CONTRACTS OF SALE, CONTRACTS OF CARRIAGE AND BILLS OF LADING

Transcription

1 CONTRACTS OF SALE, CONTRACTS OF CARRIAGE AND BILLS OF LADING

2 WE WILL LOOK AT Contracts of sale, documentary credit and contracts of carriage Bills of lading Letters of indemnity

3 CONTRACTS OF SALE/ DOCUMENTARY CREDIT/CONTRACTS OF CARRIAGE 3

4 CONTRACT OF SALE Buyer Seller

5 CONTRACT OF SALE Buyer CONTRACT OF SALE Seller FOB Buyer Incoterms CIF Seller 5

6 INCOTERMS Buyer Originated 1936 INCOTERMS terms in use

7 CIF Seller Nominates ship and load port Places cargo on board and obtains b/l Insures cargo Pays freight Informs buyer of discharge port and ship Buyer Collects the cargo from the discharge port nominated by the seller

8 FOB Buyer Nominates ship and load port Informs seller of load port and ship Insures cargo Pays freight Seller Delivers the cargo on board ship at the load port nominated by the seller Obtains bill of lading?

9 DOCUMENTARY CREDIT Buyer Seller FOB Buyer Method of performance Incoterms CIF Seller Letter of credit Method of finance Documentary credit UCP 600 Documents to produce

10 CONTRACTS OF CARRIAGE Contracts of Carriage Bill of lading & cargo conventions Hague or Hague-Visby Rules Hamburg Rules Rotterdam Rules Charterparty

11 CONTRACTS OF CARRIAGE Buyer FOB Buyer Method of performance Incoterms Seller CIF Seller Letter of credit Method of finance Documentary credit UCP 600 Documents to produce Shipper (FOB) Method of transport Contract of Carriage Carrier Shipper (CIF)

12 INTERNATIONAL TRADE TRANSACTION Buyer Seller Issuing Bank 8 Confirming Bank Documents Bill of Lading Letter of Credit Credit Application Goods

13 BILLS OF LADING COMMERCIAL FUNCTION

14 BILLS OF LADING COMMERCIAL FUNCTION Why are they commercially important? Ship Owner Getting paid Seller Proof that goods in apparent good order and condition on board Clean bill allows seller to get paid Buyer Clean bill tells buyer (and his bank) that he is going to get what he contracted to buy and that goods are on their way Bill allows buyer to collect goods from the ship

15 BILLS OF LADING COMMERCIAL FUNCTION and to achieve all of this the bill of lading is performing three distinct legal functions

16 BILLS OF LADING LEGAL FUNCTIONS 3 functions of a bill of lading Document of title to cargo Evidence of or the actual contract of carriage Evidence of receipt of cargo

17 BILLS OF LADING LEGAL FUNCTIONS Document of title to cargo Goods should only be released against production of one of the original bills of lading Golden Rule 1 Remember that someone somewhere has the bill

18 BILLS OF LADING LEGAL FUNCTIONS Evidence of or the actual contract of carriage In the hands of the shipper or charterer the bill of lading is evidence of the contract of carriage In the hands of a third party the bill of lading can be considered as the actual contract of carriage Golden Rule 2 Keep your promise

19 BILLS OF LADING LEGAL FUNCTIONS Evidence of receipt of cargo Evidence as to the nature, quantity and apparent order and condition of the cargo on shipment Prima facie evidence as between the shipowner and the shipper or charterer Conclusive evidence as between the shipowner and a third party Golden Rule 3 The bill of lading must tell the truth

20 BILLS OF LADING LEGAL FUNCTIONS Each of these Golden Rules is important Each underpins P&I cover

21 BILLS OF LADING LEGAL FUNCTIONS Provisos to P&I cargo risks covered Contract of carriage should be subject to Hague /Hague-Visby Rules Cargo should only be delivered at the port named in the bills of lading Cargo should only be delivered upon production of the original bills of lading Bills of lading should not be antedated or post-dated Bills of lading should contain a correct description of the cargo, quantity and condition Rule 2 Rule 1 Rule 3 Rule 3

22 BILLS OF LADING LEGAL FUNCTIONS The first two Golden Rules can be dealt with commercially if you wish by taking LOIs. Examples: Delivery of cargo without production of bills of lading Delivery at a different destination (Your decision but Remember it has P&I implications) that someone Golden Rule 1 somewhere has the bill Golden Rule 2 Keep your promise

23 BILLS OF LADING LEGAL FUNCTIONS but the hardest of these Golden Rules is the last Golden Rule 3 The bill of lading must tell the truth because that is where the stakes are at their highest

24 BILLS OF LADING RECEIPT Not telling the truth can give rise to liability of the shipowner. Deceit Tort of deceit gives rise to civil liability and damages Fraud Criminal counterpart of deceit gives rise to criminal liability

25 BILLS OF LADING RECEIPT Fraud is proved when it is shown that a false representation has been made knowingly, or without belief in its truth, or recklessly careless whether it is true or false. Derry v Peek (1889)

26 BILLS OF LADING RECEIPT Apparent order and condition of the goods If the master thinks the cargo is not in good order and condition then he should clause the bills of lading

27 BILLS OF LADING RECEIPT Clausing bills objective standard [Master s] view must be consistent with that which could properly be held by a reasonably observant master Not an expert surveyor Can seek expert advice but unlikely to be criticised for not doing so Entitled to form his own opinion from his own observations David Agmashenebeli (QBD May 2002)

28 BILLS OF LADING RECEIPT Apparent order and condition of the goods Clausing bills words to use The words used should have a range of meaning which reflect reasonably closely the actual apparent order and condition of the cargo and the extent of any defective condition which he, as a reasonable observant master, considered it to have David Agmashenebeli (QBD May 2002)

29 BILLS OF LADING RECEIPT Apparent order and condition of the goods Clausing bills words to use For example - Damaged is not sufficient Buyer should know what he is getting

30 BILLS OF LADING RECEIPT Similar issues relate to quantity Masters obligations Issue to the shipper a bill of lading showing: the marks, quantity or weight of the goods as furnished in writing by the shipper the apparent order and condition of the goods Hague Visby Rules Article 3, Rule 3

31 BILLS OF LADING RECEIPT Disputed weight / quantity The Master cannot be made to sign for a figure he does not believe in Hague Visby Rules Article 3, Rule 3

32 BILLS OF LADING RECEIPT Disputed weight / quantity What should master do? If he believes the figures Sign it If he does not believe the figures Do NOT sign it If in doubt Consult the P&I Club

33 BILL OF LADING PROBLEMS Look at the golden rules which one applies? Golden Rule 1 Remember that someone somewhere has the bill Golden Rule 2 Keep your promise Golden Rule 3 The bill of lading must tell the truth

34 LETTERS OF INDEMNITY 35

35 LETTERS OF INDEMNITY - WHY ARE THEY OFFERED? The law, insurance and commercial practice The law and International conventions (Hague Visby Rules) and P&I Club Rules set standards and law that applies to carriage of goods Applies to bills of lading Commercial practice may put the carrier and traders in conflict with each other and with these Rules

36 LETTERS OF INDEMNITY - WHY ARE THEY OFFERED? Carrier Issue a bill of lading Accurate Compliable Seller Satisfies sale contract Avoids delays

37 LETTERS OF INDEMNITY - WHY ARE THEY OFFERED? What is a Letter of Indemnity? A Letter of Indemnity is essentially a promise that: if you do what I ask, I will make sure that you do not suffer any loss

38 LETTERS OF INDEMNITY - WHY ARE THEY OFFERED? Who benefits from a Letter of Indemnity?

39 LETTERS OF INDEMNITY Accepting a letter of indemnity two more golden rules Golden Rule 1 Do you trust the issuer? Golden Rule 2 Is the risk acceptable?

40 LETTERS OF INDEMNITY - WHY ARE THEY OFFERED? In exchange for agreeing to Deliver without production of the bills of lading Change of destination Split bills of lading Switch bills of lading Replace lost bills of lading Co-mingle, blend or mix cargo Add dye to liquid cargoes Mis-describing information on bills of lading

41 LETTERS OF INDEMNITY Owners are often asked to do things that may breach the provisos of their P&I cover in return for a LOI: Variety of circumstances not all are legitimate Commercial decision for owners Carry out a risk analysis LOI only as good as authority / creditworthiness of its issuer LOI may not be enforceable Careful consideration / drafting required Look at alternative options

42 LETTERS OF INDEMNITY - CHECKLIST Insurance P&I Clubs can NOT approve or recommend of the acceptance of a LOI Acceptance of a LOI is a commercial decision for owners Claims arising as a direct result of accepting a LOI are likely to be subject to Club director s discretion LOIs normally replace P&I cover

43 SUMMARY Commercial function Legal function the Golden Rules Particular problems with description P&I cover Where letters of indemnity may or may not help Checklist when using them

44 THANK YOU 45

45 CARGO - SCOPE OF COVER

46 INTRODUCTION Shipowner has an obligation to: Care for the cargo in his custody Deliver the cargo in the same good order and condition as it was when loaded

47 INTRODUCTION If the cargo is lost or damaged while in the shipowners care: The shipowner may have to compensate the cargo owner The Shipowner has insurance cover for such liabilities with his P&I Club P&I is NOT a cargo insurer

48 INTRODUCTION If the cargo is lost or damaged while in the shipowners care: The cargo owner may present his claim to the cargo underwriters The cargo underwriters may seek to recover the claim from the shipowner The cargo owner may present his claim to the ship owner

49 INTRODUCTION P&I covers: Damage or loss to cargo arising from shipowners liabilities Additional costs and expenses for minimising claim Additional costs and expenses for dealing with claim

50 INTRODUCTION Cargo risks covered Rule 19(17) Provisos to cargo risks covered Rule 19(17) General Average Rule 19(18)

51 CARGO RISKS COVERED

52 CARGO RISKS COVERED Cargo on entered ship: Liabilities, costs and expenses for cargo Intended to be, or being, or having been Carried in an entered ship Preamble to Rule 19(17)

53 CARGO RISKS COVERED Loss shortage & damage: Loss, shortage or damage to cargo Resulting from a breach of obligation to care for the cargo Rule 19(17)(a)

54 CARGO RISKS COVERED Obligation to care for the cargo: Load Handle Stow Carry Unseaworthiness Keep Care for Discharge Deliver

55 CARGO RISKS COVERED

56 CARGO RISKS COVERED 57

57 CARGO RISKS COVERED

58 CARGO RISKS COVERED

59 CARGO RISKS COVERED Additional costs: Discharging or disposing of damaged or worthless cargo Rule 19(17)(b)

60 CARGO RISKS COVERED

61 CARGO RISKS COVERED 62

62 CARGO RISKS COVERED Additional costs: Discharging, disposing of, or restowing cargo For the safe prosecution of the voyage NOT general average Rule 19(17)(c)

63 CARGO RISKS COVERED 64

64 CARGO RISKS COVERED Multimodal transport: Cover when using through or transhipment bills of lading Additional premium Contract approved by Managers Rule 19(17)(d)

65 CARGO RISKS COVERED 66

66 CARGO RISKS COVERED Cargo on another ship: Loss, shortage or damage to cargo Resulting from cargo carried on another ship When there is a consortium or cargo space sharing agreement Rule 19(17)(e) 67

67 CARGO RISKS COVERED 68

68 PROVISOS TO CARGO RISKS COVERED

69 PROVISOS (A) Hague Rules Exceptions (B) Deviation (C) Deck Cargo (D) Discharge at Wrong Port etc (E) Ad Valorem Bills of Lading (F) Refrigerated Cargo (G) Rare and Valuable Cargo (H) Property of the Member (I) Paperless Trading Cover is generally subject to the discretion of the Members Board.

70 PROVISOS Rule 19(17)(A) (A) Hague Rules Exception: Member is expected to make his contracts of carriage subject to Hague or Hague Visby Rules. Cover restricted to Hague/Hague Visby position if he does not. Hamburg rules applying by law does not affect cover. Managers & Directors Board discretion.

71 PROVISOS Rule 19(17)(B) (B) Deviation: Hague Visby Rules effects of deviation-loss of defences? Reasonable or Unreasonable Deviation? Managers & Directors discretion. Shipowners Liability Insurance (SOL)

72 PROVISOS Deviation Examples

73 PROVISOS Rule 19 (17) (C) Deck Cargo: Article 1 of Hague / Hague Visby Rules. Rule 19(17)(C).

74 PROVISOS Rule 19 (17) (C) Deck Cargo: (ii)the contract of carriage contains an appropriate liberty to carry cargo on deck; and 76

75 PROVISOS Rule 19 (17) (C) Deck Cargo: (iii)the contract of carriage is specially claused to the effect that the cargo is carried on deck and that either the carrier is exempted from all liability for loss or damage to such cargo howsoever caused, or that the Hague Rules or the Hague- Visby Rules apply to carriage on deck notwithstanding Article 1(c) of the said Rules 77

76 PROVISOS General Deck Cargo Clause Bill of lading to be claused Carried on deck at shipper s risk without responsibility for loss or damage howsoever caused Custom of the trade. Managers/Members Board discretion.

77 PROVISOS Rule 19(17)(D)(i) Change of Destination:Discharge of cargo at a port or place other than the bill of lading. Potential Consequences. Letter of Indemnity. Members Board discretion.

78 PROVISOS Rule 19(17)(D)(ii) Late Arrival / Failure to Load: Failure to arrive at load port. Late arrival at load port. Failure to load any particular cargo or cargoes.

79 PROVISOS Rule 19(17)(D)(iii) Delivery of Cargo Without Bill of Lading: Potential Consequences Managers & Directors discretion Letter of Indemnity

80 PROVISOS Rule 19(17)(D)(iv) Delivery of Cargo under a Waybill/straight bill of lading to a person other than that named: Potential consequences. Members Board discretion.

81 PROVISOS Rule 19(17)(D)(v) Anti-dated / Post-dated Bill of Lading: Potential Consequences Fraudulent? Bill of lading should tell the truth. Members Board Discretion.

82 PROVISOS Rule 19(17)(D)(vi) Incorrect Description of Cargo: Incorrect description of the cargo or its quantity or its condition with the knowledge of the Member or Master. Potential consequences-loss of club cover, and potentially fraudulent. Members Board discretion.

83 PROVISOS 85

84 PROVISOS Rule 19(17)(E) Ad Valorem Bill of Lading, recovery from club restricted to US $2,500 per unit, piece or package OR Hague Visby Limits (whichever is higher).

85 PROVISOS Rule 19(17)(G) Rare and Valuable Cargo No recovery for loss or damage to rare or valuable cargo Unless approved by managers

86 PROVISOS Rule 19 (17) (I) Paperless trading: Management approved systems. Electronic International Ltd. (ESS) and Bolero International Ltd. (Bolero). Members Board discretion. 88

87

88 CHARTERPARTIES AND THE INTER-CLUB AGREEMENT

89 INTRODUCTION We are going to look at the 2 main types of Charterparties in use. We will then look at the NYPE Inter-Club Agreement and how this allocates liabilities for cargo claims.

90 INTRODUCTION Please find your copies of: Gencon 1994 (Page 58) NYPE 1946 (Page 38) Inter-Club Agreement 1996 (as amended September 2011)(Page 52)

91 TYPES OF CHARTERPARTY

92 TYPES OF CHARTERPARTY Demise Charter Non-Demise Charter

93 MASTER & CREW Demise charter Master & crew employed by the Demise Charterer Non-Demise charter Master & crew employed by the shipowner or ship manager on behalf of the shipowner

94 NON-DEMISE CHARTERPARTIES Two main types of Non-Demise charterparties: Voyage charter - Charter period is one voyage from Port A to Port B - Charterer pays freight to his owner (or disponent Owner) Time charter - Charter period is a period of time (e.g months) - Charterer pays hire: usually every 15 days in advance

95 CONTRACTUAL CHAINS FOR THE CARRIAGE OF GOODS Shipowner 97

96 CONTRACTUAL CHAINS FOR THE CARRIAGE OF GOODS Shipowner Time Charterer /Disponent Owner 98

97 CONTRACTUAL CHAINS FOR THE CARRIAGE OF GOODS Shipowner Time Charterer /Disponent Owner Sub-Time Charterer 99

98 CONTRACTUAL CHAINS FOR THE CARRIAGE OF GOODS Shipowner Time Charterer /Disponent Owner Sub-Time Charterer Voyage Charterer 10 0

99 CONTRACTUAL CHAINS FOR THE CARRIAGE OF GOODS Shipowner Time Charterer /Disponent Owner Bill of Lading Sub-Time Charterer Sub-Sub-Voyage Charterer Cargo Owner 10 1

100 VOYAGE CHARTERPARTIES

101 CARGO - VOYAGE CHARTERPARTIES A typical Voyage Charterparty: Gencon 1994 For a voyage from Port A to Port B Charterer pays freight based on the amount of cargo loaded

102 GENCON 1994 An unamended Gencon is favourable to the Shipowner Cargo is loaded and stowed by the Charterer at his cost and also at his risk Clause 5

103 GENCON 1994 Shipowners will only be responsible for loss, damage or delay to the cargo when: It has been caused by personal want of due diligence on the part of the Owners or their Manager to make the vessel seaworthy and to secure that she is properly manned, equipped or supplied. By the personal act or default of the Owner or Manager. Clause 2

104 GENCON 1994 Changes and Rider (additional) Clauses will often be inserted which can significantly change the original cargo responsibility provisions.

105 GENCON 1994 Examples: shipowners to be responsible for the number of bags loaded.. stevedores, although appointed by charterers to be considered agents of the shipowners

106 GENCON 1994 A frequent amendment is: Clean bills of lading to be issued for cargo loaded It is crucial that the Master is made aware of such a clause in the charterparty before loading commences as this will affect what he is entitled to load or reject.

107 TIME CHARTERPARTIES 109

108 NYPE 1946 NYPE 1946 Probably the most popular dry cargo Time Charterparty in use Contract for the hire of the Ship for a period of time Charterer pays hire, usually every 15 days in advance

109 NYPE 1946 The shipowner employs the Master The Time Charterer is responsible for the loading, stowing and discharge of the cargo under the supervision of the Captain Clause 8

110 NYPE 1946 The Time Charterer is responsible for Cargo damage due to bad stowage Clause 8

111 NYPE 1946 Responsibility for: Cargo shortage claims Claims arising from over-carriage of cargo is not clear from the Charterparty terms.

112 NYPE 1946 Clause 8 includes under the supervision of the Captain Supervision means that the Master has an obligation to: Make sure that the vessel remains seaworthy at all times during the cargo operation

113 NYPE 1946 The charterers are loading and stowing the cargo But: The Master must still make sure that they are doing it in a way that will not result in the vessel becoming unseaworthy

114 NYPE 1946 If the Master insists on changing the way in which the Charterers are loading and stowing the cargo the shipowners may then be responsible for any damage to the cargo which subsequently arises.

115 NYPE 1946 Changes and Rider Clauses will often be inserted which will significantly change the original cargo responsibility provisions.

116 NYPE 1946 A frequent amendment to Clause 8: under the supervision and responsibility of the Captain Transfers responsibility for loading and stowing onto the Owners.

117 TIME CHARTERPARTIES INTER-CLUB AGREEMENT

118 INTER-CLUB AGREEMENT Inter-club Agreement to promote amicable and equitable settlements to cargo claims Mechanical apportionment of liability No re-trial of the underlying cargo claim, but the cause of the loss/damage is examined Incorporated into time Charterparty by reference Most recent version: ICA 1996 (as amended September 2011)

119 INTER-CLUB AGREEMENT Defines cargo claims and includes: Loss of cargo Damage to cargo Shortage of cargo (including slackage, ullage or pilferage) Over-carriage of cargo Delay to cargo Customs dues or fines in respect of such loss, damage, shortage, over-carriage or delay

120 INTER-CLUB AGREEMENT Additional costs covered: Legal costs of the original cargo claim Interest on the original claim Certain costs and expenses incurred by the Club which dealt with the claim initially

121 INTER-CLUB AGREEMENT Cargo claims arising out of the unseaworthiness of the vessel will be apportioned 100% Owners [NB no defence of due diligence] Unless the Owner prove that the unseaworthiness was caused by the loading, stowage, lashing, discharge or other handling of the cargo

122 INTER-CLUB AGREEMENT Under the Inter-Club Agreement: If NYPE Clause 8 is not amended by the addition of the words and responsibility Claims arising out of the loading, stowage, lashing, discharge, storage or other handling of the cargo will be apportioned 100% Charterers.

123 INTER-CLUB AGREEMENT If NYPE Clause 8 is amended to include words and responsibility Claims arising out of the loading, stowage, lashing, discharge, storage or other handling of the cargo will be apportioned: 50% Charterers/50% Owners

124 INTER-CLUB AGREEMENT Claims arising out of shortage or over carriage will be apportioned: 50% Charterers/50% Owners Unless there is clear evidence that the claim arose out of pilferage or neglect All claims to be notified within 2 years of discharge

125 INTER-CLUB AGREEMENT Pilfering 12 8

126 INTER-CLUB AGREEMENT All other claims including delay will be apportioned: 50% Charterers/50% Owners Unless there is clear evidence that the claim arose out of neglect

127 INTER-CLUB AGREEMENT If Clause 26 of NYPE is amended to include and cargo claims Apportionment under the Inter-Club Agreement will not apply even if the Agreement is specifically incorporated into the Charterparty

128 INTER-CLUB AGREEMENT Cargo claims must be properly settled or compromised and paid for a liability to arise Can usually be fulfilled where a settlement is achieved on a reasonable basis Security

129 SUMMARY Summary: We have looked at 2 different types of Charterparty Voyage Charterparty Port A to Port B; freight paid Time Charter Hire of a ship for a period of time; hire paid ICA to simplify cargo claims

130 THANK YOU 133