M/S SUSANNE. Bill of Lading Seminar Dr. Ellen Eftestøl-Wilhelmsson

Transcription

1 M/S SUSANNE Bill of Lading Seminar Dr. Ellen Eftestøl-Wilhelmsson

2 How to manage a practical assignment What are you expected to do? Discuss the claims raised by the parties and form a conclusion This means: Find the legal questions and the legal base for their claims Discuss using the relevant legal sources and arguments Conlcude November 16,

3 What are the claims? Normally you will find them in the text: The importer of the cement claimed compensation for the damages from Neptun and from the owner of the vessel, who both denied having any responsibility pointing out the other party as having being responsible November 16,

4 The legal question: Is the cargo owner entitled to claim compensation for damage concerning all three parcels or just one or two? If so, who is responsible? (Only the claim of the cargo owner, no other claims such as for example any recourse claims outside the scope of the assignment) November 16,

5 First step get an overview What has happened? Keep in mind that you are searching a legal base for the claims. What could the legal base be? Contract Tort ( 282) Unjust enrichment November 16,

6 What has happened The Danish ship M/S Susanne on a voyage from Copenhagen to Tromsø Ship owner Neptun exporters Baltime t/c Gencon 1994 v/c November 16, 2010MS Susanne 6

7 M/S Susanne In Copenhagen 3 bills of lading are signed by Hanssen, agent of Neptun v/c Gencon 1994 Neptun Hansen Exporters Agency contract Tramp Bill of lading NMC 325 November 16, 2010MS Susanne 7

8 M/S Susanne On delivery at the port of Tromsø: Neptun Agency Hansen Exporters t/v Tramp Bill of Lading Sales agreement Ship Owner Damage Importers November 16, 2010MS Susanne 8

9 What is the legal base for the claim? The importer of the cement claimed compensation for the damages from Neptun and The owner of the vessel What could be the legal bases for the claim? Contract bill of lading or charterparty

10 Does the b/l include a reference to the Gencon 1994? NMC and 325: Provisions of the chartering agreement which are not included in the b/l can not be invoked unless the b/l includes a reference to them. Includes a reference to them General reference not enough. The bill of lading and the NMC are applicable. Charter party only if not in conflict with the NMC. November 16,

11 Is the b/l agreed between Neptun and the sender? Gencon 1994 is regulating the relationship between Neptun and the exporter (charterers) Gencon clause 10: Bills of lading shall be signed by the Owners agent provided Written authority to the agent With copy to charterers Not fulfilled Conclusion: The b/l is not agreed between Neoptun and the senders November 16,

12 Can the bill of lading still be valid in relation to the holder? The holder is the importer. In good faith A question of authorization NMC 338:The voyage carrier shall issue a shipped bill of lading on request. Issues by: the voyage carrier or the master or the person otherwise authorized Is Hanssen authorized? November 16,

13 Authority About the intermediary's power to bind the principal Common law: The agent's power is derived from the internal relationship. The power to bind is tied to the mandate Nordic law: The message to a third person is the basis of the agent's contracting powers If the agent exceeds the authority given him in the internal relationship, the principal still becomes bound by virtue of the message to the third party, if the third party is in good faith November 16,

14 Does Hansen have powers to issue a b/l on Neptuns behalf? Not regulated in the NMC, but in the Contracts Act 31 May 1918, nr. 4, chp. 2 Question: what did the importer have reason to believe? Neptuns standard documents Agent for 5 years Normal procedure Risk on Neptuns side Conclusion: Hansen have powers to bind Neptun November 16,

15 What about the ship owner? NMC 286:The sub-carrier is liable for such part of the carriage as he or she performs, pursuant to the same rules as the carrier Pursuant to the same rules Liable when carrier is liable The good solution for description liability? No legal base to claim the sub-carrier for description liability November 16,

16 A digression Assume the b/l was signed by the master: NMC 137: The masters position of authority will bind the ship owner NMC 295: A b/l signed by the master shall be deemed to have been signed on behalf of the carrier (Neptun) November 16,

17 The damages Bill of lading I and II (misdescription) Bill of lading III (transport damage)

18 The liability Neptun/Contractual carrier: Transport liability 274 Liable for the sub carrier 285 Bill of lading 299: The carrier has loaded the goods as stated in the bill of lading The ship owner/sub carrier. 274 flg jfr. 286 liable for such a part of the carriage as he or she performs, pursuant to the same rules as the carrier. November 16,

19 Bill of Iading I Breach of sales contract. Invisible for others than experts In apparent good order and condition, weight etc unknown. The cargo is in accordance with the description. No damage according to the NMC No damage on the carrieres November 16,

20 Bill of lading II 5 bags torn 15 out of 1000 bags delivered empty This means that 10 bags is damaged during transport. BUT: 10 bags was delivered empty by the sender, and overseen by the master during inspection Section 298 a duty to inspect or make a reservation What about the 5 bags torn? November 16,

21 Bill of lading II 5 bags torn/empty no liability Neptun: 10 bags empty: Section 299 third paragraph Implied transport liability/description liability Not possible to proof himself innocent Neptun is liable as contractual carrier The ship owner: not applicable, the damage took place before the carriage stared Not liable November 16,

22 Bill of lading III A few wet bags The cement in 500 bag totally damaged because of water Typical transport damage Both Neptun and the Ship owner might be liable: Neptun as contractual carrier with liability for sub carrier, 285 The ship owner as sub carrier, according to 286 November 16,

23 The main rule on liability; NMC 275 NMC 275: Negligence with a reversed burden of proof NMC 276: Exemptions 1) Fault or neglect in the navigation of the ship or 2) Fire MC 276, second paragraph: not if initial unseaworthiness NMC 275 applies both are liable But, is 276 nr. 1applicable? November 16,

24 Is 276 nr 1 applicable? Not liable if fault or neglect in the navigation or management of the ship Navigation of the vessel Steering and manoeuvring, response to signals etc. Management of the ship The ship's condition, manning and equipment Not management of the cargo Borderline cases Was the act or omission primarily in the interest of the cargo or the ship? ND NSC Sunny Lady November 16,