BBC Greenland (2011) 一案概括了在英国法下关于船东对提单项下甲板货运输免责的立场。
理解船东对提单项下甲板货免责的法律权利很重要，因为所有保赔协会集团下属协会的规则中都明确规定不承保由甲板货运输而引起的船东责任，除非有行业惯例允许承运甲板货。
本案中提单条款如下，
提单正面条款：
a. “所有甲板货的固有运输风险由托运人/承租人/收货人承担，托运人/承租人/收货人明示放弃所有关于船舶适航的保证。
b. 提单背面条款中的运输条款规定：
“…除非另有规定，承运人在任何情况下对甲板货的损失或损害不负有责任”
法院考虑的问题：
1.收货人主张，提单正面关于甲板货运输的条款，相当于规定有将货物载于甲板上的自由，只有在提单上明确记载货物将装载于甲板 上，才应适用这一条款。尽管本案中货物实际装载于甲板上，但提单中并没有明确记载。因此，不适用提单背面运输条款中有关甲板货运输的免责条款。法院认为，除有特别情况需适用外，提单中一般不会将货物载于甲板上作为提单正面条款记载于提单正面，因为标准运输条款通常写在提单背面。
2.收货人主张，即使提单声明货物载于甲板上，在英国法下根据《1971年英国海上货物运输法》的规定，不能免除甲板货责任。《1971年英国海上货物运输法》规定 “…如果提单并入的合同或提单表面记载…适用于甲板货…该规则…将生效正如（该规则）…没有排除甲板货…这部分的 “甲板货” 指运输合同下的货物声明并实际载于甲板上” 。换言之，《1971年英国海上货物运输法》规定承运人对甲板货运输不能免责。法院认为，《1971年英国海上货物运输法》不适用于该运输条款，因为该法案没有强制适用于本航次，也没有契约性的并入提单。
结论：
1. 当货物载于甲板上时，除了运输条款中有关甲板货运输的免责条款外，在提单正面明确记载货物装载/托运于甲板上很重要。
2. 重要的是，不要将《1971年英国海上货物运输法》契约性的并入提单合同。
以上由 ANDREW LIU & CO.,LTD 编译，应以英文为准！
详细信息请参阅附件。
Carriage of deck cargo
The case of BBC Greenland (2011) summarises the position under English law on the owner’s ability to exclude liability for deck cargo carriage under the bill of lading.
Understanding the owner’s legal rights to exclude deck cargo liability under the bill of lading is very important as all P&I Club rules exclude cover for owner’s liability arising from deck cargo carriage unless this is a custom of the trade.
The bill of lading in the BBC Greenland case stated the following conditions : –
a. On the face of the bill of lading:
“All cargo carried on deck at shipper’s / charterer / receivers risk as to any perils inherent in such carriage, any warranty of seaworthiness of the vessel expressly waived by the shipper / charterer / receiver.
b. Conditions of carriage on the back page of the bill of lading :
“….unless otherwise provided herein, the carrier shall in no case be responsible for loss or damage to deck cargo..”
The issues considered by the Court :
1. The receivers argued the condition relating to deck cargo carriage on the face of the bill of lading amounted to a liberty to carry cargo on deck and this condition would apply if the cargo was so stated to be carried on deck. The bill of lading did not specifically state that the cargo was so carried on deck even though cargo was so carried on deck and accordingly the exclusion clause relating to deck cargo carriage contained in the conditions of carriage on the back page of the bill of lading did not apply. It was held the bill of lading did state the cargo was carried on deck as a condition on the face of the bill of lading was not usually stated on the face of the bill of lading unless it was especially intended to apply, because standard conditions of carriage are usually stated on the back page of the bill of lading.
2. It was argued by the receivers that even if the bill of lading did state the cargo was carried on deck, deck cargo liability cannot in English law be excluded on account of The UK Carriage Of Goods By Sea Act 1971 which provide “…if any so far as the contract contained in or evidenced by a bill of lading ….applies to deck cargo… the Rules….shall have effect as if (the Rules) …did not exclude deck cargo…In this subsection deck cargo means cargo which by the contract of carriage is stated as being carried on deck and is so carried” . In other words the UK Carriage Of Goods By Sea Act 1971 prevented a carrier from excluding his liability for deck cargo carriage. It was held the UK Carriage of Good By Sea Act 1971 did not apply to the conditions of carriage as the Act was not compulsorily applicable on this voyage and also was not contractually incorporated into the bill of lading.
Conclusions :
1. When cargo is carried on deck, in addition to a condition excluding liability for deck cargo carriage being included in the conditions of carriage, it is important the face of the bill of lading specifically state that the cargo is carried / shipped on deck.
2. It is important the UK Carriage Of Goods By Sea Act is not contractually incorporated into the bill of lading contract.
See attached file : ALCO20120037 Carriage of deck cargo.pdf
