The Danish ship M/s susanne on a voyage from Copenhagen to Tromsø


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The Danish ship M/S Susanne on a voyage from Copenhagen to Tromsø

  • The Danish ship M/S Susanne on a voyage from Copenhagen to Tromsø


In Chopenhagen 3 bills of lading are signed by Hanssen, agent of Neptun

  • In Chopenhagen 3 bills of lading are signed by Hanssen, agent of Neptun



On delivery at the port of Tromsø:

  • On delivery at the port of Tromsø:



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 claims?



Govern the conditions for the carriage and delivery of the goods as between the carrier and a third party holder

  • Govern the conditions for the carriage and delivery of the goods as between the carrier and a third party holder

  • Provisions which are not included in the bill of lading can not be invoked…unless the b/l includes a reference to them

  • What legal regime?

    • § 325.2 – see § 253


If a b/l has been issued under a charterparty chapter 13 applies to the b/l if it governs the legal relationship between the carrier and the holder of the b/l

  • If a b/l has been issued under a charterparty chapter 13 applies to the b/l if it governs the legal relationship between the carrier and the holder of the b/l



Common content:

  • Common content:

  • ”In apparent good order and condition”

  • ”Subject to terms and conditions of charter party (where/when signed unknown to us)”



Neptun

  • Neptun

    • Carrier (contractual carrier)
  • Ship owner

    • Sub-carrier (actual carrier)
  • Exporter/Seller

    • Sender (cif seller)
    • Shipper (delivers the goods)
  • Importer

    • Receiver


The importer of the cement claim compensation for the damages from

  • The importer of the cement claim compensation for the damages from

    • Neptun (contractual carrier)
    • The ship owner (sub-carrier)


1) Is the bill of lading agreed between 1.1) the sender 1.2) the receiver and

  • 1) Is the bill of lading agreed between 1.1) the sender 1.2) the receiver and

    • Neptun
    • The ship owner
  • 2) If yes, is the c/p agreed between the importer and Neptun/the ship owner?

        • Question of interpreting § 325
  • 3) Are the carrier/sub carrier liable for the damages?



Gencon 1994 is regulating the relationship between Neptun and the exporter (charterers)

  • 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



The holder is the importer.

  • 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?



About the intermediary's power to bind the principal

  • 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


Not regulated in the NMC, but in the Contracts Act 31 May 1918, nr. 4, chp. 2

  • 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



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

  • 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

  • The wording: ”same rules”

    • 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



Assume the b/l was signed by the master:

  • 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)


NMC§ 292 3 and § 325:

  • NMC§ 292 3 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.

    • If yes, Gencon has no impact on the question on misdiscription
  • The bill of lading and the NMC are applicable.



The damages

  • Bill of lading I and II (misdescription)

  • Bill of lading III (transport damage)



Neptun/Contractual carrier:

  • 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.“


Breach of sales contract.

  • 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



”5 bags torn”

  • ”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?



5 bags torn/empty – no liability

  • 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:



”A few wet bags”

  • ”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


NMC § 275: Negligence with a reversed burden of proof

  • 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 ?



Not liable if ”fault or neglect in the navigation or management of the ship”

  • 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
  • Borderline cases

    • Was the act or omission primarily in the interest of the cargo or the ship?
    • ND 1975.85 NSC Sunny Lady



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