我们提醒所有船东在按提单放货时，需谨慎鉴别提单的真伪。船东如不慎按假提单放货，即使船东是无辜受害方且已克尽职责，也不得不面临法律和保险方面的严重后果。
在1999年Motis v Dampskibseelskabet一案中，发货人起诉船东未按正本提单导致错误放货。船东抗辩称，自己是依据假提单放货，且没有能力区分提单的真假性。据此认为船东并不是故意错误放货，因此没有过错。法院认为船东应对错误放货承担责任，船东不清楚提单是伪造的这一事实不能成为抗辩依据。运输合同没有明示赋予船东类似的抗辩依据，法院也没有理由和必要推定类似抗辩依据的存在。公共政策规定即使船东（无辜）受到欺诈，仍然负有严格责任确保将货物交给正确的收货人。本案的船东由此陷入悲惨的境地，尽管船东本身并不知道提单是被伪造的，但是他的保赔协会（国际保赔协会集团成员）拒绝对本案进行赔偿。更不幸的是，由于船东并不知道提单是伪造的，所以也没有像通常无正本提单放货情况下那样取得赔偿保证书。船东向上诉法院提起上诉，但没有成功。在英国法下，船东对该类索赔没有任何抗辩依据，即使他们也是无辜受害方。另外，保赔协会也会拒绝承担该类索赔的相应责任，因为协会规则明确规定，协会对由于未按正本提单放货所引起的责任免责。
我们正在研究协会规则和相应法律规定，相信可以找到一些论点和依据，证明协会应对此类索赔负责，而不适用未按正本提单放货免责条款的规定。对此，我们会在下一期的ALCO公司通函中进行详细讨论。
如果有任何有关假提单下船东错误放货的责任的问题，请跟我们联系。
详细信息请参阅附件。
Delivery of Cargo against a Forged Bill of Lading
We advise all shipowners to ensure that a true original bill of lading is received when delivering cargo. The legal and insurance consequences are serious if cargo is delivered against a forged bill of lading even if the shipowner is innocent and has exercised due diligence.
In Motis v Dampskibseelskabet (1999), the shippers sued the shipowner on the basis the shipowner had misdelivered the cargo without production of an original bill of lading. The shipowners’ defense was they had delivered the cargo against a forged bill of lading which they had no way of knowing were been forged. On this basis they said they had not intentionally misdelivered the cargo and were therefore not at fault. The court found the shipowners liable and the fact the shipowner was unaware the bill of lading was forged was no defence. There was nothing in the contract of carriage which gave the shipowner such a defence and it was neither reasonable nor necessary to imply such a term. Public policy dictated that although the shipowner was innocent of fraud, the shipowner had a strict liability to ensure that goods were delivered to the proper party. The shiponwer in this case was in a very unfortunate situation as their P&I Club (an International Group P&I Club) declined to support this claim despite the members had no knowledge of the forged bill of lading. Since the shiponwer had no idea the bill of lading was forged they did not even have a letter of indemnity which would have been required in the situation of delivery of cargo without production of an original bill of lading. The shipowner appealed to the Court Of Appeal and lost. It is clear that under English Law shipowners have no defence at all to such a claim even if they are also an innocent victim. It is also important to know that P&I Clubs would decline liability for such claims based on a rule which exclude liability arising from delivery of cargo without production of an original bill of lading.
We have researched into the P&I Club rules and the law and in a similar situation, we believe there may still be arguments to put forward to the Club why the rule excluding liability for delivery of cargo without production of an original bill of lading should not apply and why the Club should still cover for such liability. We will discuss this issue in a later circular.
Should you have any question, please feel free to contact us.
See attached file : ALCO Circular 20110017 Delivery of cargo against a forged bill of lading.pdf
