[2003]Vol. 1
QUEEN’S BENCHDIVISION(ADMIRALTY COURT) May 31, 2002
Bill of lading - Clean bill- Title to sue - Berthing delay - Cargo of urea loaded - Mastersigned claused bill - Whether state and condition of cargojustified claused bill - Whether claimants had title to sue -Whether master justified in refusing to take vessel intodischarging berth - Carriage of Goods by Sea Act, 1992 s.2.
英國海事法院案例，法院判定船長有責(zé)任判定裝運(yùn)貨物的表面狀況，判定不要求船長達(dá)到專家的標(biāo)準(zhǔn)，但是應(yīng)當(dāng)是理性謹(jǐn)慎的船長的標(biāo)準(zhǔn)，對于船長認(rèn)定的表面不良好對的貨物其有權(quán)在提單上進(jìn)行批注。合同不要求船長的批注絕對準(zhǔn)確，但是船長應(yīng)當(dāng)達(dá)到公平公正合理謹(jǐn)慎的標(biāo)準(zhǔn)。本案中貨物受損的情況和比例很輕微，但是船長批注沒有注明貨物受損的比例，只是簡單說明貨物有受損的描述過于夸大，沒有到達(dá)合理謹(jǐn)慎的標(biāo)準(zhǔn)，因此船東違約。本提單由于原貨物合同取消并重新簽訂，發(fā)貨人沒有將原提單轉(zhuǎn)讓給最終買家，發(fā)貨人仍擁有訴權(quán)。港口指示船舶靠泊的指令沒有明顯錯誤，不會造成船舶擱淺，船東應(yīng)當(dāng)承擔(dān)船長拒絕靠泊的責(zé)任。
By a charter-party in theNYPE form dated Jan. 13, 1995, the vessel David Agmashenebeli ownedby Georgian Shipping Co. of Valetta was let to Meezan Shipping andTrading Inc. of Toronto for a period of a maximum of 11 months anda minimum of nine months in charterers’ option. The master was toprosecute the voyage with the utmost despatch and the master was tosign bills of lading as presented in conformity with Mate’s orTally Clark’s receipts.
On Apr. 4, 1995 TransmarineLtd. of Columbus, Ohio sold to Agrosin Pte. Ltd. of Singapore35,000 tonnes of urea in bulk at U.S.$180 per tonne f.o.b. KotkaFinland. The goods specification was: "white colour, free flowing,free from contamination, prilled form, treated against caking, freefrom harmful substances, production of Novgorod Acron, Russia whois supplier."
On Apr. 10, 1995 Agrosinsold to Grand Prestige Enterprises of Hong Kong 35,000 tonnes ofurea in bulk at U.S.$238.75 per tonne c.&f. free out CQD onesafe berth, one safe port South China for delivery during May,1995. Payment was by letter of credit and among the documents to bepresented were a full set of clean on board bills oflading.
On Apr. 19, 1995, BaffShipping of Riga who had chartered the vessel from Meezan enteredinto a voyage charter with Agrosin. The vessel was to load 35,000tonnes 10 per cent. more or less in owners’ option of bulk prilledurea at 1/2 safe berths Kotka and to discharge 1/2 safe berths, onesafe port China.
The vessel arrived at Kotkaand gave notice of readiness to load at 9 30 a.m. on Apr. 24, 1995.The vessel had previously carried a coal cargo and after the holdswere washed, the holds were accepted as fit forloading.
Loading commenced at 06 30on Apr. 27, 1995. Within three hours of the commencement of loadingthe master sent messages to all parties stating that the cargocontained rust, plastics and other contaminants and was of a dirtycolour. The master drew up a letter of protest dated Apr. 28,1995.
Loading was completed at 1820 on May 4, 1995. The master instructed shipowners’ agents andthey issued a mate’s receipt with the wording: "Cargo discolouredalso foreign materials e.g. plastic, rust,
rubber, stone, blackparticles found in cargo". The mate’s receipt identified theshippers as Agrosin and the consignees as "to the order ofAgrosin".
Meanwhile on Apr. 20, 1995Grand Prestige Enterprises sold the urea to Guangxi PublicationsImport and Export Co. Ltd., payment to be by documentary credit andpresentation of clean bills of lading. The master refused to issuea clean mate’s receipt.
The vessel arrived at thedischarging port of Beihai but there was a delay in entering theport as the master considered that the available draft at the portrendered it unsafe.
The issues for decisionwere: (1) whether the law imposed on shipowners or other carriers aduty in respect of the master’s clausing of bills of lading; (2)whether the actual apparent order and condition of the goods at thetime of loading was such as to justify the description of the goodswhich the master inserted in the bills of lading; (3) whether themaster’s clausing of the bills of lading amounted to a breach bythe shipowners of the contract of carriage; (4) and if so whetherthe loss was caused by that breach; (5) Title to sue. The defendantshipowners contended that the claimants had no title to sue; theultimate receivers or their buyers had title to sue; (6) Theberthing claim. The claimants contended that the masterunjustifiably declined to take the vessel into its dischargingberth at Beihai, China at the time when the harbour master hadindicated that this should be done.
-Held, by Q.B. (Adm. Ct.)(Colman, J.), that (1) the duty requires that the master shouldmake up his mind whether in all the circumstances the cargo, in sofar as he could see it in the course and circumstances of loading,appeared to satisfy the description of its apparent order andconditions in the bills of lading tendered for signature; he willbe entitled to form his own opinion from his own observations andthe failure to ask for expert advice was unlikely to be a matter ofcriticism; for this purpose the law did not cast on the master therole of an expert surveyor and he need not possess any greaterknowledge or experience of the cargo in question than any otherreasonably careful master; what he was required to do was toexercise his own judgment on the appearance of the cargo loaded;and if he took the view that the cargo was not or not all inapparent good order and condition he was entitled to qualify thebill of lading (see p. 105, col. 1);
(2) the shipowners’ duty wasto issue a bill of lading which recorded the apparent order andcondition of the goods according to the reasonable assessment ofthe master; there was not any contractual guarantee of absoluteaccuracy as to order and condition of the cargo or its apparentorder and condition; and there was no basis for the implication ofany such term; the shipper was taken to know the actual apparentorder and condition of his own cargo (see p. 105, col.2);
(3) the test that it wasfair, just and reasonable to impose a duty of care in all thecircumstances was not satisfied (see p. 106, col.1);
(4) the urea included priorto loading, foreign matter consisting of among other things, soil,dirt, broken glass, rust, oil and rubbish; it also included darkparticles which dropped on to it from warehouse structures; theoverall amount of these contaminants did not exceed a "few kilos"and was of a very minor nature but it was difficult to quantify asa proportion of the whole cargo; however on the evidence thepre-shipment contaminants amounted to 0.01 per cent. (3 tonnes) ofthe cargo overall (see p. 113, cols.1 and 2);
(5) on the whole of theevidence the total overall yellow, beige, pink and greydiscolouration would be about 1 per cent. (see p. 114, col.1);
(6) although the master wasentitled to clause the mate’s receipt to refer to the fact that asmall proportion of the cargo was discoloured, he was not entitledto use words which conveyed the meaning that the whole or asubstantial part of the cargo was thus affected; nor was heentitled to clause the mate’s receipt or bills of lading to suggestthat the presence of a miniscule quantity of contaminants renderedthe cargo otherwise than in good order and condition; thedefendants failed to issue a bill of lading which contained astatement as to the apparent good order and condition of the ureawhich a reasonably observant master could properly have made; thedefendants were in breach of their contractual duty (see p. 114,col. 2; p. 115, col. 1);
(7) to qualify thedescription of apparent good order and condition simply bydescribing the urea as discoloured without qualification as to theextremely small extent of the apparent discolouration was to insertan untrue statement as to apparent order and condition which noreasonable master would have inserted (see p. 115, col.1);
(8) as to title to sue, theeffect of the agreement entered into by Agrosin, Baff, Meezan andthe shipowners on about June 14, 1995 was that the contract ofaffreightment evidenced by the bills of lading was to be deemed tobe one made between Agrosin as shipper and the shipowner ascarrier; there was an agreement between Agrosin as shipper and thedefendants as shipowners for the carriage of the cargo from Kotkato Beihai (see p. 116, col. 2);
(9) the agreement enteredinto about June 14, 1995 which provided for the shipowners to issueto Agrosin the claused bills of lading and for Agrosin then topresent them back to the shipowners’ representative was a device tobring about both the issue of the bills of lading to Agrosin andtheir subsequent presentation to the ship in order to obtaindelivery of the cargo to Agrosin, and the writing of "accomplished"on the bill reflected an agreement that it would not be open toAgrosin to transfer them as negotiable documents of title asagainst the ship to any third party; their function in that respectwas agreed to have been exhausted (see p. 117, col.1);
(10) by the time the billsof lading were passed to the bank possession of those bills nolonger gave to a transferee any right as against the carrier topossession of the goods to which those bills related; therefore noright of suit under the contract passed to the bank (see p. 117,col. 2);
(11) the provision in s.2(2)(a) of the Carriage of Goods by Sea Act, 1992, was inserted forthe purpose of permitting the transference of rights under thecontract of carriage in those cases where the bills of lading werenot transferred to the ultimate buyer until
after delivery by the shipat which point the bills would cease to be documents of title asagainst the ship (see p. 118 col. 2);
(12) the agreement made onJuly 8, 1995 was an agreement by Agrosin to sell to Guangxi thecargo in respect of which the documents had already been properlyrejected by the buyer’s bank and by Guangxi and therefore by GrandPrestige; the July agreement thus replaced the earlier agreementand the terms were different in important respects from the termsoriginally agreed; the parties had agreed to a new contract; s.2(2)(a) did not apply and Guangxi acquired no rights of suitagainst the shipowners; Agrosin was the only party entitled to sue(see p. 118, col. 2; p. 119, col. 1);
(13) the claimants had notestablished that the master’s failure to comply with art. III, r. 3of the Hague Rules had caused them any loss (see p. 119, col.2);
(14) as to the claim fordelay in berthing on the facts and the evidence the harbourauthority’s request to berth was not so obviously wrong that it wasvirtually certain to the master that the vessel would ground; theduty under the contract of carriage was to proceed in accordancewith the harbour authority’s orders to the designated berth; hecould not have concluded that those instructions would lead to thevessel grounding; his failure so to proceed was a breach of thatduty for which the shipowners were liable (see p. 121, col. 2; p.122, cols.1 and 2).
