Cargo-Quantity. The characteristic of the bill of lading as a receipt for cargo becomes important when it is a receipt for the quantity of cargo.
The statements in the bill of lading may or may not bind the carrier depending on various circumstances. For example, if a container is stated by the shipper to contain a certain number of packages, a “said to contain” qualification in the bill of lading may not bind the carrier if the shipper packed the container, but would, if the carrier did the packing. Other qualification may have other effects, such as the qualifications “weight and quantity unknown” or “shipper’s load and count”. The position can be briefly discussed under Common Law, the U.K. Bills of Lading Act 1855 and the Hague or Hague-Visby Rules.
At common law the bill of lading is prima facie evidence that the quantity of goods is as stated in the bill. The carrier can adduce evidence to prove that the goods were never actually shipped when the bill of lading was issued. This is the result of the case Grant v. Norway, 1851. The Bills of Lading Act 1855 was enacted in the U.K. to protect cargo interests against this effect and section 3 provides that a bill of lading in the hands of a consignee or endorsee is conclusive evidence of the stated shipment as against the “master or other person signing the same, notwithstanding that such goods or some part thereof may not have been so shipped . . .”. The problem with this is that only the master or “other person” can be bound by statements of quantity in the bill of lading. In V/O Rasnoimport v. Guthrie, 1966, agents (“other persons”) who signed bills of lading for 225 bales were held liable when only 90 bales were shipped. The shipowner was not liable. In the United States, the Pomerene Act does cause the carrier to be liable for wrong statements of quantity in bills of lading. Under English law, the Bills of Lading Act is of little practical effect. (See Bills of Lading Act 1855.)
Under the Hague or Hague-Visby Rules the shipper can demand that the carrier issue a bill of lading showing, among other things, “either the number of packages or pieces, or the quantity, or weight, as the case may be, as furnished in writing by the shipper”. (Art. III, r. 3(b).) In practice today, it is common for the shipper to prepare the bill of lading and insert on it what he considers to be the quantity or weight before presenting it for signature by the carrier’s representative. It is relatively easy to ascertain the number of packages but the quantity and weight can be quite uncertain, especially for bulk cargoes. The carrier is not required to show the number of packages and the weight.
While the carrier is not obliged to show the number or quantity or weight if there is some uncertainty as provided by the proviso to Art. III, if the statement by the shipper is accepted without question, the carrier may be prima facie bound by the statement. In the situation that the bill of lading is indorsed to a consignee or endorsee the statement of quantity by the shipper conclusively binds the carrier In either situation, the shipper is deemed to have guaranteed the accuracy of the information furnished by him. However, the qualification “weight and quantity unknown” may reduce the burden on the carrier.
A clause “weight and quantity unknown” may be acceptable, especially if the number of packages is stated on the bill of lading. Such a clause will not necessarily prevent a bill of lading from being a clean bill of lading particularly if the bill of lading states that goods are shipped which are “said to weigh x tonnes”. If “said to weigh” is inserted into the bill by the shipper, the person who signs and issues the bill of lading may still insert “weight and quantity unknown” without qualifying the shipper’s statement. As far as the issuer of the bill is concerned, the weight may be as stated by the shipper but he has no way of verifying this. However, this may reduce the “receipt” value of the bill of lading because there is no clear representation of what was actually received or shipped.
Such words are included in and are part of the bill of lading itself. For example, in CONBILL, approved by BIMCO as a set of “Uniform Bill of Lading Clauses”, words printed in one of the boxes on the front of the document are: “Shipped on board in apparent good order and condition, weight, measure, marks, numbers, quality, contents and value unknown.” In CONLINEBILL, approved by BIMCO for liner trade, it is printed: “Shipped on board in apparent good order and condition…Weigh, measure, quality, quantity, condition, contents and value unknown.”
Suppose the shipper does not demand a bill of lading as he can under Art. III, r. 3 of the Hague-Visby Rules, showing the actual quantity or weight shipped, or suppose he does not require the carrier to delete the words on such bills of lading, problems can arise for consignees and endorsees. The second sentence of Art. III, r. 4 states that the bill of lading is conclusive evidence against a third party for example, an endorsee), that is it is conclusive evidence of what it states and in the situation where the bill of lading has a “weight and quantity unknown” qualification, the endorsee will have to bring an action against the shipper because the Garner could argue that although the shipper stated the quantity, the carrier could not know whether this was true or correct or not. If the bill of lading is subject to the olden Hague Rules, Art. III, r. 4 does not contain the second sentence and the third party endorsee would not have any protection. Perhaps such clauses dilute the evidential effect of the “receipt for cargo” characteristic of the bill of lading because the Hague-Visby Rules (and the Hague Rules) originally give the right to demand a bill of lading when the goods are received into the care of the carrier to the wrong person. The shipper may be least interested in delaying the issue of the bill of lading by his insistence on a deletion of a “weight and quantity unknown” clause because delay may inhibit his receiving the payment from an advising or confirming bank.
The quantity of cargo shipped and the bills of lading issued for the cargo under charterparties may also become significant. In The Boukadoura, 1989, the tanker was under a charterparty, which contained a clause requiring the master to sign all bills of lading as presented and provided that all bills of lading should be without prejudice to the charterparty. The charterers were to indemnify the owners against all consequences or liabilities arising from inconsistencies between the charterparty and the bills of lading. After the vessel completed loading, there was disagreement as to the quantity of oil loaded. The shippers’ quantity was greater than the quantity measured by the vessel and by surveyors acting for the vessel. The bill of lading with the shipper’s quantity was presented to the master for signature. He refused to sign without being allowed to indorse the ship’s figures on the bill.
The vessel sailed, after a delay, without the bill of lading being signed or issued on behalf of the vessel. In any event, the charterparty provided that cargo could be delivered at the discharging port without presentation of bills of lading. The shipowners claimed damages for delay because the charterers were in breach of contract if they had required the master to sign bills of lading stating the wrong quantity. The owners also claimed to be indemnified: The charterers argued that the master was bound to sign the bills of lading as presented, without qualification endorsement and the indemnity provision did not avail the shipowner unless the bills of lading were signed as presented.
The court decided that the master was not bound to sign a bill of lading in any terms the charterer chose to insert. It was fundamental that the bills, as presented, should relate to goods actually shipped and that they should not contain a description of the goods which was proved to be incorrect: It should be understood that in tanker cargoes a shore ship difference frequently arises for many reasons, one being the irregularity within ships’ tanks as compared to the shape of shore tanks. Precisely accurate figures are difficult to obtain on board vessels.
The charterers’ or shippers’ presenting inaccurate bills of lading was an “irregularity” and the owners were entitled to be indemnified for all consequences resulting -from this irregularity. The repeated checking of ship and shore figures was reasonable and the delay because the large discrepancy was caused by the shippers’ inaccuracy resulted in the owners being entitled to recover damages.