A shipper is entitled to demand that a B/L is issued when cargo is loaded on board a vessel, and the Hague Visby Rules (and Hamburg Rules) require that that information is included in the bill and the carrier will be responsible for the reasonable accuracy of the factual statements made in the B/L.
In legal terms, the carrier is making a so-called “representation”, but some statements may in fact also work to protect the carrier and the vessel’s master.
This is vital because the information in the B/L, between the vessel owner and the charterer will be so-called prima facie evidence against the carrier but if the B/L has been transferred to an innocent third party B/L holder, then the information in the B/L will be conclusive evidence against the carrier.
It is therefore important to know that words and terms such as “weight, quantity... unknown” (such as it is found in e.g. the Congenbill) will in English law protect the carrier.
In legal terms, the inclusion of this particular statement means that the carrier and master have given no representation as to the accuracy of the information in the B/L (with regard to quantity etc.).
This has long been accepted in English case law and is demonstrated in “The MATA K” from 1998 and has consistently been upheld in later decisions.
One of the latest is London Arbitration 3/10. In this arbitration, the charterers argued that there had been a short-shipment whereas the owners denied this claim and at the same time made a counterclaim for a balance of account.
The charterers when making their short-shipment claim relied on the B/L but also on other documents which included the cargo plan, manifest, export declaration certificate, seller’s packing list, a tally report at discharging and a commercial invoice.
The owners, on their part, argued that the B/L (and the rest of all the documents relied on by charterers) had either little or absolutely no evidential value given that the specific information in all of these documents came from the same source – namely the shippers. The owners referred to the fact that draft surveys following loading and before discharging demonstrated that the ship had loaded the quantity contracted for in the C/P.
The arbitration panel stated clearly that the B/L itself was of “no evidential value since it bore the customary words ‘weight, measure... quantity... unknown’”. The panel also referred to the fact that the other documents had “some” evidential value, but the mere fact that so many other documents containing the same figure for the weight of the cargo added nothing. They were all based on the same information which simply got repeated more or less mechanically. The arbitrators therefore accepted the owners’ argument that the fact that a certain piece of information is repeated in perhaps a great number of documents dot not in itself give it any increased evidential value.
The charterers had also protested that the draft surveys (to which the owners refereed) were “unsatisfactory in some respects”, but the panel accepted that a draft survey could not be dismissed entirely but in the circumstances in fact supported the owners and not the charterers.
This applies under English law. The courts in many (some would say the most) other jurisdictions would not necessarily agree. It is therefore vital also to properly incorporate choice of law and jurisdiction clauses to refer any dispute under the B/L to the jurisdiction of the English courts (or English arbitration) and with the dispute to be decided under English law.
(The choice of law and choice of jurisdiction/arbitration should always be the same (identical) under the C/P and the B/L).
This is a different area of possible dispute as some courts across the world will not necessarily respect a choice of law and arbitration clause in the B/L.
The MATAK [1998] 2 Lloyd’s Rep 614
London Arbitration 3/10 (2010) 791 LMLN 4