Although all carriers and master should be aware of their obligations to issue a bill of lading stating the “apparent order and condition” of the goods shipped, the following is a summary explaining and alerting shipowners and masters how this statement would be incorrectly described in a bill of lading.
The Hague or Hague Visby Rules state the carriers must state on the bill of lading the “Apparent order and condition” of the cargo of the goods shipped.
“Apparent order and condition” relates to the condition of the goods apparent on a reasonable inspection, and not the quality of the cargo.
The master is not deemed to be a cargo expert or surveyor but he should not state on the bill of lading the cargo described by the shipper if he suspects this may not be case and if a reasonable experienced master would have suspected or queried the nature or description of cargo being shipped is not as described.
“Apparent good order and condition” also refers to the packing of the cargo. This is defined to mean the cargo is properly packed to withstand the ordinary risks of the voyage. If the cargo is not sufficiently packed, a clean bill of lading must not be issued and the bill should be claused.
The words used to clause the bill of lading must be clear. If the words used are too general or ambiguous the courts may presume that the cargo are represented to be in apparent good order and condition In the 1946 case of Potts v Union Steamship Co of New Zealand, the packages of a shipment were damaged causing a risk of pilferage. The master had only claused the bill of lading “packages insufficient” and this was held to be an ineffective qualification of “apparent order and condition of the cargo”. The words used to clause the bill of lading should be as specific as possible ie. 50 bags torn showing the contents of cargo, although sometime it is necessary to give estimates ie. 10% torn.
Andrew Liu & Co. Ltd
The words used to clause the bill of lading must be stated on the front of the bill of lading. If the clausing or qualification is stated on the back of the bill of lading, it was held such a bill of lading is still a clean bill of lading.
A bill of lading which was claused on the front of the bill of lading with specific remarks about the cargo damage but the bill of lading was also stamped “Clean on board” was held to be a clean bill of lading and the claused remarks or qualification offered no protection to carriers.
Remarks such as “all particulars supplied by the shippers but unknown to the carrier” or “weight, measure, quality, condition, contents unknown” are useful to offer some protection to the carrier if these details cannot be verified by reasonable examination by the master but if such details can be verified by the master, such remarks would offer no protection.
Ship to ship transfers of personnel are day to day occurrences in the shipping industry and have been for centuries. Therefore it is alarming that in this day and age of safety culture, regulation and inspection that catastrophic injuries and even fatalities still occur. Following a recent highly publicised case of a severely injured woman passenger being medically evacuated to a coast guard rescue vessel only to be dropped into arctic waters the UK Maritime authority, the Marine and Coastguard Agency (MCA) have recently issued a Marine Guidance Notice (MGN 432(M+F)) on the Safety during Transfers of Persons to and from Ships. This guidance note is issued to supplement regulation already in force in the United Kingdom but is good guidance to the maritime sector in general highlighting some of the important areas and provision that should be addressed prior to a vessel undertaking this type of operation. The Club would like to take this opportunity to highlight the severity of these cases and promote good working practices in this area Details please refer to circular 2.
提单批注 – “表面状况良好”
虽然承运人和船长应该都知道他们在提单上注明所装运的货物”表面状况良好”的责任，但是我们还想提醒船东和船长，在以下一些情况下批注”表面状况良好”的做法不正确。
海牙或海牙维斯比规则指出，船东必须在提单上列明所承运的货物”表面状况良好”。
“表面状况良好”指经过合理的检查认为货物的表面状况良好，而不应涉及货物质量。
船长虽非货物专家或检验员，但是如果船长怀疑或一个有适当经验的船长可能会怀疑或质疑所装运的货物的性质或品名与发货人的描述不符，那么他不应该在提单上批注货物”表面状况良好”。
“表面状况良好”还涉及到货物包装，即货物合理包装并能对抗正常的航行风险。如果货物包装不足，则不应签发清洁提单，并应在提单上做相应的批注。
提单批注的用词必须明确。如果用词过于笼统，法院有可能作出货物表面状况良好的认定。在1946年的Potts v Union Steamship Co of New Zealand案例中，货物包装破损引起偷盗风险，船长仅在提单上批注”包装不足”，而该批注被认为并不能有效限制”表面状况良好”。因此，提单批注的用词应该尽量具体，比如，50包破损，货物裸露在外面，或者10%的包装破损。
提单批注应该写在提单正面。如果仅在提单背面批注，那么该提单会被视为清洁提单。
提单正面如有货损批注，但提单同时加盖清洁提单印章，那么该提单还是会被视为清洁提单。而该批注则起不到保护船东的作用。
以下批注可以以起到保护承运人的作用，如：”所有明细由发货人提供承运人并不知情”或”重量、尺寸、质量、品名、内容未知”，但仅限于这些明细无法由船长经由采取合理的检查手段核实为限；如果该明细可以被核实，那么该批注亦起不到保护作用。
