apparent order and condition in the bills of lading tendered for signature
28
”. To take
an extreme example, if goods are described as damaged in the transport document,
and the damage is observed by the master on shipment, nonetheless a clean transport
document may be issued.
29 The bill of lading accurately describes the cargo shipped
on board.
In the practice of shipping the description of the goods that appears in the bill of
lading and which has been inserted by the shipper may be changed following
discussion between the parties. If the carrier is unable to accept the description in
the bill of lading the first response will not necessarily be to clause the bill but to
consult with the shipper and consider whether the description of the goods in the bill
of lading can be changed in a way that enables the carrier to accept the bill without
qualification. Where this procedure is followed, it is a perfectly proper course and the
issue of a clean bill of lading cannot be challenged.
30
2.2 Standard of Vigilance
An initial question concerns the standard of the inspection to be carried out by the
carrier or his master/agent. In this regard the key word is “apparent”, which makes it
clear that the carrier is concerned only with the appearance of the cargo and is not
obliged to conduct a stringent examination.
From an early stage in the development of the law it has been held that what is
required is an external examination of the goods carried out with reasonable diligence. The carrier is not required to be a detective or professional analyst; he is not
required to investigate beyond the outer skin or surface of the goods, whatever form
it may take, or to instruct or take the advice of third party specialists. The advice of
an expert third party may be sought but such a course is to be determined in the
discretion of the carrier. The carrier only falters in his duty if he fails to observe
damage or defects visible on a reasonable external inspection, and beyond that which
is reasonably visible the carrier is not expected to be aware.
The authorities indicate this to be the general approach. In The Peter der
Grosse,
31 Sir R Phillimore was of the opinion that the words meant “apparently,
and so far as meets the eye, and externally, they were placed in good order on board
this ship”.
32 In Silver v Ocean SS Co
33 the bill of lading recorded that the consignment of cans of frozen eggs had been shipped in apparent good order and condition.
The court considered that the notation was justified notwithstanding that the cans
28 The David Agmashenebeli [2003] 1 Lloyd’s Rep 92, 105 per Colman J.
29 Sea Success Maritime Inc v African Maritime Carriers Ltd, supra.
30 Ibid.
31 (1875) 1 PD 414.
32 Ibid, p. 420.
33 [1930] 1 KB 416.
The Legal Concept and Significance of Clean Shipping Transport Documents
647
28
”. To take
an extreme example, if goods are described as damaged in the transport document,
and the damage is observed by the master on shipment, nonetheless a clean transport
document may be issued.
29 The bill of lading accurately describes the cargo shipped
on board.
In the practice of shipping the description of the goods that appears in the bill of
lading and which has been inserted by the shipper may be changed following
discussion between the parties. If the carrier is unable to accept the description in
the bill of lading the first response will not necessarily be to clause the bill but to
consult with the shipper and consider whether the description of the goods in the bill
of lading can be changed in a way that enables the carrier to accept the bill without
qualification. Where this procedure is followed, it is a perfectly proper course and the
issue of a clean bill of lading cannot be challenged.
30
2.2 Standard of Vigilance
An initial question concerns the standard of the inspection to be carried out by the
carrier or his master/agent. In this regard the key word is “apparent”, which makes it
clear that the carrier is concerned only with the appearance of the cargo and is not
obliged to conduct a stringent examination.
From an early stage in the development of the law it has been held that what is
required is an external examination of the goods carried out with reasonable diligence. The carrier is not required to be a detective or professional analyst; he is not
required to investigate beyond the outer skin or surface of the goods, whatever form
it may take, or to instruct or take the advice of third party specialists. The advice of
an expert third party may be sought but such a course is to be determined in the
discretion of the carrier. The carrier only falters in his duty if he fails to observe
damage or defects visible on a reasonable external inspection, and beyond that which
is reasonably visible the carrier is not expected to be aware.
The authorities indicate this to be the general approach. In The Peter der
Grosse,
31 Sir R Phillimore was of the opinion that the words meant “apparently,
and so far as meets the eye, and externally, they were placed in good order on board
this ship”.
32 In Silver v Ocean SS Co
33 the bill of lading recorded that the consignment of cans of frozen eggs had been shipped in apparent good order and condition.
The court considered that the notation was justified notwithstanding that the cans
28 The David Agmashenebeli [2003] 1 Lloyd’s Rep 92, 105 per Colman J.
29 Sea Success Maritime Inc v African Maritime Carriers Ltd, supra.
30 Ibid.
31 (1875) 1 PD 414.
32 Ibid, p. 420.
33 [1930] 1 KB 416.
The Legal Concept and Significance of Clean Shipping Transport Documents
647