which is imposed on the carrier and demands the exercise of a judgment. It is to
externally assess cargo shipped or received for shipment and, as previously
observed, is of a “low order”.
49 Beyond the question of policy, it is difficult to
contemplate any reasonable commercial and practical circumstance when the carrier
acting through the agency of the master or other party would not be able to perform
this responsibility. The duty calls not for the confirmation of a factual statement
provided by the shipper, but a judgment by the carrier.
It is noteworthy that the international conventions do not expressly recognise
such a right. Whereas it is acknowledged that carriers may qualify the bill of lading
and avoid responsibility for factual information provided by the shipper,
50 this
concession is not expressly extended to the duty to declare the order and condition
of the cargo. This might be viewed as evidence which implies that such a qualification is void as a provision which lessens the liability of the carrier otherwise than as
permitted by the convention.
51
The position under the common law does not appear to have been expressly
decided but there have been tangential and inconclusive determinations.
52 But this
question is now of little significance for rarely would a contract of carriage by sea not
be governed by the terms of an international convention or national law giving effect
to the terms of such a convention.
5 Can the Parties Contractually Define When Goods Are
to Be Regarded as in “Apparent Good Order
and Condition”?
The question in issue is whether parties may agree or indicate that goods shipped are
to be acknowledged as being in apparent good order and condition notwithstanding
that they may be damaged or otherwise defective.
In a general sense this is always possible because, as previously observed, the
representation as to the order and condition of the cargo relates to the description of
the cargo in the bill of lading. If the description includes damage and/or other
deficiencies the master/agent may acknowledge the apparent good order and condition of the cargo notwithstanding visible damage and/or deficiencies because what is
being shipped corresponds with the description in the bill.
53
The more particular issue is whether the same result can be achieved by a standard
contractual provision. A significant example is the so-called “Retla” clause which
49 Supra, under the title, ‘The nature and scope of the carrier’s duty’.
50 Supra n. 48.
51 Hague/Hague Visby Rules Art 3.8, Hamburg Rules Art 23.1, Rotterdam Rules Art 79.
52 The Peter der Grosse The Sharp (1875) 1 PD 414; [1935] P.134 Canada & Dominion Sugar Co
Ltd v Canadian National (West Indies) SS Co [1947] A.C. 46.
53 Supra ns 28 & 29.
652
D. R. Thomas
externally assess cargo shipped or received for shipment and, as previously
observed, is of a “low order”.
49 Beyond the question of policy, it is difficult to
contemplate any reasonable commercial and practical circumstance when the carrier
acting through the agency of the master or other party would not be able to perform
this responsibility. The duty calls not for the confirmation of a factual statement
provided by the shipper, but a judgment by the carrier.
It is noteworthy that the international conventions do not expressly recognise
such a right. Whereas it is acknowledged that carriers may qualify the bill of lading
and avoid responsibility for factual information provided by the shipper,
50 this
concession is not expressly extended to the duty to declare the order and condition
of the cargo. This might be viewed as evidence which implies that such a qualification is void as a provision which lessens the liability of the carrier otherwise than as
permitted by the convention.
51
The position under the common law does not appear to have been expressly
decided but there have been tangential and inconclusive determinations.
52 But this
question is now of little significance for rarely would a contract of carriage by sea not
be governed by the terms of an international convention or national law giving effect
to the terms of such a convention.
5 Can the Parties Contractually Define When Goods Are
to Be Regarded as in “Apparent Good Order
and Condition”?
The question in issue is whether parties may agree or indicate that goods shipped are
to be acknowledged as being in apparent good order and condition notwithstanding
that they may be damaged or otherwise defective.
In a general sense this is always possible because, as previously observed, the
representation as to the order and condition of the cargo relates to the description of
the cargo in the bill of lading. If the description includes damage and/or other
deficiencies the master/agent may acknowledge the apparent good order and condition of the cargo notwithstanding visible damage and/or deficiencies because what is
being shipped corresponds with the description in the bill.
53
The more particular issue is whether the same result can be achieved by a standard
contractual provision. A significant example is the so-called “Retla” clause which
49 Supra, under the title, ‘The nature and scope of the carrier’s duty’.
50 Supra n. 48.
51 Hague/Hague Visby Rules Art 3.8, Hamburg Rules Art 23.1, Rotterdam Rules Art 79.
52 The Peter der Grosse The Sharp (1875) 1 PD 414; [1935] P.134 Canada & Dominion Sugar Co
Ltd v Canadian National (West Indies) SS Co [1947] A.C. 46.
53 Supra ns 28 & 29.
652
D. R. Thomas