Lloyd's Maritime and Commercial Law Quarterly


FMB Reynolds

Fimbank v KCH Shipping
The Hague Rules imposed, for contracting states, terms upon the contract of carriage by sea under bill of lading, most of which were intended for the protection of shippers against carriers, it being thought that the latter often introduced provisions which put them in an unacceptably favourable position in the event of dispute. Such provisions were, however, in their wording usually directed only to the carrying voyage. Consequent on this, Art.II of the Rules applies them to the “loading, handling, stowage, carriage, custody care and discharge of the goods”. In fact the first requirement of the Rules, relating to the seaworthinesss of the ship, can only with difficulty be brought within the word “loading”, though it can be said that the effect of its breach would normally take effect in respect of the cargo during the voyage. The second, relating to the issue of a bill of lading, should refer only to a time after loading is complete and can be more easily accommodated within that word. This limited operation of the Rules is in accord with statements at quite early meetings of the proponents of the Rules, for example that “It had not been intended in this international convention to consider anything other than the time the goods were on board the ship”.1
What is not referred to in the Rules is the delivery of the goods, other than the use of the word “delivery” in Art.III.6, principally in respect of the commencement of the one-year time bar. Yet it is accepted that the general rule for contacts of carriage under bills of lading—which may be an implied2 or, when the bill of lading refers to it, express term—is that the carrier must deliver the goods only against surrender of the relevant bill or bills of lading. This duty is well understood (if not always observed) internationally, and is certainly a major part of the contract of carriage of goods by sea. Yet it does not come within the operations covered by Art.II, which stop at discharge from the vessel—unless of course, as is possible in some circumstances, the discharge can also rank as delivery. Thus, there is a gap in the Rules between discharge and delivery. This can be filled by express provisions of the contract, as is specifically envisaged in Art.VII, which preserves the right to enter into other arrangements “with respect to the handling of goods … subsequent to


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