April 19, 2023MS Susanne

1

M/S Susanne • The Danish ship M/S Susanne on a voyage from Copenhagen

to Tromsø

ExporterNeptunShip owner

Baltime t/c

Gencon 1994v/c

April 19, 2023MS Susanne

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M/S Susanne

• In Chopenhagen 3 bills of lading are signed by Hanssen, agent of Neptun

EksportørHansenNeptun

Agency contract TrampBill of lading NMC 325

v/c Gencon 1994

April 19, 2023MS Susanne

3

M/S Susanne

On delivery at the port of Tromsø:

ExportersHansenNeptun

Agency

TrampBill of Lading

Importers

Sales agreement

Ship Owner

t/v

Damage

The claim:

• The importer of the cement claimed compensation for the damages from

• Neptun– and

• The owner of the vessel

• What could be the legal bases for the claims?

Tramp Bill of Lading NMC § 325

Govern the conditions for the carriage and delivery of the goods as between the carrier and a third party holder

Provisions which are not included in the bill of lading can not be invoked…unless the b/l includes a reference to them

What legal regime? § 325.2 – see § 253

April 19, 2023MS Susanne 5

NMC § 253 Charter Party Trade

If a b/l has been issued under a charterparty chapter 13 applies to the b/l if it governs the legal relationship between the carrier and the holder of the b/l

April 19, 2023MS Susanne 6

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The bills of lading

Common content:”In apparent good order and condition””Subject to terms and conditions of

charter party (where/when signed unknown to us)”

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Who is who? § 251(chp13)

NeptunCarrier (contractual carrier)

Ship ownerSub-carrier (actual carrier)

Exporter/SellerSender (cif seller)Shipper (delivers the goods)

Importer Receiver

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Main issue

The importer of the cement claim compensation for the damages fromNeptun (contractual carrier)The ship owner (sub-carrier)

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Legal questions

1) Is the bill of lading agreed between 1.1) the sender 1.2) the receiver and Neptun The ship owner

2) If yes, is the c/p agreed between the importer and Neptun/the ship owner?

Question of interpreting § 325

3) Are the carrier/sub carrier liable for the damages?

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Is the b/l agreed between Neptun and the sender?

Gencon 1994 is regulating the relationship between Neptun and the exporter (charterers)

Gencon clause 10: Bills of lading shall be signed by the Owners agent provided Written authority to the agent With copy to charterers

Not fulfilled

Conclusion: The b/l is not agreed between Neoptun and the senders

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Can the bill of lading still be valid in relation to the holder?

The holder is the importer.In good faithA question of authorization

NMC § 338:The voyage carrier shall issue a shipped bill of lading on request.

Issues by: ”the voyage carrier or the master or the person otherwise authorized…”

Is Hanssen authorized?

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Authority

About the intermediary's power to bind the principal Common law: The agent's power is derived from

the internal relationship. The power to bind is tied to the mandate

Nordic law: The message to a third person is the basis of

the agent's contracting powers If the agent exceeds the authority given him in the

internal relationship, the principal still becomes bound by virtue of the message to the third party, if the third party is in good faith

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Does Hansen have powers to issue a b/l on Neptuns behalf?

Not regulated in the NMC, but in the Contracts Act 31 May 1918, nr. 4, chp. 2

Question: what did the importer have reason to believe? Neptuns standard documents Agent for 5 years Normal procedure Risk on Neptuns side

Conclusion: Hansen have powers to bind Neptun

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What about the ship owner?

NMC § 286:The sub-carrier is liable for such part of the carriage as he or she performs, pursuant to the same rules as the carrier

The wording: ”same rules” Pursuant to the same rules Liable when carrier is liable

The good solution for description liability? No legal base to claim the sub-carrier for

description liability

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A digression

Assume the b/l was signed by the master:NMC § 137: The masters position of

authority will bind the ship owner

NMC § 295: A b/l signed by the master shall be deemed to have been signed on behalf of the carrier (Neptun)

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Does the b/l include a reference to the Gencon 1994?

NMC§ 292 3 and § 325: Provisions of the chartering agreement which are

not included in the b/l can not be invoked unless the b/l includes a reference to them.

”Includes a reference to them” General reference not enough.

If yes, Gencon has no impact on the question on misdiscription

The bill of lading and the NMC are applicable.

The damages

Bill of lading I and II (misdescription)Bill of lading III (transport damage)

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The liability

Neptun/Contractual carrier: Transport liability §§ 274 Liable for the sub carrier § 285Bill of lading § 299: The carrier has loaded

the goods as stated in the bill of lading

The ship owner/Sub carrier .§ 274 flg jfr. § 286 “liable for such a part of

the carriage as he or she performs, pursuant to the same rules as the carrier.“

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Bill of Iading I

Breach of sales contract. Invisible for others than experts”In apparent good order and condition,

weight etc unknown”.The cargo is in accordance with the

description”. No “damage” according to the NMC

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Bill of lading II

”5 bags torn” 15 out of 1000 bags delivered empty This means that 10 bags is damaged during

transport. BUT: 10 bags was delivered empty by the

sender, and overseen by the master during inspection

Section 298 – a duty to inspect or make a reservation

What about the 5 bags torn?

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Bill of lading II

5 bags torn/empty – no liability Neptun: 10 bags empty:

Section 299 third paragraph Implied transport liability/description liability Not possible to proof himself innocent Neptun is liable as contractual carrier

The ship owner: §§ 274 -2 76 not applicable, the damage took

place before the carriage stared Not liable

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Bill of lading III

”A few wet bags” The cement in 500 bag totally damaged

because of water Typical transport damage Both Neptun and the Ship owner might be

liable: Neptun as contractual carrier with liability for sub

carrier, § 285 The ship owner as sub carrier, according to § 286

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The main rule on liability; NMC § 275

NMC § 275: Negligence with a reversed burden of proof

NMC § 276: Exemptions 1) Fault or neglect in the navigation of the ship or 2) FireMC § 276, second paragraph: not if ”initial

unseaworthiness” NMC § 275 applies – both are liable But, is § 276 nr. 1applicable ?

Is § 276 nr applicable?

Not liable if ”fault or neglect in the navigation or management of the ship”

Navigation of the vessel

Steering and manoeuvring, response to signals etc.

Management of the ship

The ship's condition, manning and equipment Borderline cases

Was the act or omission primarily in the interest of the cargo or the ship?

ND 1975.85 NSC Sunny Lady

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