carrier was unable to check and state what the carrier reasonably considers to be the
accurate information.
44
There is nothing further expressly indicated in the conventions relating to a
statement appertaining to the condition of the goods. It might be considered implicit
that in the event that the goods are not considered to be in apparent good order and
condition the reservation must give a brief statement as to why this is considered to
be the case. For example, it may be stated that the container is dented or bags torn or
steel coils rusty. In the alternative, the matter falls to be governed by the applicable
law of the contract of carriage.
In English law the issue was consider in The Agnashenebeli,
45 where it was
accepted that to be valid a reservation had to satisfy certain substantive criteria. On
the facts of the case the master claused a bill of lading relating to the bulk shipment
of a cargo of urea in the following manner—“Cargo discoloured also foreign
materials e.g. plastic, rust, rubber, stone, black particles found in cargo”. Colman J
was of the opinion that there was not any particular linguistic formula for expressing
a qualification in a bill of lading but it was necessary for it to reflect reasonably
closely the apparent good order and condition of the cargo, in particular the extent of
any defective condition which the master reasonably concludes it to possess.
46 The
master had been justified in noting the discolouration but only about 1% of the cargo
was discoloured and the notation made no mention of this. To this extent the master’s
notation was misleading. There had been contamination of the cargo by the presence
of foreign matter but it was very minor and did not exceed a few kilos. A reasonably
observant master would not have seen it fit to note this degree of contamination in
the bill of lading.
47 Accordingly, the carrier was in breach of contract in issuing a bill
of lading with the notation made by the master.
4 Can the Contractual Obligation Be Excluded?
With regard to information in the bill of lading provided by the shipper it is accepted
that the carrier may in prescribed circumstances avoid responsibility for its accuracy
by qualifying the document in an appropriate manner. This is justified, at least in
part, by the fact that the carrier many not know or have the reasonable means of
discovering the true factual position.
48
The immediate question is whether the carrier has a similar right to avoid
responsibility for the good order and condition of the cargo by qualifying the bill
by words such as “condition unknown”. This is a very different kind of obligation
44 Art 40.3.
45 Supra n. 28.
46 Ibid, p. 105.
47 Ibid, p. 114.
48 Hague/Hague Visby Rules Art 3 (Proviso), Hamburg Rules Art 16.1, Rotterdam Rules Art 40.
The Legal Concept and Significance of Clean Shipping Transport Documents
651
accurate information.
44
There is nothing further expressly indicated in the conventions relating to a
statement appertaining to the condition of the goods. It might be considered implicit
that in the event that the goods are not considered to be in apparent good order and
condition the reservation must give a brief statement as to why this is considered to
be the case. For example, it may be stated that the container is dented or bags torn or
steel coils rusty. In the alternative, the matter falls to be governed by the applicable
law of the contract of carriage.
In English law the issue was consider in The Agnashenebeli,
45 where it was
accepted that to be valid a reservation had to satisfy certain substantive criteria. On
the facts of the case the master claused a bill of lading relating to the bulk shipment
of a cargo of urea in the following manner—“Cargo discoloured also foreign
materials e.g. plastic, rust, rubber, stone, black particles found in cargo”. Colman J
was of the opinion that there was not any particular linguistic formula for expressing
a qualification in a bill of lading but it was necessary for it to reflect reasonably
closely the apparent good order and condition of the cargo, in particular the extent of
any defective condition which the master reasonably concludes it to possess.
46 The
master had been justified in noting the discolouration but only about 1% of the cargo
was discoloured and the notation made no mention of this. To this extent the master’s
notation was misleading. There had been contamination of the cargo by the presence
of foreign matter but it was very minor and did not exceed a few kilos. A reasonably
observant master would not have seen it fit to note this degree of contamination in
the bill of lading.
47 Accordingly, the carrier was in breach of contract in issuing a bill
of lading with the notation made by the master.
4 Can the Contractual Obligation Be Excluded?
With regard to information in the bill of lading provided by the shipper it is accepted
that the carrier may in prescribed circumstances avoid responsibility for its accuracy
by qualifying the document in an appropriate manner. This is justified, at least in
part, by the fact that the carrier many not know or have the reasonable means of
discovering the true factual position.
48
The immediate question is whether the carrier has a similar right to avoid
responsibility for the good order and condition of the cargo by qualifying the bill
by words such as “condition unknown”. This is a very different kind of obligation
44 Art 40.3.
45 Supra n. 28.
46 Ibid, p. 105.
47 Ibid, p. 114.
48 Hague/Hague Visby Rules Art 3 (Proviso), Hamburg Rules Art 16.1, Rotterdam Rules Art 40.
The Legal Concept and Significance of Clean Shipping Transport Documents
651