takes its name from the US case in which its effectiveness was tested and accepted.
54
The bill of lading issued in respect of the shipment of a consignment of irrigation
pipes and galvanized and ungalvanized plumbing pipes included the following
provision:
. . . the term ‘apparent good order and condition’ when used in this bill of lading with
reference to iron, steel or metal products does not mean that the goods, when received, were
free of visible rust or moisture. If the shipper so requests, a substitute bill of lading will be
issued omitting the above definition and setting forth any notations as to rust or moisture
which may appear on the mates’ or tally clerks’ receipts.
The court attributed to the clause its literal meaning. The carrier made no
representation that the metal products shipped were free from rust or moisture, and
more particularly that all surface rust was excluded from the representation as to
apparent good order and condition.
The clause came before an English court in The Saga Explorer
55 which accepted
the validity of the clause but analysed it differently. As a question of construction the
clause was held not to apply to all rust, only to rust that could be consider as minor
and superficial, the kind of rust associated with steel cargoes generally. Further, the
effect of the clause was not to counter the apparent good order and condition
representation in the bill of lading but to qualify it. It indicated that there might be
the appearance of rust and moisture of a type which could be expected to appear on
any cargo of steel, the result of superficial oxidation caused by atmospheric conditions. On the facts of the case the rusting of the cargo of steel pipes was more
significant than the toleration permitted by the clause and the bill of lading should
have been qualified accordingly.
The decision in The Saga Explorer dos not provide a conclusive answer to the
question initially posed or to the validity of Retla and similar clauses in transport
documents. Where any of the international conventions apply, or form the basis of
national law, it is at least arguable that their effect is to lessen the carrier’s liability
and that they are consequently void.
56 On the other hand, they may serve the
interests of commercial practice by giving certainty to the otherwise ambiguous
words “apparent good order and condition”.
6 The Evidentiary Significance of Documentary
Representations
The core significance of a clean bill of lading is evidentiary. When a clean shipped
on board bill of lading has been issued it provides evidence of the condition of the
goods at the time of loading. If at the discharge port the goods are discovered to be
54 Tokyo Marine & Fire Ins Co Ltd v Retla SS Co [1970] 2 Lloyd’s Rep 91 (9th Cir).
55 [2013] 1 Lloyd’s Rep 401.
56 Supra n. 51.
The Legal Concept and Significance of Clean Shipping Transport Documents
653
54
The bill of lading issued in respect of the shipment of a consignment of irrigation
pipes and galvanized and ungalvanized plumbing pipes included the following
provision:
. . . the term ‘apparent good order and condition’ when used in this bill of lading with
reference to iron, steel or metal products does not mean that the goods, when received, were
free of visible rust or moisture. If the shipper so requests, a substitute bill of lading will be
issued omitting the above definition and setting forth any notations as to rust or moisture
which may appear on the mates’ or tally clerks’ receipts.
The court attributed to the clause its literal meaning. The carrier made no
representation that the metal products shipped were free from rust or moisture, and
more particularly that all surface rust was excluded from the representation as to
apparent good order and condition.
The clause came before an English court in The Saga Explorer
55 which accepted
the validity of the clause but analysed it differently. As a question of construction the
clause was held not to apply to all rust, only to rust that could be consider as minor
and superficial, the kind of rust associated with steel cargoes generally. Further, the
effect of the clause was not to counter the apparent good order and condition
representation in the bill of lading but to qualify it. It indicated that there might be
the appearance of rust and moisture of a type which could be expected to appear on
any cargo of steel, the result of superficial oxidation caused by atmospheric conditions. On the facts of the case the rusting of the cargo of steel pipes was more
significant than the toleration permitted by the clause and the bill of lading should
have been qualified accordingly.
The decision in The Saga Explorer dos not provide a conclusive answer to the
question initially posed or to the validity of Retla and similar clauses in transport
documents. Where any of the international conventions apply, or form the basis of
national law, it is at least arguable that their effect is to lessen the carrier’s liability
and that they are consequently void.
56 On the other hand, they may serve the
interests of commercial practice by giving certainty to the otherwise ambiguous
words “apparent good order and condition”.
6 The Evidentiary Significance of Documentary
Representations
The core significance of a clean bill of lading is evidentiary. When a clean shipped
on board bill of lading has been issued it provides evidence of the condition of the
goods at the time of loading. If at the discharge port the goods are discovered to be
54 Tokyo Marine & Fire Ins Co Ltd v Retla SS Co [1970] 2 Lloyd’s Rep 91 (9th Cir).
55 [2013] 1 Lloyd’s Rep 401.
56 Supra n. 51.
The Legal Concept and Significance of Clean Shipping Transport Documents
653