Explanatory notes

Basic features

Face of the document

Standard terms and conditions

• Clause 1 - Definitions
• Clause 2 - Carrier’s Tariff
• Clause 3 - Law and Jurisdiction
• Clause 4  - Methods and Routes of Transportation
• Clause 5 - Stowage
• Clause 6  - Hindrances, etc. affecting Performance
• Clause 7 - Lighterage
• Clause 8 - Loading, Discharging and Delivery
• Clause 9 - Optional Ports of Discharge
• Clause 10 - Liability for carriage between Port of Loading and Port of Discharge
• Clause 11 - Liability for Pre- and On-Carriage
• Clause 12 - Amount of Compensation
• Clause 13 - Delay, Consequential Loss, etc.
• Clause 14 - Defences and Limits for the Carrier, Servants, etc.
• Clause 15 - Carrier’s Responsibility
• Clause 16 - Shipper’s Responsibility
• Clause 17 - Shipper-packed Containers, etc.
• Clause 18 - Dangerous Goods
• Clause 19 - Return of Containers
• Clause 20 - Freight and Charges
• Clause 21 - Lien
• Clause 22 - General Average
• Clause 23 - Both-to Blame Collision Clause
• Clause 24 - U.S. Trade

 

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Basic features

As will be seen, LINEWAYBILL provides a mechanism whereby it can also be used as a through transport document. This is consistent with CONLINEBILL and, as commercial practice shows, although mainly designed for port-to-port shipments, the CONLINEBILL is often used as a through transport document.

There is no universal legal definition of the term “through transport” although it is normally distinguished from other related types of contracts such as “multimodal transport” as a contract for the unimodal carriage of goods which may be performed by the contracting carrier alone or by sub-contracting carriers. The principle is the same in multimodal transport but there the carrier will perform the contract using at least two different modes of transport.

When the carrier issues a through transport document he may undertake to arrange the pre- and on-carriage as the shipper’s agents only and thus exclude any liability on his part for loss or damage occurring to goods during that part of the transport - or he may contractually assume responsibility vis-a-vis the cargo interests for the entire voyage.

LINEWAYBILL follows the basic principle of liability in shipping, i.e. that the carrier shall only be liable for fault or negligence during the part of the transport he performs himself. For sea transport this principle is firmly embedded in the Hague and Hague-Visby Rules where the carrier is entitled to exclude liability for loss, damage or delay to the cargo beyond “tackle-to-tackle”. LINEWAYBILL is thus consistent with CONLINEBILL but distinctly different from MULTIDOC 95 where the carrier assumes responsibility for the entire transport.

Face of the document

The face of LINEWAYBILL by and large follows the traditional BIMCO layout which, coupled with the well tested reservation “weight, measure, marks, numbers, quality, quantity, and contents unknown”, clarifies the particulars furnished in LINEWAYBILL for which the carrier assumes responsibility and those for which he does not.

One small amendment has been made, however, which is that a new box has been provided where the carrier acknowledges receipt of the total number of containers, packages or units received. This should make it clear that in the event of containerised cargo being shipped, the carrier only acknowledges receipt of the actual number of containers received and not the contents.

Further, it will be noticed that “Line-waybill” has been made subject to the CMI Uniform Rules for Sea Waybills as adopted by the Comité Maritime International (CMI) in order to remedy the lack of international rules governing sea waybills.

Thus, these Rules form the general framework of LINEWAYBILL although, in the event of a conflict of conditions the Hague or Hague-Visby Rules will apply.

In order to meet the requirements of Article 24 of the ICC Uniform Customs and Practice for Documentary Credits (UCP 500) the face of the non-negotiable sea waybill must indicate the name of the carrier and have been signed or otherwise authenticated by:

• the carrier or a named agent for and on behalf of the carrier, or
• the master or a named agent for and on behalf of the master.

Accordingly, the name of the carrier should be stated on the dotted line appearing immediately after the words “Signed for”.

A so-called “Right of Control” provision has been included on the face of “Line-waybill” according to which the shipper shall be    entitled to transfer the right of control of the cargo to the consignee.

Despite the fact that the right of control provision is already provided in the CMI Uniform Rules for Sea Waybills, the sub-committee was of the opinion that specific attention should be given to this provision as it is a requirement for the shipper in exercising the option to transfer right of control of the cargo that it be noted on the waybill. This could, for instance, be done in the following way;  “I, the Shipper (named in the Shipper Box on the face of this waybill) hereby transfer the right of control of the cargo carried under this waybill to the Consignee (named in the Consignee Box on the face of this waybill).

The sub-committee did not find it necessary to state specifically on the face of LINEWAYBILL that, where the shipper has exercised his option to transfer right of control to the consignee, then the consignee shall be the only party to give the carrier instructions in relation to the contract of carriage.

This clearly follows from the underlying CMI Uniform Rules for Sea Waybills.

Standard terms and conditions

Clause 1 - Definitions

In line with other BIMCO standard documents LINEWAYBILL contains a set of definitions. For the purpose of “Line-waybill” only two definitions have been listed, i.e. that of the “Carrier” and the “Merchant”. Unlike the definition of “Carrier” in, for instance, MULTIDOC 95 which can mean either the performing carrier or the MTO himself, the “Carrier”, for the purpose of the LINEWAYBILL, means the one on whose behalf the document has been signed.

Clause 2 - Carrier’s Tariff

This Clause incorporates the terms of the carrier’s tariff to the extent that they are not inconsistent with the terms and conditions of LINEWAYBILL.

Clause 3 - Law and Jurisdiction

To avoid a number of potentially im-practical jurisdictions becoming involved in a particular case, this Clause simply provides that disputes arising under LINEWAYBILL shall be determined at the place where the carrier has his principal place of business.

It should be observed, however, that some jurisdictions by law do not recognise limitations in the claimant’s right to instigate court proceedings against the carrier at other places than where the carrier has his principal place of business.  

Clause 4  - Methods and Routes of Transportation

In accordance with applicable background law for carriers engaged in liner service, this Clause merely sets out the rights of the carrier to perform the transport in a reasonable manner using any reasonable means, methods and routes. 

Clause 5 - Stowage

In sub-clause (a) the words “or similar articles of transport used to consolidate goods” have been added to the enumeration of containers, transportable tanks, flats and pallets. This has been done to accommodate possible future technical innovations in the methods of consolidating goods.

Sub-clause (b) provides the carrier with an express right to carry containers, trailers and transportable tanks on deck without having to specifically clause LINEWAYBILL, in which case the usual bill of lading liabilities will apply.

Clause 6  - Hindrances, etc. affecting Performance

Sub-clause (a) sets the general standard, providing that the carrier has to use reason-able endeavours to complete the performance of the contract as evidenced by LINEWAYBILL. What  is reasonable has to be decided by reference to the facts of each individual case.

A specific provision has been included to the effect that where the merchant has not taken delivery of the goods within the time designated by the carrier, the carrier shall be entitled to put the goods in safe custody on behalf of the merchant at the latter’s expense and, if not taken delivery of, to sell the same privately or by auction within 14 days.

A number of contracts in the liner industry provide the carrier with a right to sell the goods within a reasonable time after the merchant should have taken delivery of such goods which, in practical terms, means within a period of 7 to 28 days depending on the value of the goods and the storage costs involved.

However, to avoid potential disputes as to what constitutes a reasonable time, a specific time limit of 14 days has been provided in LINEWAYBILL.

Clause 7 - Lighterage

This Clause is self-explanatory.

Clause 8 - Loading, Discharging and Delivery

This Clause is self-explanatory.

Clause 9 - Optional Ports of Discharge

This Clause is self-explanatory.

Clause 10 - Liability for carriage between Port of Loading and Port of Discharge

This is the recently revised BIMCO General Clause Paramount. The Clause takes into account that the Hague-Visby Rules shall be the recognised liability regime covering the particular contract of carriage.

The Paramount Clause has the following main components:

1. The Hague-Visby Rules as enacted in the country of shipment shall apply to the contract of carriage.  If no such enactment is in place the corresponding legislation of the country of destination shall apply.
2. However, in those trades where the Hague-Visby Rules are not applicable mandatorily or otherwise, the Hague Rules (when compulsorily applicable in the country of shipment or destination) shall apply.
3. In all other trades, i.e. where neither the Hague-Visby Rules nor the Hague Rules apply compulsorily, the terms of the Hague-Visby Rules shall apply.
4. The SDR Protocol 1979 which replaces the old limitation amount of FFR 10,000 per package or unit, or FFR 30 per kilo as provided in the Hague-Visby Rules by 666.67 SDR’s per package or 2 SDR’s per kilo shall apply to the contract of carriage to the extent possible.   

Since LINEWAYBILL is based on the Hague-Visby Rules which is a globally accepted liability regime for carriage of goods by sea, there is no specific need for the carrier to make prior consultation with the relevant P & I Club to obtain its prior approval that cover will be provided when contracting on LINEWAYBILL. 

Clause 11 - Liability for Pre- and On-Carriage

This Clause sets out in clear terms what applies in a number of through transport arrangements, i.e. that the carrier acts as a principal only when he has control over the goods, whereas he acts as agent for the shippers when entering into contracts with other carriers for the pre- and on carriage.

Further, where the carrier is only acting as an agent to the shipper, no liability will be assumed by the carrier for the pre-shipment and on-carriage. This is consistent with what is provided in the CONLINEBILL.

Clause 12 - Amount of Compensation

Clause 12 deals with the valuation of the goods, the amount of compensation, and the rules regarding limitation of liability.

Sub-clauses (a) and (b) largely mirror the provisions of the Hague-Visby Rules Art. IV 5 (b) except that sub-clause (a) provides that the compensation shall be calculated by reference to the value of the goods at the place and time they are delivered to the merchant.  This corresponds to the fact that the place of delivery may be the actual Port of Discharge as set out on the face of LINEWAYBILL or the place of delivery by the on-carrier.

As regards the amount of compensation a reference is made in sub-clause (c) to Clause 10 (Liability for carriage between Port of Loading and Port of Discharge). Although Clause 10 does not set out a specific limitation amount it does give effect to the Protocol signed at Brussels on 21 December 1979 (“The SDR Protocol 1979”) where possible. Therefore, the limitation amount that the carrier will be able to adhere to, unless he has agreed to a higher compensation, will be 666.67 SDR’s  per package or 2 SDR’s per kilo.

Clause 13 - Delay, Consequential Loss, etc.

Liability for delay is not expressly referred to in the Hague-Visby Rules and therefore some jurisdictions, although applying the Hague-Visby Rules, may impose upon the owners liability for delay. Sub-clause (e) ensures that, in those circumstances, the Carrier shall also have a right to limit such liability. 

Clause 14 - Defences and Limits for the Carrier, Servants, etc.

Sub-clause (b) makes it clear that the Carrier shall not be able to limit his liability in those circumstances when loss or damage has been caused by his personal act or omission done with the intent to cause such loss or damage or recklessly and with knowledge that loss or damage would probably result.

Sub-clause (c) is a so-called “Circular Indemnity” Clause which prescribes the merchant to undertake that in his contract with his customers no claim be made against the sub-contractor.  Should a claim nevertheless be made, as a result of which the sub-contractor claims against the carrier, then the merchant shall indemnify the carrier against all consequences thereof.

Sub-clause (d) purports to protect the servants and agents whose services the carrier has made use of in order to perform the transport contract and thereby indirectly the carrier himself by providing that the same protection which applies to the carrier shall also be afforded to such servants and agents whether claims made are founded in contract or in tort.

The above mentioned provision is by and large the same as the “Himalaya” Clause found in other transport documents.  However, it is uncertain, at least in some jurisdictions which apply Anglo-American law, whether the protection given under the “Himalaya” or similar provisions also applies to independent contractors as distinguished from servants or agents. In through or multimodal transport arrangements this is of particular importance as the carrier often engages various sub-con-tractors in order to perform the transport contract. Therefore, with a view to protecting such sub-contractors from claims from third parties it is stipulated that in entering into the transport contract the carrier does so not only on his own behalf but also as agent or trustee for such persons.

Clause 15 - Carrier’s Responsibility

This Clause provides for the rules of prima facie evidence of the receipt of the goods in line with Art. III 3 of the Hague-Visby Rules.

Clause 16 - Shipper’s Responsibility

The wording of this Clause corresponds with other documents used in the liner trade and emphasizes the importance of the shipper providing accurate details of the goods to the carrier at the time such goods are to be taken in charge by the carrier. This is achieved by making the shipper liable under the principle that he is deemed to have guaranteed to the carrier the accuracy of all information given with respect to the goods and, in particular, their dangerous character.

The shipper’s duty to indemnify the carrier against loss resulting from wrong information in these respects is not limited to cases where inaccurate information is given, but also applies when the information is inadequate. The fact that the carrier may proceed against the shipper does not in any way prevent him from holding other persons liable as well, for instance, under the principle that anyone who tenders goods of a dangerous nature to the carrier under the applicable law could become liable in tort.

Clause 17 - Shipper-packed Containers, etc.

This Clause provides the basis of liability as regards FCL packed containers. In line with common practice, the carrier accepts no responsibility for loss or damage caused by the negligent filling, packing or stowage of the container or caused as a result of the contents being unsuitable for carriage in containers.

In accordance with general practice in the container trade, it will be seen that the Clause also excludes liability on the part of the carrier for loss or damage due to the unsuitability or defective condition of the reefer equipment or trailers supplied by the merchant.

Clause 18 - Dangerous Goods

This Clause sets out in clear terms that the shipper shall comply with mandatory national law or international conventions as regards shipment of goods of a dangerous nature.

In accordance with the Hague-Visby Rules Art. IV 6, the Clause provides the carrier with various remedies to dispose of the dangerous goods in the event the consignor fails to provide the necessary information on such goods and of which the carrier is unaware. In addition, the consignor shall be liable for and hold harmless the carrier for all loss, damage, delay or expenses that may arise from the carriage of dangerous goods.

Clause 19 - Return of Containers

This Clause, which is to be found in a number of private forms of bills of lading or multimodal transport documents, is meant to take into account the increasing problem of containers, pallets or similar articles of transport received by the consignor or consignee for packing and unpacking not being returned to the carrier in the same good order and condition as when handed over or which may not be redelivered at all. The Clause operates as follows:

Sub-clause (b) sets out the basic responsibilities of the consignor and the consignee to redeliver within the time prescribed in the carrier’s tariff, containers, pallets or similar articles of transport to the carrier in a clean state and in the same good order and condition as when received, normal wear and tear excepted.

Sub-clause (c) (i) deals with the loading side of the transport, i.e. the consignor’s liabilities as a result of his non-compliance with the basic responsibilities under (b). As will be seen, the Clause seeks to extend the coverage of the contract of carriage as regards the consignor’s responsibilities for containers, pallets or similar articles of transport during the period between handing over to the consignor and the return to the carrier of such articles, which would otherwise not be covered by the contract of carriage.

Sub-clause (c) (ii) deals with the discharging end of the transport, i.e. the consignee’s liabilities as a result of his non-compliance with the responsibilities under (b). It should be noted, however, that there may be no legal basis to extend the coverage of the contract of carriage to a third party, such as the consignee, who has no contractual link with the carrier. Therefore, since it may prove to be difficult, at least in some jurisdictions, to hold the consignee responsible, not being a party to the contract of carriage, sub-clause (ii) holds the consignor and the consignee jointly and severally liable for non-compliance with the provisions of (b).  

Clause 20 - Freight and Charges

This is a traditional clause which provides the carrier with a right, without consulting the merchant, to inspect the contents of containers, trailers or similar articles of transport for the sole purpose of verifying the freight basis.

Clause 21 - Lien

This Clause is self-explanatory.

Clause 22 - General Average

As will be seen and in accordance with other general average clauses, general average shall be adjusted at any port or place determined by the carrier. 

Clause 23 - Both-to Blame Collision Clause

This is a standard clause forming part of almost every standard document issued by BIMCO.

Clause 24 - U.S. Trade

This Clause provides for the application of the U.S. Carriage of Goods by Sea Act, 1936 throughout the carriage by sea and the time that the goods are in the actual custody of the Carrier or of any sub-contractor whose services he makes use of in order to perform the transport. The Clause further makes it clear that in the event the U.S. COGSA applies, the carrier shall in no event become liable for loss of or damage to the goods in an amount exceeding the statutory limits, i.e. USD 500 per package or customary freight unit.

Copyright
Copyright in LINEWAYBILL Liner Sea Waybill is held by BIMCO.

(Printed in BIMCO Bulletin No. 2, 1998)