
        Pure time charter -likely NO
        
        1 more item...
        
        Trip time charter
        
        1 more item...
        
        Statute or Convention
        
        Hague-Visby
        
        Deck Cargo
        Art 1(c)
        
        For the Rules not to apply, both conditions are required:
        1) deck cargo clearly stated in BOL
        2) actually carried on deck
        
        1 more item...
        
        Seaworthy
        
        Due diligence of Seaworthy, before and at the beginning of the voyage
        Art III Rule 1 & Art IV Rule 1
        
        4 more items...
        
        Deviation
        Article IV Rule 4
        
        Justifiable Deviation
        
        1 more item...
        
        Liberty clause
        
        1 more item...
        
        "load, handle, stow,.. discharge"
        Ariticle III Rule 2.
        
        Personal and not delegable
        
        1 more item...
        
        In English law, carrier can contract out the duties of "load handle, stow…" :!!: But other jurisdictions have a differerent view on this.
        
        1 more item...
        
        Merchant Shipping Act 1995
        
        Deviation
        
        s 93(1) The master of a ship, on receiving at sea a signal of distress or information from any source that a ship or aircraft is in distress, shall proceed with all speed to the assistance of the persons in distress ...The consequences for a breach of the obligation can include, for a summary conviction, imprisonment for a term not exceeding six months, or a fine not exceeding the statutory miniumum, 'or both'. For a conviction on indictment, the penalty is imprisonment for a term not exceeding two years, or a fine, 'or both' . The ambit of this statutory obligation and its consequences is, however, limited as it does not extend to events occurring on the high seas, outside the territorial sea of UK.
        
        Carriage of Goods by sea Act 1971
        
        Seaworthy
        
        S3 There shall not be implied in any contract for the carriage of goods by sea to which the Rules apply by virtue of this Act any absolute undertaking by the carrier of the goods to provide a seaworthy ship.
        
        Carrier's right
        
        Lien
        
        (i) common law lien
        English law - possessry in nature
        US law - maritime lien in nature
        
        Characteristics of common law lien
        
        1) rely on physical possession
        2) not limited to contractual parties. Can be exercised against non-contract party.
        3) only exercisable on freight payable upon delivery (i.e. the common law freight) - common law lien is not available to freight paid before delivery (such as advance payment); also not available for freight due after completion of discharge
        4) The lien may not be exercised over goods on different voyages covered by different contracts of carriage.
        5) no right of sale of the goods (even if resultant expensis is high), unless the goods have been abandoned. If the lien is lawfully exercising their lien, the charterers remain liable for hire / demurrage, and costs of storing and safeguarding the cargo, irrespective of whether the charter has been terminated:
        6) Notice - :!!: date of notice, if too late, lose chance to secure freight payable
        7) :warning: the owners continue to be bailees of the cargo and owe the charterers a duty to take reasonable care of the cargo.
        
        Time to exercise
        
        at the time of discharge
        
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        Place to exercise
        
        Place to exercise-anchored off the declared port of discharge
        
        Subject of common law lien:
        
        (i) common law freight (i.e freight upon delivery);
        (ii) general average contributions;
        (iii) expenses in protecting and preserving the goods.
        
        Freight Pre-paid
        
        Freight Prepayed
        where 'prepaid' bills of lading under sub-chater are issued, the lien on sub-freights will be lost. Howevever the master cannot refuse to sign freight prepaid bills of lading if these are required by the charterers (depends on wording in the sub-charter).
        
        1 more item...
        
        (2) Contract lien
        
        Characteristics of contract lien
        
        1) explicit contract wordings will replace default common law position
        2) exerciseable only aganist party to the contract (But potentially exercisable against holder of BOL, if the full terms of CPA clause have been incoporated into the BOL)
        
        Subject of contract lien:
        
        Subject to contract defination
        
        1 more item...
        
        Effect of Cessor clause
        e.g. "Charterers' liability shall cease as soon as the cargo is on board."
        
        Cessor clause is operative only to the extent that the owners have an alternative remedy by way of lien on the cargo and the lien is capable of exercise
        :warning: 1) based on wording to determine the scope / subject of lien
        2) if lien cover the subject and can be exercised, cesser clause is operative and owerns can only get remedy from lien
        3) if the subject/claim is not covered by the lien, cessor clause is inoprative and charterers remain liable
        4) if the subject/claim is covered by the lien, but the lien cannot be exercised cessor clause is inoprative and charterer remains liable
        
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        3) Charterer's lien on the ship
        
        “a lien on the Ship for all monies paid in advance and not earned”.
        :!: not maritime lien, contract in nature
        
        The Lancaster [1980] holding that the lien is not propitiatory right. Charterers can only restrain the owners from resuming control over the use of the ship “presumably by injunction”. But no more further rights such as insurance money.
        
        Statute / Convention
        
        Exeptions
        
        Art IV Rule 2(a)
        
        Gosse Millerd Ltd v Canadian Government Merchant Marine Ltd (1929) - the House of Lord follow pre-Hague judement- "the management of the ship" was interpreted as excluding liability for bad stowage.
      - Master
        
        Common Law
        
        the master may give up the goods to the first person who presents him with a bill of lading, provided
        (i) that he has no notice of other claimants to the goods and
        (ii) no reasonable suspicion that the holder is not entitled to the goods.
        
        what if the bill is Forged - Vessel Owner who issued the BOL maybe liable for loss caused by forged bill - from insurance and public policy consideration
        
        Motis Exports Ltd v Dampskibsselskabet (2000) - ship owner who issued the BOL is liable for loss against delivery on forged BOL. The ship owners has duty to ensure the integrety of the BOL. Exclusion clause needs to be clear and specific. Broad and wide exclustion clause does not work.
        
        master customarily signs bills of lading as Owners agent.
        
        (normally under time charter) - master may be agent to charterer and has a duty to sign the BOL presented by Charterer (against an indemnity for higher liability in the BOL compared with the liability in CPA)
        
        Case of breach of duty to obey order
        NYPE 93: Master is agent of Charterer. Need to sign bill "in conformity with mates receipts.." Arbitral decision: Time loss due to delay by master to clause the bill, i.e. not in conformity with mates receipts is off-hire.
        
        Master's opinin to clause the bill is an objective test :warning:
        
        1 more item...
        
        Duty to obey the order only if Charterers have power to give the order
        
        1 more item...
        
        Case of Indemnity
        CoastLines v Huding [1972] - even without express indemnity. there is an implied term in the charterparty for charterer to indeminty the greater liability than that contained in the charterparry after master signed
        
        Dangerous Cargo
        
        1) the master can refuse to load the dangerous cargo if cargo is outwith the specified description.
        2) If the master accepts the cargo, the carrier may claim an enhanced rate of freight under an implied contract arising from the tender and acceptance of the different goods
        
        The Sussex Oak (1950)- time charter case- "could not think 'that the clause in the time charter-party which puts the master under the orders of the charterers as regards employment is to be construed as compelling him to obey orders which the charterer has no power to give'.
        
        Statute / Convention
    - - Liner booking note (not a document of title)
      - Tally Clerks' receipt (not a document of title)
      - Mates Receipt
        
        Not a document of title in common law unless there is custom to prove otherwise
        
        Kum v Wah Tat bank (1971): goods delivery without BOL. The bank contended mate receipts is same as BOL in the trading custom, but failed.
        
        Maybe a document of title under statute
        
        Factors Act 1889 - maybe document of title where it is "proof of possession or control of goods"
      - Waybill
        
        Voss Peer v APL (2002) Singapore case - Sea waybill is not same as straight BOL.
        The Rafaela S [2005} House of Lords- way bill is not straight BOL.
      - Delivery Order
      - Bill of Lading
        
        Freight Forwarder's House Bill of Lading - subject to construction, but normally not a BOL if acting as agent of shipper, in such as case, it is not even a bailee :red_flag:
        
        is Forwarder Agent or Principle?
        
        Principle
        
        holding himself as "carrier"; "to carry"; Lien in goods; is "Shipper" under actual carrier's BOL, then Issue its own BOL to shipper; Lump sum;
        
        Agent
        
        " to arrange for carriage"; Identify actual carrier in BOL; Commission
    - - Evidence
        
        Common Law
        
        carrier vs. shipper: Prima Facie evidence.
        carrier vs. bona fade purchaser for value: conclusive evidence
        
        " in apparent good order and condition"
        
        Estoppel :warning:
        
        Estoppel by 3rd party as a conclusive evidence
        Estoppel requires- 1) statement of fact 2) maker intended the representation should be relied upon 3) 3rd party in fact relied upon 4) 3rd party suffer detriment.
        
        1 more item...
        
        Container case :warning:
        
        The TNT Express (1992) the OZ case. "apparent good order and condition" is only referring to the container not the goods inside.
        
        Master's opinin is an objective test :warning:
        
        The David Agmashenebeli [2003] - objective standard of reasonably observant master, not master's personnel opinion even if its honest (but could be eccentric)
        
        Qualifications
        
        "said to be"; "said to contain xyz quantity"/i.e. STC; "Weight, measure, marks, numbers, quality, content and value unknown" - with these qualifications, BOL cannot constitute a prima facie evidence (certainly not conclusive evidence) because the subject matters are unknown to the master
        
        Statute / Convention
        
        Hague - Visby
        
        Article III, Rule 4 is similar to common law position, apply to BOL and other document of tittle
        
        COGSA 1992
        
        S.4: carrier vs. lawful holder of the bill : conclusive evidence - :warning: apply only to BOL, NOT any other document of title.
      - Contractual rights vs. Property rights
        
        Common Law
        
        Property Right
        
        Endorsement of BOL is transfer of property, :!!: not transfer of contractual rights and obligations.
        
        :warning:Exception-Pledge (i.e. security for finance) - the mere endorsement and delivery of BOL by way of pledge does not pass the property in the goods to the endorsee. :!!: But the contract right will pass based on COGSA 1992
        
        Format requirement for endorsement
        
        must have "to order" or "to bearer".- vital word of negotiable BOL :!!:
        Must state the goods have been "shipped", i.e. not received for shipment BOL.
        
        Tort of negligence requires for ownship of goods
        
        The Wear Breeze (1969) - cargo damages on the way. The claimant who is the buyer sue in tort for negligecne before cargo delivery. Held action in tort of negligence would not lie because the claimant is not the owner of goods in question before discharge.
        
        Contractrual Right
        
        BOL is a good evidence of the contract of carriage, not the contract itself.
        Even if BOL is not issued but if there is a clear intention to issue BOL, the effect of BOL is not affected, i.e. Hague-Visby rules still apply.
        
        Pyrene Co Ltd v Scindia Steam Navigation Co Ltd [1954]- "the contract of carriage is always concluded before the bill of lading, which evidences its terms, is actuaIly issued...for the issue of the bill of lading does not necessarily mark any stage in the development of the contract; often it is not issued till after the ship has sailed ..."
        
        Incoporation of CPA terms
        
        As per contract law - i.e. effective as long as steps have been taken to bring it reasonably to the notice of the shipper before or at the time he enters into the contract of carriage.
        :!!: equitable doctrine of constructive notice is inapplicable
        Manchester Trust v. Furness (1895) - not binding on the holders of the bill who had notice of the existence of the charter party by reference to it in the bill. Lindley L.J rejectied an argument that reference to the charter gave constructive notice of the clause
        A reference to 'all terms, conditions, and exceptions to be as per charterparty' refer only to those relating to the main undertakings in the bill of lading agreement, :!!: Arbitration or exclusive jurisdiction for litigation clauses are not incorporated
        
        Statute / Convention
        
        COGSA 1992
        Contractual Right
        
        S. 2(1) Holder "have transferred to and vested in him all rights of suit under the contract of carriage as if he had been a party to that contract." (:warning: contractual right, not property right.)
        S. 2(5)(a)&(b) the shipper or intermediate holder cease to have contractual rights when other persons become lawful holders. (:warning: but the liability remains)
        
        S(5)(2) Holder
        
        s 5(2)(a) Holder: 1) Named consignee and 2) in possession of BOL in good faith
        
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        s.5(2)(b) Holder: 1) completion of endorsement by delivery or completion of transfer for bearer2) in possession of BOL in good faith
        
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        s.5(2)(c) Holder: 1) transaction (but needs to be normal transaction) at the time hen possession of BOL no longer give rights to possesssion of goods (e.g. at the time goods is already lost or the bill is spent) 2) possession of BOL in good faith
        
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      - Owner's bill or Charterer's bill
        
        Common Law
        
        the general rule is that the shlp Owner is the carrier and the master customarily signs bills of lading as Owners' agent, unless the BOL provide otherwise
        
        If the front of bill contradict with the terms on the reverse of bill- :warning: front page prevail
        
        The Starsin [2004] House of Lords - the face of the bill is clearly charterers bill, but the reverse contains demise clause and carrier identity clasue both indicating carrier's bill. Held: one should look for the identity of the carrier on the face of the bill rather than the clauses on the reverse.Reading the terms on the reverse was not something that the 'reasonable reader of the bill of lading' did."