Bill of Lading
Date and Cargo Quantity Statements
(Ship Figures - bill of lading discrepancies)
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When goods have been loaded on board of the vessel and signed bill of lading handed by the master to the shipper, such bill of lading begins its existence in a role of master’s receipt for shipper’s goods. The master’s signature on the bill confirms conformity of the quantity and quality of the cargo loaded with that description represented in bill of lading. If the master signs the bill knowing that the statement as to apparent quality and quantity of the goods or the date of shipment is incorrect, he makes the owners vicariously liable in fraud to anyone who suffers loss by relying on the presentation. Therefore an importance of great care on the part of ship’s master when signing the bill of lading can hardly be exaggerated.
Bill of lading defines mutual liabilities between the shipowner and the holder of bill of lading (the cargo owner), whereas contractual relations between the shipowners and the charterers documented in form of either time or voyage charterparty. Therefore if the charterers are not the cargo owners they are not the party to the bill of lading contract – thus theoretically have no influence over the provisions and statements represented in the bill of lading. On the other hand the charterers, while operating the vessel, have a direct command over the vessel and her master in commercial matters and therefore usually do have authority to insist on certain the provisions in bill of lading, even when they are not the cargo owners. This is a complex matter, but in very simplified form position of English law can be expressed in a way that the master is bound within definite limits to sign any bill of lading presented by the charterer, if the terms of the charterparty contract between the charterer and shipowner are not to be altered by this signature, or if altered, the shipowner shall not be exposed to greater liability than under the charterparty.
Moreover and very important, when the master issues a bill of lading containing cargo figures which he knows to be false, he issues dishonest bill and by doing so, makes fraudulent representation (see below) for which an action for deceit will most probably lie.
Standard Chartered Bank v Pakistan National Shipping Corporation & Anor (2) [1999] EWCA Civ 3028 per Evans LJ:
1. The judge [Cresswell J in Standard Chartered Bank v Pakistan National Shipping Corp [1998] 1 Lloyd’s Rep 684] began his judgment with the following paragraph, which I agree with and would entirely endorse - "Antedated and false bills of lading are a cancer in international trade. A bill of lading is issued in international trade with the purpose that it should be relied upon by those into whose hands it properly comes - consignees, bankers and endorsees. A bank, which receives a bill of lading signed by or on behalf of a ship owner (as one of the documents presented under a letter of credit), relies upon the veracity and authenticity of the bill. Honest commerce requires that those who put bills of lading into circulation do so only where the bill of lading, as far as they know, represents the true facts."2. This requirement of honest commerce is stringently enforced by the English Courts. If a false bill of lading is knowingly issued by the master or agent of the shipowner, and if the claimant was intended to rely on it as being accurate, did rely upon it and as a result of doing so has suffered loss, then the shipowner is liable in damages for the tort of deceit.
3. The rule in Derry v Peek (1889) 14 App Cas 337 applies, and it is no defence to the charge of knowingly making a false statement that the master or agent believed that he was justified in doing so or that in the circumstances no harm would result: Brown Jenkinson v Percy Dalton (London) Ltd. [1957] 2 Q.B. 621.
4. It follows from this that a bank which pays the seller the price of goods under a letter of credit against presentation of bill of lading which falsely records that the goods were shipped on the carrying vessel by the specified date, when they were not, has no difficulty in recovering damages from the shipowner sufficient to idemnify it against loss, whether or not it can obtain repayment from the seller.
Therefore when in some instances, the charterers require the master to sign bills of lading ‘for any cargo in such form as charterers direct’ the question of extent of such authority may be brought up. In Mendala III Transport v Total Transport Corp (The Wilomi Tanana)[1993] 2 Lloyd’s Rep 41, where 7 bills of lading were issued with a wrong date, it was held that ‘provided that the owners do not go so far as to issue fresh bills of lading and to do so in a form that is inconsistent with the charter-party or the instructions that have been given by the charterers … charterers cannot forbid the owners to correct an error in a bill of lading with the concurrence of the shippers or so as to protect themselves from a potential liability to a subsequent holder of the bill of lading’. Read more about master’s letters of protest here.
Another important practical and commercial problem of ship’s delay and liability for it, usually comes up when the master notes inconsistency in bill of lading as to the date or the cargo description (quality/quantity) and the shippers are reluctant to correct their representation. Upon completion of loading bill of lading quantity of crude oil or product loaded assessed by measurements done ashore, at the terminal. On the other hand ship’s figures ascertained on board by way of measurement of ship’s tanks and concomitant calculations done by especially appointed surveyor together wish responsible ship’s officer. These figures, obtained ashore and on board of tanker, as a rule, differ from each other. There are many factors contributing to these discrepancies such as superseded tables used by the terminal in the calculation of Bill of Lading quantities, inaccurate vessel experience factor, Cargo Custody transfer practices and the competency of Cargo Inspectors (see more in OIL CARGO LOSSES AND PROBLEMS WITH MEASUREMENT).
When ship’s measurements show less cargo than stated in bill of lading the charterers are facing potential liabilities for cargo shortage at the discharge port. Therefore they usually specifically provide in their voyage instructions for actions required from the owners and the master of the vessel in such circumstances. These instructions, normally subject to tolerable margin, because small discrepancy is practically inevitable, but sometimes not, disallow the master to sign bill of lading until he first communicate with the charterers. Similar but much more comprehensive wording one can find in EMV 2005 form voyage charter, cl.17 - Cargo Measurements, (below).
17.CARGO MEASUREMENT. (lines 291-315):
(a) Prior to loading, Master shall measure the on board quantities of oil cargo, water and sediment residues which are segregated in all holding tanks and slop tanks and those which remain in cargo tanks and, if requested, shall advise supplier(s) and Charterer of such quantities. After loading, Master shall determine the cargo quantities loaded, expressing these cargo quantities in barrels at standard temperature (60°F), using for such calculations the latest Manual of Petroleum Measurement Standards issued by the American Petroleum Institute (API MPMS) or similar standards issued by the American Society for Testing and Materials. A written tank-by-tank ullage report containing all measurements of oil cargo, water and sediment residues on board prior to loading and quantities of cargo loaded shall be prepared and promptly submitted by Master to Charterer.(b) If Master’s calculations of cargo loaded (oil, water and sediment residues on board excluded), after applying the Vessel’s Experience Factor (VEF), show any deficiency from the Bill of Lading figures, Master shall, if investigation and recalculation verify such deficiency, issue a Letter of Protest to supplier(s) (which should, if practical, be acknowledged) and shall advise Charterer of such deficiency immediately by electronic mail, telex or radio and thereafter shall send a copy of the Letter of Protest to Charterer. Vessel shall have on board sufficient historical information for the calculation of a VEF using the latest edition of the API MPMS. Master shall calculate and apply the VEF as so determined during all loadings.
(c) Prior to discharging, Master shall measure the quantity of each grade of cargo on board, expressing these quantities in barrels at standard temperature (60°F), using the same calculation procedures specified in Paragraph (a) of this Clause. Before and after discharging, Master shall cooperate with shore staff to ascertain discharged quantities. Vessel shall be obliged to discharge all liquid oil cargo and, if ordered by Charterer, any residues of oil cargo, water and sediment. Vessel’s just-mentioned obligation shall not in any way be qualified or limited by any purported custom of the trade which is based on a stated in-transit loss or which otherwise would excuse Vessel from discharging all liquid cargo and residues.
(d) An inspector may be employed by Charterer at its expense to verify quantities and qualities of cargo and residues on board Vessel at both loading and discharging port(s) and/or place(s). If Vessel is equipped with an Inert Gas System, depressurization of tanks to permit ullage measurements shall be allowed in accordance with the provisions of the most recent Inert Gas Systems for Oil Tankers publication issued by the International Maritime Organization (IMO). Any time used solely for such inspections and/or measurements shall count as laytime or, if Vessel is on demurrage, as time on demurrage.
Usually communication between all the parties concerned, i.e. the shippers, the charterers, the brokers and the owners takes time, sometimes many hours, especially if loading has been completed on weekend or after office hours. The owners can avoid liability for delays related to such communication and disputes over the ship/bill of lading discrepancies if they show that the master acted reasonably and he did not cause or contribute to the delay by any unreasonable act or omission on his part.
In Boukadoura Maritime Corp. v Societe Anonyme Marocaine de l'Industrie et du Raffinage (The Boukadoura) [1989] 1 Lloyd’s Rep 393 Evans J gave extensive review of modern law on respective obligations of all parties concerned:
The first is that contractual relations between the shipowner and charterer remain governed by the charter-party notwithstanding the issue of a bill of lading to a third party shipper.
Secondly, although the shipper is an independent third party, for the purposes of the charter-party he should be regarded as the agent through whom the charterer has performed his undertaking to load cargo upon the vessel (see for example The Mediolanum, [1984] 1 Lloyd’s Rep 136 at p 140, per Lord Justice Kerr).
Thirdly, when the shipowners through the master or their agents issue a bill of lading they undertake responsibilities and potential liabilities to third parties which are independent of the charter-party contract. If the document contains a false statement knowingly or recklessly made, then there is a potential liability in fraud: Brown Jenkinson & Co Ltd v Percy Dalton (London) Ltd, [1957] 2 Lloyd’s Rep 1; [1957] 2 QB 621.
Fourthly, whereas in earlier times the bill of lading may have been regarded as a negotiable receipt issued as a favour by the shipowner for the convenience of the charterer, the commercial reality today is that the shipowner will invariably be required, and will expect to have to issue a bill of lading, which will or may be held by third parties other than the charterer. (It is noteworthy that in the present case a bill of lading was required, notwithstanding the special delivery provisions. The shippers were to obtain payment for the cargo from the charterers through the letter of credit machinery operated by their respective banks.)
Fifthly, it is for practical purposes inevitable that the liabilities under the bill of lading contract will differ to a greater or lesser extent from those undertaken by the shipowner under the charterparty. The differences may result from different contractual terms of, in English law at least, from the operation of the doctrine of estoppel.
This elaborate statement gives good guidance to both parties.
It seems that, whenever possible and if agreed between parties, in cases when for some reasons dispute over ship’s/bill of lading figures is likely to involve a considerable delay of the vessel upon completion of loading, the best solution would be to leave the port without signing of bill of lading but give an authorisation to the agent to sign bill of lading on behalf of the master when figures will be eventually agreed.
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