may be relevant to the performance of the contract of carriage between shipper and
carrier, but may be of even greater relevance to the position of the consignee who
may come into a contractual relationship with the carrier, and, if also the buyer of the
goods, be party to a contract of sale with the shipper/seller. The general position is
that as between shipper and carrier the information in the transport documents is
prima facie evidence; but as between consignee acting in good faith and carrier it is
conclusive.
16 With regard to the contract of sale the transport documents and the
information contained may have to comply or be consistent with the terms of the sale
contract, with breach sounding in damages and/or a right to reject non-conforming
documents and/or the goods.
17
In this contribution the discussion is focussed on the statement in transport
documents relating to the condition of the goods shipped. Much of the discussion
will allude to bills of lading but may equally be applicable to sea transport documents generally.
2 The Nature and Scope of the Carrier’s Duty
2.1 The Basic Obligation
As a matter of commercial practice or contractual obligation the carrier, subject to a
contractual term to the contrary, is obliged to issue a transport document which
includes a statement as to the apparent order and condition of the cargo when
received for carriage or loaded on the ship. All the international conventions are in
accord in this regard.
18
The duty clearly indicates that when a transport document is issued the carrier is
obliged to scrutinise the cargo at the relevant point in time and record his observations on the document. If all is satisfactory the carrier is obliged to record that the
goods have been received for shipment or shipped, as the case may be, “in apparent
good order and condition”, which in turn is the indicator of a clean transport
document. On the other hand, if damage or defect is observed this is to be recorded
on the face of the bill in the form of a notation or reservation or qualification,
19 in
which case the document is described as being “claused”.
20 Clausing has been
described judicially as “ a notation on the bill of lading by the master or his agent,
16 Considered infra under the title ‘The evidentiary significance of documentary representations’.
17 As would be the case under a CIF contract of sale.
18 Hague Rules arts 3.3, 3.7 & 3.3(c); Hamburg Rules arts 14.1, 15(b), 15.2; Rotterdam Rules arts
35, 36.2(a).
19 These are the various words used to describe the procedure.
20 Sometimes it is described as “unclean” which is awkward language to apply to a document.
The Legal Concept and Significance of Clean Shipping Transport Documents
645
carrier, but may be of even greater relevance to the position of the consignee who
may come into a contractual relationship with the carrier, and, if also the buyer of the
goods, be party to a contract of sale with the shipper/seller. The general position is
that as between shipper and carrier the information in the transport documents is
prima facie evidence; but as between consignee acting in good faith and carrier it is
conclusive.
16 With regard to the contract of sale the transport documents and the
information contained may have to comply or be consistent with the terms of the sale
contract, with breach sounding in damages and/or a right to reject non-conforming
documents and/or the goods.
17
In this contribution the discussion is focussed on the statement in transport
documents relating to the condition of the goods shipped. Much of the discussion
will allude to bills of lading but may equally be applicable to sea transport documents generally.
2 The Nature and Scope of the Carrier’s Duty
2.1 The Basic Obligation
As a matter of commercial practice or contractual obligation the carrier, subject to a
contractual term to the contrary, is obliged to issue a transport document which
includes a statement as to the apparent order and condition of the cargo when
received for carriage or loaded on the ship. All the international conventions are in
accord in this regard.
18
The duty clearly indicates that when a transport document is issued the carrier is
obliged to scrutinise the cargo at the relevant point in time and record his observations on the document. If all is satisfactory the carrier is obliged to record that the
goods have been received for shipment or shipped, as the case may be, “in apparent
good order and condition”, which in turn is the indicator of a clean transport
document. On the other hand, if damage or defect is observed this is to be recorded
on the face of the bill in the form of a notation or reservation or qualification,
19 in
which case the document is described as being “claused”.
20 Clausing has been
described judicially as “ a notation on the bill of lading by the master or his agent,
16 Considered infra under the title ‘The evidentiary significance of documentary representations’.
17 As would be the case under a CIF contract of sale.
18 Hague Rules arts 3.3, 3.7 & 3.3(c); Hamburg Rules arts 14.1, 15(b), 15.2; Rotterdam Rules arts
35, 36.2(a).
19 These are the various words used to describe the procedure.
20 Sometimes it is described as “unclean” which is awkward language to apply to a document.
The Legal Concept and Significance of Clean Shipping Transport Documents
645