Chapter 3: The Carrier

P & O Nedlloyd Bill

3.1

3.10

In all bill of lading cases it will be necessary to identify the contracting parties. Identifying the carrier liable (and entitled to sue) under the contract will often be a straightforward matter. Most of the modern bills issued by combined transport operators involved in regular liner trades, often in consortia, will take great pains to define the carrier that is the principal under the contract. To the average commercial reader of the document, the contracting carrier will be apparent from the company name and logo which is often printed prominently on the top right-hand corner of most liner bills. The P & O Nedlloyd Bill has the words “P & O Nedlloyd” in large letters, along with the company logo. This is an indication that the bill is a “P & O Nedlloyd” bill, but care must be taken about such assumptions as such pre-printed insignia are accorded comparatively little weight in the decisions where other factors indicate something different. 10 Much more weight will be attached to other factors, such as the mode of signature 11 and express clauses seeking to define the carrier, such as the ones above. The definitions have to be read together with the signature, as do any clauses seeking to define generally who the contract is with. 12 Commercial judges have shown a recent preference for looking at the bill of lading as a whole, rather than concentrating on one, or another, factor. 13 While this approach is consistent with the general theory of interpretation, 14 it does not make it easy to predict the outcome of cases.

3.11

In modern combined transport bills issued by members of consortia who operate ships in their own name it is common to have the carrier identified by name. Thus, in the old P & O Containers Bill “Carrier” was defined as “P & O Containers Limited”, which, taken with the signature provision, 15 left little doubt as to who was liable under the contract. The P & O Nedlloyd Bill is even clearer as it includes the name of the carrier in the signature box. 16 Moreover, if such a carrier undertakes to perform a combined transport operation involving, for example, road or rail transport, it will be common for it to undertake to be the contracting carrier for the whole transport. It would assume direct contractual responsibility to the cargo owner for subcontractors. 17 If the carrier only undertakes a port to port shipment, its status as contracting carrier will relate to a shorter period. 18 Where the ocean legs are shared by a number of ship operators, the question will arise whether the carrier that issued the bill assumed the responsibility of contracting carrier for the whole voyage (as with combined transport bills), or whether it seeks to restrict its liability after a transhipment. 19 It may be that a line performs ocean transport, but not inland navigation, e.g. up river or canal systems. Such legs may be performed by smaller ships or barges. Again, the carrier may assume full responsibility for the whole transit, or declare that it is only the carrier for its portion of the transit, as with the “K” Line bill. 20

3.12

Where lines operate group shipping agreements or consortia they may use a common bill of lading where the contracting carrier will vary depending on whose ship is used. Hence a more general form of definition is needed, as with the ESS bill. There may also be cases where an operator charters-in tonnage, preferring, for business purposes, to use its own standard form bill. In such cases the drafter of the bill may want to preserve flexibility as to whether the bill should be a shipowner’s or a charterer’s bill. In these examples, the definition clause will be drafted generally, merely referring the reader back to the face of the document and in particular to the signature provisions. Such general clauses as that in the 1992 Mitsui bill appear to be superfluous as they refer to that which the courts would consider anyway, but they may serve the purpose of removing (or undermining) arguments that a shipper thought it was dealing with a particular line, 21 rather than the shipowner whose master in fact signed the bill. The 1993 Mitsui bill is similar to the ESS bill and is much clearer. The UCP 500 also has requirements concerning the identification of the carrier for the purposes of documentary credits. 22

3.13

Under the Hague and Hague-Visby Rules Art. 1(a) “carrier” includes “the owner or the charterer who enters into a contract of carriage with a shipper” and under the Hamburg Rules 1978 Art. 1.1, “Carrier” means “any person by whom or in whose name a contract of carriage of goods by sea has been concluded with a shipper”. In both cases, the rights and liabilities under the Rules relate to the contracting carrier, although both the Hague-Visby Rules, Art. TVbis r.l, and the Hamburg Rules, Arts 1.1 and 10, contain provisions dealing with actual carriers. 23 The Hague and Hague-Visby Rules definition is not exclusive, 24 but it is difficult to see an English court accepting an argument that the Rules apply to persons other than those who enter contracts of carriage with the shipper. Tetley is surely right when he asserts that there is nothing in this definition that prevents the shipowner and charterer being contracting carriers, in a suitable case. 25

3.14

Conlinebill

IN WITNESS whereof the Master of the said Vessel has signed the number of original Bills of Lading stated below, all of this tenor and date, one of which being accomplished, the others to stand void.

Signature________________ 26

3.15

ANL Australia/South East Asia Service Bill

IN WITNESS OF THE CONTRACT HEREIN CONTAINED the undersigned agent on behalf of the Carrier has signed the number of original Bills of Lading stated above, all of this tenor and date, one of which being accomplished the others shall stand void.

For the Carrier, ANL Limited, A.C.N. 008 654 206

By________________as agent 27

3.16

ESS Bill of Lading

IN WITNESS WHEREOF, THE UNDERSIGNED AGENT ON BEHALF OF THE CARRIER NAMED HEREUNDER AND THE MASTER AND OWNER OF EACH VESSEL, 28 HAS SIGNED THE NUMBER OF ORIGINAL BILLS OF LADING STATED ABOVE, ALL OF THIS TENOR AND DATE, ONE OF WHICH BEING ACCOMPLISHED, THE OTHERS SHALL STAND VOID.

By---------------------------

3.17

“K” Line Bill of Lading

IN WITNESS whereof, the undersigned, on behalf of Kawasaki Kisen Kaisha, Ltd. the Master and the owner of the Vessel, has signed the number of Bill(s) of Lading stated below, all of this tenor and date, one of which being accomplished, the others to stand void.

By________________ 29

3.18

Visconbill

In witness whereof two (2) original Bs/L have been signed, if not otherwise stated below, one of which being accomplished the other(s) to be void.

Signature (Master)--------------------------- 30

Signature (Shipper)---------------------------

3.19

P&O Containers Bill

IN WITNESS of the contract herein contained the number of originals stated opposite has been issued, one of which being accomplished the other(s) to be void.

For the carrier________________

As Agent(s) only. 31

3.20

P & O Nedlloyd Bill

IN WITNESS of the contract herein contained the number of originals stated opposite has been issued, one of which being accomplished the other(s) to be void.

FOR P&O...