agree a decrease in the price. In this circumstance the carrier may be liable in the tort
of negligence.
70
8 Final Comment
There is much more to the obligation of the carrier, acting through the agency of the
master, tally clerk or some other party, to make an assessment of the order and
condition of the cargo at the time it is received for shipment or actually shipped than
might initially be thought to be the case. The strong tendency in contemporary
transport documents is to assume that all is well with the goods so far as the eye can
see, underwritten by the printed words that the goods have been “received/shipped in
apparent good order and condition”. This creates a de facto presumption that issued
transport documents are clean unless qualified by a notation which detracts from the
printed representation in the bill of lading.
With regard to international trade there is an understandable emphasis on the
necessity to present clean transport documents, which is predominantly a term of
international sale contracts and if not complied with justifies the rejection of the
document and termination of the contract.
71 It is also a requirement under documentary credits.
72 This accounts for the pressure sea carriers may be exposed to by
shippers when they are informed of the intention to clause the bill of lading or other
transport document. For the shipper/seller the consequences may be drastic and the
carrier may be tempted to assist his customer by agreeing to what might appear as an
innocent administrative manipulation of the paperwork. The outcome is often
submission to the persuasive pleading of the shipper in return for a letter of
indemnity.
As the preceding analysis and exposition has indicated, this is far from being an
innocent situation for carriers. To the contrary it is strewn by potentially grave
problems and exposure to a range of legal liabilities and disabilities. Even the letter
of indemnity, so widely used in shipping and international trade to circumvent the
consequences of routine trading difficulties, may be void.
References
Baughen S (2019) Sipping law, 7th edn., chp 3. Routledge, Abingdon
Treitel G, Reynolds F (2017) Carver on bills of lading, 4th edn. Sweet & Maxwell, London
70 Under the principle in Hedley Byrne & Co v Heller & Partners [1964] AC 465 as subsequently
developed and the Misrepresentation Act 1967, section 2(1).
71 This is usually the case with regard to international sale contracts based on INCOTERMS.
72 The Uniforms Customs and Practice for Documentary Credits (UCP 600), Article 27, sets out a
definition of “Clean Transport Document” and also indicates that a bank will only accept a clean
transport document.
656
D. R. Thomas
of negligence.
70
8 Final Comment
There is much more to the obligation of the carrier, acting through the agency of the
master, tally clerk or some other party, to make an assessment of the order and
condition of the cargo at the time it is received for shipment or actually shipped than
might initially be thought to be the case. The strong tendency in contemporary
transport documents is to assume that all is well with the goods so far as the eye can
see, underwritten by the printed words that the goods have been “received/shipped in
apparent good order and condition”. This creates a de facto presumption that issued
transport documents are clean unless qualified by a notation which detracts from the
printed representation in the bill of lading.
With regard to international trade there is an understandable emphasis on the
necessity to present clean transport documents, which is predominantly a term of
international sale contracts and if not complied with justifies the rejection of the
document and termination of the contract.
71 It is also a requirement under documentary credits.
72 This accounts for the pressure sea carriers may be exposed to by
shippers when they are informed of the intention to clause the bill of lading or other
transport document. For the shipper/seller the consequences may be drastic and the
carrier may be tempted to assist his customer by agreeing to what might appear as an
innocent administrative manipulation of the paperwork. The outcome is often
submission to the persuasive pleading of the shipper in return for a letter of
indemnity.
As the preceding analysis and exposition has indicated, this is far from being an
innocent situation for carriers. To the contrary it is strewn by potentially grave
problems and exposure to a range of legal liabilities and disabilities. Even the letter
of indemnity, so widely used in shipping and international trade to circumvent the
consequences of routine trading difficulties, may be void.
References
Baughen S (2019) Sipping law, 7th edn., chp 3. Routledge, Abingdon
Treitel G, Reynolds F (2017) Carver on bills of lading, 4th edn. Sweet & Maxwell, London
70 Under the principle in Hedley Byrne & Co v Heller & Partners [1964] AC 465 as subsequently
developed and the Misrepresentation Act 1967, section 2(1).
71 This is usually the case with regard to international sale contracts based on INCOTERMS.
72 The Uniforms Customs and Practice for Documentary Credits (UCP 600), Article 27, sets out a
definition of “Clean Transport Document” and also indicates that a bank will only accept a clean
transport document.
656
D. R. Thomas