A trick question..?? Lets discuss this with a case study of a case that is raging on in one of the social media forums..
A forwarder booked 2×20′ containers with a shipping line to Doha on behalf of his client.. Due to a mistake of the shipping line staff, the shipping line shipped 1×20′ to Doha and put the other 1×20′ with some other clients container and shipped it to Bremerhaven.. This happened because the Doha container was linked by mistake to the booking of the Bremerhaven container.. By the time the forwarder found this mistake out, the container was already on its way to Bremerhaven.. The shipping line has advised that this container will be rerouted but the container will take about 60 days to reach Doha instead of the original transit time of 20 days if it had gone directly..
Due to this delay, the forwarder has lost his client (the shipper), because the shipper blames the forwarder, the shipper has lost future orders with his client and has lost his credibility in the market..
When the forwarder placed the shipping line on notice and raised a claim against them, the shipping line is trying to hide under their bill of lading clauses as below
19.1 :
Q: 19.1 The Carrier may at any time and without notice to the Merchant:
(a) use any means of transport or storage whatsoever;
(b) transfer the Goods from one conveyance to another including transshipping or carrying the same on a Vessel other than the Vessel named on the reverse hereof or by any other means of transport whatsoever and even though transshipment or forwarding of the Goods may not have been contemplated or provided for herein; UNQQ: 19.2 The liberties set out in clause 19.1 may be invoked by the Carrier for any purpose whatsoever whether or not connected with the Carriage of the Goods. Anything done or not done in accordance with clause 19.1 or any delay arising therefore shall be deemed to be within the contractual Carriage and shall not be a deviation. UNQ
Q:
20. Matters affecting performanceIf at any time Carriage is or is likely to be affected by any hindrance, risk, danger, delay, difficulty or disadvantage of whatsoever kind and howsoever arising which cannot be avoided by the exercise of reasonable endeavours, (even though the circumstances giving rise to such hindrance, risk, danger, delay, difficulty or disadvantage existed at the time this contract was entered into or the Goods were received for Carriage) the Carrier may at his sole discretion and without notice to the Merchant and whether or not the Carriage is commenced either:
(a) Carry the Goods to the contracted Port of Discharge or Place of Delivery, whichever is applicable, by an alternative route to that indicated in this TD or that which is usual for Goods consigned to that Port of Discharge or Place of Delivery. If the Carrier elects to invoke the terms of this clause 20(a) then, notwithstanding the provisions of clause 19 hereof, he shall be entitled to charge such additional Freight as the Carrier may determine; or UNQ
The hapless freight forwarder is left without a solution as the shipping line is rejecting his claim for
- delayed delivery
- loss of current and subsequent business of their client
- the shipper is blaming the freight forwarder for the mishap and is expecting them to sort out the problem
Here’s what i think :
I think the forwarder has a valid case, as the delay was due to the the shipping line making the mistake and routing the container to the incorrect destination in an entirely different continent and trade route and not due to delay in transit to Doha..
If the container that was bound for Doha was delayed, then the SL can hide behind the clause mentioned and say we promised to get your container to Doha but didn’t promise you how long it will take..
But in the case of the container that was originally bound for Doha but sent to Bremerhaven incorrectly, they cant hide under this premise because they have sent the container to an entirely different port (without informing the customer) and this contravenes the contract of carriage (which was for Doha).. The bill of lading was issued correctly, but the containers were routed incorrectly..
I think the forwarder stands a chance if he goes to court..
Do you agree with my view..?? Did anything similar happen to you..?? Please do share your experience and also what was the final outcome.. It will be a good lesson for all to learn..
Its really so informative and great information that you shared. Hope we’ll see further updates about shipping forwarder Singapore and also like this one. Thanks for sharing…keep it on. I also belong to same as you guys…
DEAR SIR,
WE BOOK ONE CONTAINER TO JEBEL ALI WE PLAN SHIPMENT FOR 3RD SAILING BUT SHIPPER CARGO WAS DELAY RECIVED ON 30.04.2021 SO WE NOT DONE CLEARANCE PART TIOO 04.05.2021 DUE TO HOLIDAY FOR 1ST MAY (MAHARASHTRA DAY / LABOUR DAY) 2ND WAS SUNDAY CUSTOM AND CFS WAS CLOSED.
WE PLAN SHIPMENT ON 5TH SAILING VESSEL AS PER BOOKING COPY BUT VESSEL SAILED DEALY ON 07.05.2021 AND REACH DESTINATION AT 12.05.2021 AFTER 6 DAYS BUT ACTULY TRANSIT TIME FOR JEBEL ALI IS 4 DAY
NOW SHIPPER RECEIVED CARGO AND CLEAR BUT HE NOT GIVEN OUR MONEY HE MAKE FREIGHT PAYMENT TO DIRECT LINER AND HE NOT PAYING CFS AND CLEARANCE CHARGES TO US AFTER ALL THINK SHIPPER SEND LEAGAL NOTICE FOR CARGO DAMUAGE
CAN YOU ADVISE
We loaded. Container for shipment from Liverpool to port qasim shipping agent informed me after it was picked up from our premises four days late the container is 750 kg overweight I used the option of second weight at port after second weigh they found out it was not over weight gut 2500 kg under weight limit it caused lot of mental stress and delay in delivery now my customer is asking for compassion for delayed delivery can I pass my customer on to shipping line it was their fault please advise
Hello sir,
My container 1*40ft booked from vietnam to Kolkata, is in visakhapatnam last 45 days due to break down of the vessel. I am calling to the staff of RCL also mailed through the company website but no any response. Everyday I check status with website, they are extending date everyday. Have to suffer heavy loss. please help
He’llo sir
Sir I was in big trouble bcoz of shipping line mistake. I have done 1 *40 ft container of onions from Mundra port to shrilanka. Ship cut off time is Friday and departure on Sunday. But there is probablm in to shipment and ship delay 1 week it means my goods will stand in Port 12 days and now I have to go for loss full container goods damage now sir please suggest me something please sir help me
Hi Amit, you can check with the shipping line if there is any alternate sailing around the same time as the delayed vsl.. If there is nothing, then find an alternate shipping line who has sailing when you want it.. Then discuss with original shipping line if they will allow for the cargo to be unpacked from their container and loaded onto the other shipping line’s container.. You many incur some costs in terms of unpack/repack, customs, documentation, transport etc.. But overall that may work out cheaper than losing your entire cargo..
Depending your relationship with the original shipping line, you can discuss with them if they will share any of these costs.. Answer may be no, but at least you can try..
Good luck..
Thanks a lot, sir
Dear Mr Hariesh
i think no one can beat Shipping line m but when we send e-mail to shipping line to get rate also we know transit time
is that is contract or i mean the shipping line oligate to move cargo with agreed T.T , may delay 2 days or more with A reasonable reason , but in this case one cntr reached to Doha in dual time and the 2nd no , is the bill of lading FOR 2 CNTR , HOW SHIPPING LINE SPILT IT
We have import Fabric from CHINA on the mode of CIF terms but shipping line charges us as destination charges IN USD like:-
CAFE CARGES
TRS SISCARGA CAHARGES
CIC CHARGES
BAF CHARGES
RDS CHARGES
WE WOULD LIKE TO KNOW THE ABOVE CHARGES ARE DESTINATION CHARGES OR SHIPPING DESTINATION CHARGES. ARE THESE CHARGES ADDITIONAL CHARGE IF THERE ARE CIF SHIPMENT.
Hello Narender, what ever these charges stand for, there is no connection between your sales contract with your seller and the shipping line.. Shipping lines contract of carriage is different to that of the sales contract.. The shipping lines charges will be same whether you ship on CIF, CIP, FCA etc etc.. The sales contract will determine who pays for which of these charges, the buyer or the seller..
Hello Sir,
I have a bit similar case, we ship goods from asia to europe, but the vessels stops on the way and delayed the trip for many weeks.
The result is that our customer want our company to refund the goods because of the excessive delay of delvery.
Do I have a way to ask the shipping company/agent in charge of the shipment to ask compensation?
Thank you for your reply.
Hello Ludo, I don’t think you will be able to do that as the conditions of carriage are bound by the terms of the bill of lading and there is no legal standing for delayed delivery..
wonderfull!!
Sophie, some customers of the shipping companies may grouse about the “fairness” of the standard terms of the shipping company’s bill of lading, as set forth in paragraphs 19.1, 19.2 and 20 in the example provided in this blog. However, from the shipping company’s point of view, they are fair, and commercially necessary, if the shipping company is going to survive to serve its customers year after year. Think what disaster would arise if these clauses were not applied and the shipping line had to operate within rigid and unbending lines that do not comport with the reality of ocean transport.
Your statement that, “. . . . if a contract contains a clause that’s abusive or misleading, that clause is invalid.” is not exactly correct and is compound. But that’s OK. Non-lawyers often apply what they believe is commons sense to legal situations . . . that’s a mistake. One must apply the law, not opinion, if an accurate analysis is to be made and a consistent result is to be obtained. Of course, we hope that the law does apply common sense, and in my opinion, in most cases it does. I am talking about the common law principles of contracts, which were established hundreds of years ago in England and have survived in basic concept through until today, modified somewhat of course by the changing times.
First, if the contact is written by one party and includes a misleading statement of fact so that the other party does not and cannot, through the exercise of due diligence, know that that the statement is misleading (actually, I believe you mean to say “fraudulent” rather than misleading) a court may very well find in favor of the non-drafting party and construe the contract, or the clause in their favor.
Second, courts can invalidate a contract, or a clause of a contract due to mistake. For a good explanation of what constitutes mistake, see: http://en.wikipedia.org/wiki/Mistake_(contract_law)
Third, you use the word “abusive”. I am unaware of any application of that word under the law of contracts. Both parties to a contract are free to negotiate terms. Sometimes the terms favor or protect one party more than another. It could be argued that the standard terms of a bill of lading are weighted toward the shipping line. However, I believe the terms set forth in the example here as paragraphs 19.1, 19.2 and 20 are clear as to how those clauses protect the shipping company, but those clauses do not protect the shipping line from their own mistakes . . . i.e. their negligence, as was the case in this blog. (See my previous comments in this blog comment section.)
In common law jurisdictions, clauses in a contract which are unconscionable are voidable by the court. The standard terms of a bill of lading could be considered an “adhesion contract”. An example of an adhesion contract is a standardized contract form that offers goods or services to consumers on essentially a “take it or leave it” basis without giving consumers realistic opportunities to negotiate terms that would benefit their interests. When this occurs, the consumer cannot obtain the desired product or service unless he or she acquiesces to the form contract.
There is nothing unenforceable or even wrong about adhesion contracts. In fact, most businesses would never conclude their volume of transactions if it were necessary to negotiate all the terms of every consumer credit contract. Insurance contracts, real property leases, purchase order terms, invoice terms, and the standard terms and conditions of a bill of lading are other kinds of adhesion contracts.
Adhesion contracts are not per se invalid. However, adhesion contracts, or adhesive clauses in a contract, that are “unconscionable” may be invalidated by a court if they are deemed to be so unfair to the weaker party that a court will refuse to enforce them. An example would be severe penalty provisions for failure to pay loan installments promptly that are physically hidden by small print located in the middle of an obscure paragraph of a lengthy loan agreement. In such a case a court can find that there is no meeting of the minds of the parties to the contract and that the weaker party has not accepted the terms of the contract.
In reading the standard terms of the bill of lading set forth in this blog’s example, I see nothing unconscionable, or even unfair – but of course, what’s the old saying? . . . . fairness is in the eye of the beholder, and disputes over what is fair and what is not fair often end up before the courts.
In drafting their standard terms and conditions of the bill of lading, the shipping company merely protects itself from the occurrences of normal business situations. These clauses do not, however, exculpate the shipping company from their own mistakes or negligence, which is what was apparently the case in the blog’s example. Please read my earlier posts, which I believe clearly explains this.
Oh, and yes, in this business, shipping companies are the “king of the world” . . . they set the rates, they set the sailing schedules, they set the terms on their bill of lading . . . hey, that’s life.
Need Some Help Here from who ever can direct us to the right direction. The same Issue Of Shipping lines Playing God.
We Have cases where shipping line Will charge Higher than Actually Quoted. Over charging on Export Detention.
Chasing After Your customers Offering Lower Rates to them Though we Are Moving the Same with Same S/L. . . . and so
On. The way they Act as the Untouchables and so Far it Seems there is nothing that can be done.
This is a very interesting topic, and I very much appreciated everyone’s input on this case. However, there’s another question that I think should be given more attention: aren’t some of the BoL clauses completely abusive? How can such clauses be even allowed to exist? Shipping lines often behave as the “kings of the world”, with no one above them to “supervise” them, and they are the ones who decide what’s acceptable or not in their business relationships. Shippers have no say – you either accept, or don’t ship at all. But at the same time, I’ve always heard that, if a contract contains a clause that’s abusive or misleading, that clause is invalid. So I wonder…how far goes the shipping lines’ right to “hide” behind these clauses that they’ve made up? Are these “no liability” clauses even acceptable from a legal standpoint? I mean, I know they couldn’t possibly be held responsible for everything that might go wrong during a shipment, but “no liability at all” doesn’t seem fair and correct either.
Stan, you are correct about the business relationship with the shipping lines, however, it is a two-way street and if the shipping line has integrity, it will atone for its mistakes. Even small freight forwarders are free to determine which lines they use, and shipping lines are always unreasonable, they will lose business and in today’s economy, the lines can’t afford to lose business.
But what I have been talking about is liability. I have previously pointed out that the calculation of damages is a totally different matter. The shipping line was negligent. If they have integrity, they will pay “reasonable damages”. Most likely they are insured, so their insurance company will actually pay.
But what is the “measure of damages” here? We have not been given enough facts to determine that. Certainly, the freight forwarder’s loss of his customer is not recoverable. As was pointed out earlier in this discussion by Willie, “. . . customers come and go for various reasons, many being related to situations completely out of the hands of the forwarder . . .”
If we knew what damages the freight forwarder is seeking, we could analyze that. But for now I don’t believe there is much more that can be said in this matter.
Hello David
My containers has been late for 2 months and yhe company is safmarine and they told that they sister was hacked and now they are on strike and my containers is sitting somewhere. Outside England
What can I do ?
Thanks
David, I am totally agree with you but in reality the D&G syndrom is deeply rooted in the realationship with the Lines. Let’s wait for the end of this story. But anyway it was very interesting & cognitive, thank you
I have read the article entitled “Misdirected container raises liability issues” to which you refer, wherein, as you say, a panel of “experts” has commented. However, if you refer to my original posting of June 27th, you will see that the experts applied the same logic as did I from the onset, wherein I said, “This is a no brainer and falls outside the four corners of the shipping line’s contract, and is not a breach of contract, nor a circumstance which is covered by the contract, but is a case of pure and simple negligence by the shipping line. In other words, they messed up and will be held responsible for their messing up the cargo through their own mistake.”
Simply put, and as Mike Walwyn, director of Seaboard Maritime and national vice-chairman of the SA Association of Freight Forwarders, said, ” . . . . one cannot contract out of one’s own negligence.”
And that is absolutely correct. Under the facts given, this is not a contract issue, it is a tort issue and the tort is negligence.
In the article, Dave Watts, Durban-based maritime adviser to Saaff is noncommittal, taking a both sides of the fence approach when he first says, “The bill of lading is a contract between the shipper and the line,” he said. “It’s a contract, therefore all the provisions apply – including the host of get-out clauses all bills of lading have. When you contract, either accept the conditions or don’t ship, its easy.”
And then says, ““I imagine they might – depending on the jurisdiction. If the courts decide there was negligence, or better still gross negligence, then, depending on the law in that jurisdiction, they might view a claim positively. But I very much doubt it.”
He can doubt all he wants, but that does not change the nature of the negligence and in any jurisdiction that applies the principles of the tort of negligence.
Recapping what I said in my June 28th post about the recoverability of damages:
“In addition to damages that were the proximate result of the shipping line’s negligence, the forwarder will claim damages for lost future business from his customer who fired him because of the late shipment. The shipping line will defend by saying prospective damages are unrecoverable, because they are speculative and there is no guarantee the customer would not have fired the forwarder for some other reason, or simply because they got a better rate from another forwarder.”
And so you have it. From a legal perspective this is not a difficult question, once we had the facts straight. Sometimes one finds experts in unexpected places.
Thanks David, yes your view and opinion seems to resonate with the experts.. I have passed on all the comments to the aggrieved party and lets see where it takes him and if he has any success with his claim.. I will endeavor to keep everyone informed of the outcome..
Manaadiar, If the aggrieved party had a lawyer, all this wheel spinning would not be necessary. This question is really so simple any lawyer would figure it out in a minute. Our company has a lawyer on retainer and when we have a question such as this, we merely ask him. As I said in my June 27th post, “This is a no brainer . . . .” . . . and this is not brain surgery.
The bottom line is . . . when it involves questions of liability, it is a question of law and one should not guess. Speaking of guessing . . . that is exactly what most freight forwarders do when it comes to Incoterms . . . and most freight forwarders have never read the complete and official version of Incoterms, especially the relatively new Incoterms 2010. The troublesome spots are always with EXW and FOB, which are not intended to be used for export, but which too frequently are. How about doing a piece about Incoterms and EXW, FOB and FCA and when they should be used and why they should be either avoided or used to achieve a customer’s objectives?
I am not disputing that a contract exists whether it is written or over the phone, but the problem that arises is that if it is over the phone then there is no proof. The line will claim they said one thing and the forwarder will claim another. There is noi proof that the correct instructions were given to the line and no proof that they weren’t.
In response to the “A Shipping Line” inquiry about proofs in an oral contract . . . The bill of lading would be all the proof necessary to prove an oral contact, or perhaps even a written contract, but I won’t go into that here because it is not the issue here.
When the shipping line receives the bill of lading, with the address of the consignee being Doha, it is a far stretch that the container would be shipped to Bremerhaven.
In this instance, there is no dispute as to what the instruction to the shipping line was, since under the factual scenario presented by and then revised by Manaadiar, there were two containers bound for the same location, Doha, that got separated because of the shipping line’s mistake (or perhaps it was terminal operations’ mistake, that was never revealed in the factual scenario, but suffice to say, whoever made the mistake is the culpable party).
The issue of oral contract and required proofs vs. the provability of a written contract need not be addressed here. But, “A Shipping Line”, don’t ever be afraid to attempt to enforce an oral contract, especially where there is a paper trail of ancillary evidence that would prove the point. Prevailing on oral contracts often comes down to credibility and reasonableness, sufficient to convince the trier of fact that it is more likely than not that the oral contract existed on the terms expressed by the complaining party.
In this instance, the bill of lading and the shipping line’s general terms would prevail on the contract issue. The bill of ladling and the shipping line’s (or terminal operations) is sufficient to establish liability for negligence and for the payment of damages. Just what those damages are would need to be negotiated between the parties, or settled in a court of law.
Of course, we all understand the barnyard economics of litigation and the David and Goliath syndrome, as I previously mentioned. But we are not talking about reality here, we are discussing legal liability.
In answer to Manaadiar’s original question, if anyone remembers exactly what it is (“Shipping Lines take responsibility for their mistakes – True or false..??”) there is no blanket answer to that question, since it will depend on the shipping line, their business ethics and whether or not they accept and admit that the mistake as theirs.
Perhaps the original question should have been phrased, “Are shipping lines responsible for their own negligence, or do their general bill of lading clauses relieve them from liability for their own mistakes.” The answer to that compound question is a simple “No/Yes.”
While that statement of Bevleanne Charles is true, and does apply in the instance currently being analyzed, but as a blanket statement, care must be taken to apply it only to this set of facts. In this instance the shipping line is liable if it was their employee’s mistake that diverted the container to another ship. But when it is not a mistake of the shipping company and a shipment gets diverted because of factors outlined in paragraphs 19 and 20 of the shipping line’s contract, those paragraphs control and the shipping line in that instance is not responsible for delay or damages caused thereby. The bottom iine is, one cannot contract around their own negligence, but they can contract in the matter of paragrpahs 19 and 20 to protect themselves when commercially reasonable circumstances dictate.
At the end of the day the shipping line needs to take responsiblitity. If the freightforwarders documentation and loading instructions etc was intact. They stated Port of loading and Discharge come on what happended. Simple basics of a Bill of Lading.
My thoughts start at the very beginning of the transport of the two containers. Where they taken into the terminal under carrier or merchant haulage? Which stack were they placed in when they were unloaded from the carrying vehicle as that is where the problem started. A container will not be taken from a stack for loading onto vessel A to be loaded on vessel B. That is when the problem should have been picked up in the first place. I have known containers to be loaded into the wrong slot on a ship for discharge at the wrong port but this problem starts much earlier. Solve the problem of the stack into which the container was placed and then you can start to point fingers at a responsible party. The shipping line did correct their error in the incorrect discharge of the container at their own expense, not asking for any contribution even though they had the liberty of establishing who placed the container in the wrong stack in the first place.
Addendum to my last post: Manaadair, you say that “Most shipping lines are generally covered for such human errors via their ITIC or TT Clubs and therefore the SL should be able to compensate for the loss.” But what do you mean by, “compensate for the loss.”? Exactly what is the forwarder’s “loss”? The forwarder would say its damages included any additional costs incurred because the shipment was late. The shipping line and their insurer will defend, offering Q: 19.1 as a defense, saying, “We delivered the goods, what more do you want?”
But let’s assume the forwarder does “win” on the liability issue and the insurance carrier is ready to write the check. What is the amount of damages claimed by the forwarder and what is the amount the shipping line’s insurer will agree to pay?
In addition to damages that were the proximate result of the shipping line’s negligence, the forwarder will claim damages for lost future business from his customer who fired him because of the late shipment. The shipping line will defend by saying prospective damages are unrecoverable, because they are speculative and there is no guarantee the customer would not have fired the forwarder for some other reason, or simply because they got a better rate from another forwarder.
This is why it is important not only to analyze these types of cases solely on where liability lies, but what are the damages that can reasonably be expected to be recovered if liability is proved.
Also, is there a mediation clause in the shipping line’s contract. Is there an arbitration clause in the shipping line’s contract? While court actions are reasonably priced (but still not cheap), at least in the USA and other jurisdictions where there is easy access to local courts, the arbitration process through international arbitral bodies such as the ICC is very expensive by comparison. This is why many times Goliath likes arbitration clauses and David shuns them. But since Goliath is in the driver’s seat (or at least their captains are), the shipping lines will not negotiate an arbitration clause from their contract. Again, if we were talking about the diversion of a ship load of perishable cargo, or a thousand containers that are somehow damaged as a result of the shipping line’s negligence, arbitration, or even court action might not be economically feasible. So Goliath “wins”.
The bottom line is, unless the damages are substantial enough to warrant litigation, there is little the forwarder can do. Perhaps that’s why we forwarders are poor and the shipping companies are rich. It’s the Golden Rule of Business . . . The one with the gold rules.
Stan says, “I think no chance( sorry” . . . . Stan, if you believe that, back it up with facts and a legal basis as to why you believe the forwarder has “no chance”. Do you mean “no chance” as a matter of law, or “no chance” as a practical matter because of the David and Golieth syndrome?
Of course we all know about David and Goliath, but the question Manaadair actually asked was whether or not a shipping line could hide behind their contract “Q” clauses to escape liability. I say no, because this type of situation is clearly not covered in the “Q” clauses, since this is pure and simple negligence – a paperwork error. The issue is who made the mistake – who was negligent?
Manaadair, who issued the bill of lading to client B with an additional container belonging to client A? That is important, because I believe that is the party who is legally culpable for negligence.
This is a legal question, not a question as to whether or not it is cost effective for the forwarder to sue in a court of law if the shipping company simply takes a hard line and says, “So sue me.” We all know that in a situation like that, Golieth will “win” even if they if legally they are wrong.
With regard to “A Shipping Line” comment about whether the booking was taken over the phone or confirmed by email: As a matter of law, oral contracts are just as binding as written contracts; the only difference is the manner in which the terms of the contract are set forth are proved. In this case I see no problem proving an oral contract existed, so I don’t see this as an issue.
Willis says, “In regard to the delivery time, my first thought was whether or not the cargo was perishable and lost. If so, they could certainly make a claim to recoup the cost of the product and moving costs.”
This concern certainly speaks to the damages issue, but is not dispositive of the liability issue, which must be addressed before applying applicable damages.
I believe liability is clear with whoever issued the incorrect bill of lading to Client B, which included one container of Client A and causing Client A’s container to go to Bremerhaven in stead of Doha.
Once liablitiy is established, all damages that proximately flow from this negligence are actionable in a court of law.
Verdict for the plaintiff.
Hi David, there seems to have been some miscommunication.. I have been advised that the bill of lading has been issued correctly to both the customers but the Doha container was routed incorrectly to Bremerhaven but eventually re-routed to Doha via Salalah.. I have amended the post accordingly..
Most shipping lines are generally covered for such human errors via their ITIC or TT Clubs and the SL should be able to compensate for the loss..
Well, that does put a different twist on it . . . everything turns on the facts. Different facts, different analysis and perhaps a different result. Since we no longer have the bill of lading mistake issue . . . which would have been huge, we are now back to the shipping line’s contract . . . I don’t believe paragraph Q: 20 applies to this factual scenario, but perhaps Q: 19.1 does . . .
Q: 19.1 states:
Q: 19.1 The Carrier may at any time and without notice to the Merchant:
(a) use any means of transport or storage whatsoever;
(b) transfer the Goods from one conveyance to another including transshipping or carrying the same on a Vessel other than the Vessel named on the reverse hereof or by any other means of transport whatsoever and even though transshipment or forwarding of the Goods may not have been contemplated or provided for herein; UNQ
The shipping line could take the position that paragraph 19.1 applied, whether by design or mistake. They would argue that it does not matter, that the goods were transshipped – they arrived at their destination, so their obligations are fulfilled.
Under that scenario, they might prevail in a legal action, however I believe it would depend on whether the judge rigidly applied paragraph 19.1 literally, or if he interpreted paragraph 19.1 to not include an obvious mistake by the shipping line. If I were the judge I would find the latter because I do not believe the intent of paragraph 19.1 is to relieve the shipping line of its duties of due care, but to protect itself in the event of circumstances that were beyond their control or that occurred in the normal course and scope of the shipping Process. So I were the judge, the plaintiff would prevail. But I am not the judge and the only way to determine the liability here would be in a court of law, which leads us back to David and Goliath and the issue of the amount of damages the court would find the shipping line liable for.
I think no chance( sorry
As with most legal cases a lot is dependent on how much money and legal clout each party has to back up their claims. Many freight forwarders are smaller companies with little money invested in a strong legal team where the SSL’s tend to be large corporations ready to defend themselves if necessary.
It is unfortunate that this forwarder had this problem however, in my experience logistics can be a very messy business and customers come and go for various reasons, many being related to situations completely out of the hands of the forwarder, for example truckers falling down or lack of equipment, etc. If your service is good customers come back when they realize that fact.
In regard to the delivery time, my first thought was whether or not the cargo was perishable and lost. If so, they could certainly make a claim to recoup the cost of the product and moving costs. These types of cases have been won on various occasions with or without a BL stating the above clauses.
I agree that this case is most unfortunate. A simple clerical error can result in thousands of dollars in added costs. When you compare the claim against what the carrier would have been earning in ocean freight then it’s no surprise that the carrier will do whatever it can to wriggle out of the situation. But it’s nearly always the line that ends up being asked to carry the can – irrespective of whether it’s their fault or not. Larger forwarders will usually use threatening tactics, such as they will take the rest of their business away, if the line doesn’t do what they ask. I am assuming here that we are talking about a smaller forwarder who doesn’t carry the weight of one of the big boys.
Getting back to this case, was the booking taken over the phone or confirmed by email? If it’s the former then there is no proof either way.
Hi “A Shipping Line” – a contract of carriage can be verbal or written.. Whether it was taken over the phone or email or edi, a contract was entered into between the shipping line and the forwarder and the shipping line in this case did not meet their contractual obligation.. Comments..??
One more thing I’d like to know. You say, “But in the case of the container that was originally bound for Doha but sent to Bremerhaven under a different bill of lading,” Who issued the “different bill of lading?” Bills of lading do not generate themselves, at least they don’t in our office.
Hi David, the different bill of lading refers to the bill of lading issued to client B with an additional container belonging to client A.. By the time both of them found that they had an extra container and 1 container less respectively, it was already too late..
This is a no brainer and falls outside the four corners of the shipping line’s contract, and is not a breach of contract, nor a circumstance which is covered by the contract, but is a case of pure and simple negligence by the shipping line. In other words, they messed up and will be held responsible for their messing up the cargo through their own mistsake.
Q 20 above, which I assmue is paragraph Q 20 of the shipping line’s contract with its customer (in this case the forwarder) states: “If at any time Carriage is or is likely to be affected by any hindrance, risk, danger, delay, difficulty or disadvantage of whatsoever kind and howsoever arising which cannot be avoided by the exercise of reasonable endeavours, (even though the circumstances giving rise to such hindrance, risk, danger, delay, difficulty or disadvantage existed at the time this contract was entered into or the Goods were received for Carriage) the Carrier may at his sole discretion . . . . ”
Note the operative words, “. . ..which cannot be avoided by the exercise of reasonable endeavours . . . “. The shipping line’s negligence is something that could have been avoided by the exercise of reasonable endeavors. But really, this is not a contract issue, it is a tort issue and the rules of negligence would apply unless there is a statute, law, rule or regulation exculpating the shipper from liability for its own negligence and mistake. Can anyone cite such authority?
Where do I stand shipped our belongings from Australia to Canada were told eta Nov 22 and its now Jan 2nd its still not here what can we do its crippled our family .no apology nothing just emails constantly with be excuses and dates.
Hello Lisa, did you send a full container or part of a container.. Did you use a freight forwarder or household goods removal company..?? What are they saying..??