EnglandThe Owners of the cargo lately laden on board the ship "David Agmashenebeli" v. The Owners of the ship "David Agmashenebeli"

(High Court of Justice - Q.B.D. (Admiralty Court)) [2003] 1 Lloyd's Rep. 92.

On 10 April 1995 Agrosin Pte Ltd. of Singapore sold to Grand Prestige Enterprises of Hong Kong 35,000 metric tons urea in bulk C&F Free Out CQD one safe berth one safe port South China for delivery during May 1995 and commenced negotiations for the charter of the m/v

DavidAgmashenebeli

from Baff Shipping, Riga. The latter company on 19 April 1995 entered into a voyage charter under which it chartered the vessel from Meezan Shipping and Trading Inc. of Toronto who had time chartered it from its owners Georgian Shipping Company of Valletta, Malta. Clause 45 of the charter party between Meezan and Baff provided:

"Under supervision of independent surveyor together with Master's/Officers' assistance no damaged cargo to be loaded into the holds. If such fact will take place Master has the right to stop loading but Charterers and Shippers to be immediately informed to arrange removing of any contaminations for Charterers' expenses/time.

Quantity/quality of cargo as determined by an International Independent Surveyor (SGS or another neutral international organisation) together with Master to be final and binding for both parties. Owners to be responsible for quantity of cargo taken on board."

On the same day Agrosin sub-chartered the vessel from Baff on substantially the same terms.

On the following day, 20 April 1995, Meezan instructed the vessel's master that the vessel was to load bulk urea under a voyage charter between Meezan and Baff for carriage from Kotka to China. The vessel arrived at Kotka and gave notice of readiness to load at 09.30 on 24 April 1995. It had 6 holds and had previously carried a coal cargo and a grain cargo before that. After a dispute on the suitability of the holds on 26 April the original supplier of the urea informed their local agents that with the assent of Agrosin it permitted the commencement of loading. But within three hours of the commencement of loading the master sent a message to all parties stating that the cargo contained rust, plastics and other contaminants and was of a dirty colour. Upon completion of loading the master claused the mate receipt with the following statement: "cargo discoloured also foreign materials, eg. plastic, rust, rubber, stone, black particles found in cargo". Notwithstanding a dispute as to whether the bills of lading should be similarly claused, the master did so.

After a dispute on payment of freight had been settled, the cargo was discharged and the amount of contamination was found to be very small. However having the ultimate buyer's bank refused to accept the claused bills of lading, and following a discussion between the parties a discounted price was agreed.

Held, by the Queen's Bench Division (Admiralty Court), that:

(1) The duty of the carrier under the Hague-Visby Rules is to issue a bill of lading which records the apparent order and condition of the goods according to the reasonable assessment of the master. [That is not any contractual guarantee of absolute accuracy as to the order and condition of the cargo or it apparent order and condition].(2) There is, however, a breach of that duty if the master, even if entitled to clause the bill of lading to refer the fact that a small proportion of the cargo is not in apparent good order and condition, qualifies the bill of lading in a manner that conveys the meaning that the whole or a substantial part of the cargo is not in good order and condition.

GermanyOberlandesgericht Hamburg (Court of Appeal), 9 November 2000 (Transportrecht 2001, page 92)*A lot of wheat was carried from Tianjin to Rotterdam. The carrier issued a bill of lading providing for the application of German law stamped with "said to weigh" and containing a "free in liner out, loaded and stowed free in at owners' nominated berth" clause. The consignee claimed damages from the carrier under the bill of lading because the carrier had delivered less wheat than described in the bill of lading. The issue to be decided by the court was whether the carrier could rely on the stipulations contained in the bill of lading so as not to be responsible for the difference in weight.

Held, by Oberlandesgericht Hamburg (Court of Appeal), that:[1] The carrier cannot rely on the meaning of the clause "said to weigh" for an exclusion of liability because it follows already from Article 3 para. 3 (b) Hague-Visby Rules or para. 645 subs. 1 German Commercial Code that the weight stated in the bill of lading depends on the information provided by the shipper.[2] It does not follow from the clause "free in liner out, loaded and stowed free in at owners' nominated berth" that the carrier has not had reasonable means of checking the weight of the cargo pursuant to article 3 para. 3 Hague-Visby Rules or para. 645 subs. 2 fig. 2 German Commercial Code. The carrier should in fact state that it had no reasonable means of checking the cargo's weight so as to exclude its liability.

* By the courtesy of Dr. Cristoph Horbach, Lebuhn & Puchta Rechtsanwälte,
Vorsetzen 35, D-20459Hamburg - cristoph.horbach@lebuhn.dehttp://www.comitemaritime.org/jurisp/ju_billading.html