2.5 Time When the Test Is Applied
In the case of a shipment transport document, the representation applies to the goods
at the time when they are loaded on board the carrying ship: in the case of a received
for shipment transport document, it is at the time when the goods are received for
shipment by the carrier. The representation describes the condition of the goods at
either specific point in time. It is far from indicating or guaranteeing that the goods
will arrive at their destination in good order and condition.
The position is dramatically illustrated by the facts in The Galatia.
40 After part of
a consignment of sugar was loaded on board the carrying ship a parcel of 200 tonnes
was damaged by fire and discharged. A separate bill of lading was issued in respect
of the 200 tonnes of damaged sugar which contained a printed clause that acknowledge that the sugar had been shipped in apparent good order and condition. There
was also attached a note indicating that the sugar to which the bill related had been
discharged because of damage caused by fire and/or water. It was held that the bill
was a clean bill because it contained nothing that qualified the statement that “at the
time of shipment” the goods were in apparent good order and condition. The damage
by fire had occurred after loading.
3 The Preconditions to a Valid Notation
The question arises whether there is a substantive precondition to a valid reservation.
Is it sufficient simply to make a bald statement to the effect that the goods have not
been received/shipped in apparent good order and condition or is the carrier obliged
to explain, at least to some degree, the nature of the observable damage or defect?
Quite clearly, if the notation on the transport document is wrong or unjustified the
carrier is in breach of contract. The immediate issue is whether in circumstances
when the carrier is justified in clausing the transport document, to be effective must
the clausing be formulated in a certain way.
There is little guidance in the international conventions as to how precisely the
carrier is to proceed. In the Hamburg Rules it is indicted with regard to details in the
bill of lading provided by the shipper
41 that a reservation by the carrier must
“specify” the inaccuracies, grounds of suspicion or the absence of reasonable
means of checking.
42 A similar provision is found in the Rotterdam Rules again
relating to information provided by the shipper
43 and where it is indicated, in the
applicable circumstances, that the qualification must indicate the information the
40 [1979] 2 All E R 726, [1980] 1 All E R 501, [1980] 1 Lloyd’s Rep 453(CA).
41 Set out in art 16.1.
42 Art 16.1.
43 Art 36.1.
650
D. R. Thomas
In the case of a shipment transport document, the representation applies to the goods
at the time when they are loaded on board the carrying ship: in the case of a received
for shipment transport document, it is at the time when the goods are received for
shipment by the carrier. The representation describes the condition of the goods at
either specific point in time. It is far from indicating or guaranteeing that the goods
will arrive at their destination in good order and condition.
The position is dramatically illustrated by the facts in The Galatia.
40 After part of
a consignment of sugar was loaded on board the carrying ship a parcel of 200 tonnes
was damaged by fire and discharged. A separate bill of lading was issued in respect
of the 200 tonnes of damaged sugar which contained a printed clause that acknowledge that the sugar had been shipped in apparent good order and condition. There
was also attached a note indicating that the sugar to which the bill related had been
discharged because of damage caused by fire and/or water. It was held that the bill
was a clean bill because it contained nothing that qualified the statement that “at the
time of shipment” the goods were in apparent good order and condition. The damage
by fire had occurred after loading.
3 The Preconditions to a Valid Notation
The question arises whether there is a substantive precondition to a valid reservation.
Is it sufficient simply to make a bald statement to the effect that the goods have not
been received/shipped in apparent good order and condition or is the carrier obliged
to explain, at least to some degree, the nature of the observable damage or defect?
Quite clearly, if the notation on the transport document is wrong or unjustified the
carrier is in breach of contract. The immediate issue is whether in circumstances
when the carrier is justified in clausing the transport document, to be effective must
the clausing be formulated in a certain way.
There is little guidance in the international conventions as to how precisely the
carrier is to proceed. In the Hamburg Rules it is indicted with regard to details in the
bill of lading provided by the shipper
41 that a reservation by the carrier must
“specify” the inaccuracies, grounds of suspicion or the absence of reasonable
means of checking.
42 A similar provision is found in the Rotterdam Rules again
relating to information provided by the shipper
43 and where it is indicated, in the
applicable circumstances, that the qualification must indicate the information the
40 [1979] 2 All E R 726, [1980] 1 All E R 501, [1980] 1 Lloyd’s Rep 453(CA).
41 Set out in art 16.1.
42 Art 16.1.
43 Art 36.1.
650
D. R. Thomas