category: literaturenote citekey: glassfreightforwardingmultimodal2013 title: Freight Forwarding and Multi Modal Transport Contracts authors: "Glass, David" year: 2013 date: 2013-00-00 2013 doi: 10.4324/9781315878140 url: "https://doi.org/10.4324/9781315878140" zotero_key: CHBDIGJS zotero_storage: QD6BTTBP collections: transpordi_planeerimine folder: 001_artiklid firstAuthor: "Glass, David"

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FREIGHT FORWARDING AND MULTIMODAL TRANSPORT CONTRACTS

SECOND EDITION

MARITIME AND TRANSPORT LAW LIBRARY

Freight Forwarding and Multimodal Transport Contracts 2nd edition by David A. Glass (2012)

The Law of Yachts and Yachting by Filippo Lorenzon and Richard Coles (2012)

Marine Insurance Clauses 5th edition by N. Geoffrey Hudson, Tim Madge and Keith Sturges (2012)

Pollution at Sea: Law and Liability Edited by Barı¸s Soyer and Andrew Tettenborn (2012)

Contracts of Carriage by Air 2nd edition by Malcolm Clarke (2010)

Place of Refuge: International Law and the CMI Draft Convention by Eric Van Hooydonk (2010)

Maritime Fraud and Piracy by Paul Todd (2010)

The Carriage of Goods by Sea under the Rotterdam Rules Edited by D. Rhidian Thomas (2010)

International Carriage of Goods by Road: CMR 5th edition by Malcolm Clarke (2009)

Risk and Liability in Air Law by George Leloudas (2009)

The Evolving Law and Practice of Voyage Charterparties Edited by D. Rhidian Thomas (2009)

The International Law of the Shipmaster by John A. C. Cartner, Richard P. Fiske and Tara L. Leiter (2009)

The Modern Law of Marine Insurance Volume 3 Edited by D. Rhidian Thomas (2009)

The Rotterdam Rules: A Practical Annotation by Yvonne Baatz, Charles Debattista, Filippo Lorenzon, Andrew Serdy, Hilton Staniland and Michael Tsimplis (2009)

Contracts of Carriage by Land and Air 2nd edition by Malcolm Clarke and David Yates (2008)

Legal Issues Relating to Time Charterparties Edited by D. Rhidian Thomas (2008)

Bills of Lading and Bankers' Documentary Credits 4th edition by Paul Todd (2007)

Liability Regimes in Contemporary Maritime Law Edited by D. Rhidian Thomas (2007)

Marine Insurance: The Law in Transition Edited by D. Rhidian Thomas (2006)

Commencement of Laytime 4th edition by Donald Davies (2006)

General Average: Law and Practice 2nd edition by F. D. Rose (2005)

War, Terror and Carriage by Sea by Keith Michel (2004)

FREIGHT FORWARDING AND MULTIMODAL TRANSPORT CONTRACTS

SECOND EDITION

DAVID A. GLASS

LLM, FHEA

Senior Lecturer Cardiff Law School

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Informa Law from Routledge is an imprint of the Taylor & Francis Group, an Informa business

First Edition, 2004 Second Edition, 2012

British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library

ISBN: 978–1–84214–595–1

Reprinted material is quoted with permission. Although every effort has been made to ensure that all owners of copyright material have been acknowledged in this publication, we would be glad to acknowledge in subsequent reprints or editions any omissions brought to our attention.

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of Informa Law. Copyright is held by the author. This edition published by Informa Law. For reprints and permissions contact the Informa Law.

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This book contains information from reputable sources, and although reasonable efforts have been made to publish accurate information, the publisher makes no warranties (either express or implied) as to the accuracy or fitness for a particular purpose of the information or advice contained herein. The publisher wishes to make it clear that any views or opinions expressed in this book by an author is their personal view and opinion and does not necessarily reflect the views/opinions of the publisher.

Lloyd's is the registered trade mark of the Society incorporated by the Lloyd's Act 1871 by the name of Lloyd's.

To my wife Jane

PREFACE TO SECOND EDITION

In the eight years since the first edition of this book there have been some major developments alongside a gradual evolution. The major developments include the adoption by the United Nations of the Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (The Rotterdam Rules) and the adoption by the EU of the Rome I and Rome II Regulations. Whilst the Rotterdam Rules are not yet in force, their adoption now forms a major part of the current discourse across many of the areas covered by this book and their potential impact, particularly on the liabilities and documentation used by parties to multimodal contracts, is charted at various points. The new EU legislation is in addition to the ever burgeoning case law in the areas of conflicts of law and jurisdiction. Whilst only a limited account of these areas is possible, it is hoped that a sufficient guide is given to enable the overall developments to be appreciated in the practical context of the forwarding and multimodal transport industry.

From the evolutionary perspective there have been subtle rather than major changes to the development of documents used in the industry, at least as embodiments of contract terms. In terms of form, the change towards electronic documentation continues apace although still mainly in terms of the development of a paper-free environment rather than one that is entirely paperless. However, this book is focused on the development of standard terms affecting legal liability in which the picture is more one of evolution than revolution. Radical change has not so far affected the main terms used in English practice, although more attention must now be given to the continuing development in respect of logistics contracts in which comprehensive and standardised sets of terms are making more of an appearance. The reader will find that, in many cases, whilst new standard terms have come to replace older ones, they still tend to reflect or build on older forms. Consequently, whilst the book endeavours to reflect standard forms currently in use, reference is still made to some of the older forms, which, whilst no longer in everyday use, may continue to provide a useful comparator for appropriate wording. This is especially true of the ICF (Intercontainer-Interfrigo) terms, which, despite the demise of the company, still provide a major example of comprehensive terms available for international rail container carriage. A particular difficulty, however, in reflecting current usage, is the reluctance of some organisations and companies to make their terms available for discussion in a book such as this. This is unfortunate, since a discussion based on concrete examples can perhaps be of assistance to effective drafting. Special thanks, therefore, are due to those organisations and

PREFACE TO SECOND EDITION

companies that have been willing to let me have sight of and reproduce their terms and conditions.

Among the more notable of the many cases decided since the first edition are: Datec Electronic Holdings Ltd v. United Parcels Service Ltd,with a robust view taken by the House of Lords of a contract of carriage despite limitations on acceptable goods sought to be imposed by the contractor; Jet2.Com Limited v. Blackpool Airport Limited,which reflects the increasing importance of co-operation duties in the context of long-term business collaboration of the type seen in contract logistics; Geofizika DD v. MMB International Ltd Greenshields Cowie & Co Ltd (Third Party) (The ''Green Island'') where the Court of Appeal has delivered a salutary lesson to forwarders about the potential danger in giving a warranty to insurers of under deck shipment and Röhlig (UK) Ltd v. Rock Unique Ltd, where the Court of Appeal has continued to affirm the reasonableness of the time limit in BIFA conditions.

My thanks are due to the staff at Informa for their assistance, particularly the considerable support and assistance given to me by Nicola Whyke and the hard work of Chris Betney and the production team. I am grateful also for the encouragement and support of my wife, my friends and my friends and colleagues at Cardiff Law School, notably James Davey, Cliona Kelly and especially Dominic De Saulles without whose efforts to revive my sometimes flagging spirit this second edition would have been even further delayed.

I have endeavoured to state the law as at the end of August 2012.

David A. Glass Cardiff

PREFACE TO FIRST EDITION

This book reworks material previously contained in Parts 6 and 7 of Contracts for the Carriage of Goods by Land, Sea and Air, first published by LLP in 1993 and maintained, until now, as part of the looseleaf service for that publication. It is hoped that the format now adopted will make the material easier to access. The opportunity has been taken to rewrite some of the material, in some areas substantially, in order to provide what will now be, it is hoped, a clearer account. Equally, it is intended that the overview now provided in Chapter One will enable the links between different parts of the work to become more apparent.

While the previous work placed material on freight forwarding and multimodal transport in distinct parts, they are brought together here. They are naturally linked: the modern world of transport of goods draws on the skills and services of both intermediaries and operators in a movement towards increasing provision of integrated intermodal transport, as well as expanding to capture a market in valueadded services. Linked also is the use of the maritime container and other means of consolidating goods that have produced much of the motive power behind the provision of such services.

As in its previous incarnation, the work focuses on standard contract terms and provisions drawn from each of these three streams. This includes terms in direct operation, whether appearing in contract forms in use or as the standard trading conditions of a trade association such as BIFA. It includes also provisions contained in international materials such as rules produced by the International Chamber of Commerce or through the United Nations such as the International Convention on Multimodal Transport. These can provide either a potential source of contract terms or form part of a wider context into which contract terms can be placed. The overall aim is to provide a reference guide to many of the terms themselves and to the legal issues and materials related to them generally from a perspective of English law.

A recent development likely to become an important part of the context is the work being undertaken under the auspices of UNCITRAL towards a new international convention covering carriage of goods by sea and including provisions relevant to door-to-door movements. Discussion of the development so far is included. Some endeavour has also been made to take account of the increasing interest in more widely based logistics contracts.

My thanks are due to the staff at Informa for their assistance, most notably Wendy Gill, Victoria Ophield and Lyn Overton.

I have endeavoured to state the law as at the end of July 2004.

DAVID A GLASS Cardiff

				Page
			Preface to Second Edition	vii
			Preface to First Edition	ix
		Table of Cases		xix
		Table of Legislation		lv
			Table of International Conventions	lix
			Table of Standard Forms	lxv
			Bibliographical and Other Abbreviations	lxxiii
				Para.
1			INTRODUCTION AND OVERVIEW	1.1
	1A		Introduction	1.1
	1B		Terminology and practice	1.7
		1B.1	Definitions	1.7
		1B.2	Unit load devices	1.11
		1B.3	Practical context of operations	1.16
	1C		The development of forms of contract	1.27
		1C.1	The early stages	1.28
		1C.2	Second generation bills and TCM	1.32
		1C.3	MMTC and later developments	1.37
		1C.4	The development and current forms	1.42
2			FREIGHT FORWARDING CONDITIONS	2.1
	2A		Introduction	2.1
	2B		Incorporation of general conditions	2.9
	2C		Standard terms of contract	2.19
		2C.1	Definitions and application	2.19
			2C.1.1 Forwarding and logistics activities	2.20
			2C.1.2 The contracting parties	2.21
		2C.2	Compulsory legislation	2.24
			2C.2.1 Regimes of liability	2.25
			2C.2.2 The Unfair Contract Terms Act 1977	2.26
			2C.2.3 Directive on Unfair Terms in Consumer
			Contracts	2.29
			2C.2.4 Paramount clauses	2.30

	2C.2.5 Severence	2.31
2C.3	Authority conditions	2.33
	2C.3.1 Express and implied warranties of
	authority	2.34
	2C.3.2 Authority of the owner	2.38
2C.4	Status of the forwarder	2.44
	2C.4.1 Introduction to the roles of the forwarder	2.45
	2C.4.2 The different roles in detail	2.52
	2C.4.3 Criteria determining status	2.67
	2C.4.4 The significance of bills of lading	2.81
2C.5	Responsibilities of the forwarder or logistics provider	2.95
	2C.5.1 Introduction—duty of care and other obligations	2.96
	2C.5.2 Gratuitous services	2.99
	2C.5.3 Extent of duty	2.102
	2C.5.4 Summary of case law on forwarders'
	duty of care	2.108
	2C.5.5 Duty of good faith	2.123
2C.6	Liberties of the forwarder—as agent	2.124
	2C.6.1 Interrelationship of clauses	2.125
	2C.6.2 Discretion and instructions	2.126
	2C.6.3 Application of UCTA	2.130
	2C.6.4 Obedience and negligence	2.132
	2C.6.5 Choice of terms	2.133
2C.7	Liberties of the forwarder—as principal	2.134
	2C.7.1 Liberty and instructions	2.135
	2C.7.2 Liberty to deviate	2.136
	2C.7.3 Choice of safest method	2.139
	2C.7.4 Subcontracting	2.140
2C.8	Liberty to delegate	2.141
	2C.8.1 Delegation of agency	2.142
	2C.8.2 Privity of contract with sub-agent	2.144
2C.9	Rights of lien	2.147
	2C.9.1 Rights of particular lien	2.148
	2C.9.2 Rights of general lien	2.155
	2C.9.3 The need for possession	2.159
	2C.9.4 Lien only for sums due	2.161
	2C.9.5 Active lien	2.162
	2C.9.6 Effect of compulsory rules	2.164
2C.10	Brokerages and commissions	2.166
2C.11	Delivery	2.168
	2C.11.1 Delivery and transit clauses	2.169
	2C.11.2 Power of sale	2.175
2C.12	Limitations of performance—insurance	2.178
	2C.12.1 Clauses limiting performance	2.179
	2C.12.2 No duty to insure at common law	2.181
	2C.12.3 Effect of clauses excluding an obligation to insure	2.182

	2C.12.4	The forwarder effecting insurance as agent	2.183
2C.13		Collection arrangements	2.187
	2C.13.1	Restrictions on responsibility for cash on delivery
		arrangements	2.188
	2C.13.2	Exclusion of liability	2.190
2C.14		Advice and information	2.192
	2C.14.1	Liability for negligent misstatement	2.193
	2C.14.2	Contractual and other bases of liability	2.197
	2C.14.3	Effects of disclaimer	2.200
2C.15		Restrictions on acceptable goods	2.203
	2C.15.1	Restricting duties and responsibilities for valuable
		and dangerous goods	2.204
	2C.15.2	Dealing with dangerous goods where accepted	2.209
2C.16		Rates and declarations	2.211
2C.17		Customer obligations—warranties	2.214
	2C.17.1	The forwarder's scheme of protection	2.215
	2C.17.2	Warranties as to goods and interrelationship with
		protection implied in law	2.217
	2C.17.3	Description and particulars of goods	2.223
	2C.17.4	Warranty that goods properly packed etc.	2.228
	2C.17.5	Warranty as to transport unit	2.229
2C.18		Customer obligations—dangerous goods	2.234
	2C.18.1	Express indemnity for dangerous and harmful
		goods	2.235
	2C.18.2	Causation and remoteness issues in respect of
		liability and indemnity for dangerous goods	2.240
	2C.18.3	Scope of indemnity—personal injury and
		negligence	2.241
2C.19		Customer obligations—promise not to sue	2.244
	2C.19.1	Clauses used to protect servants, etc.	2.245
	2C.19.2	Undertakings not to sue	2.247
2C.20		Customer obligations—general indemnities	2.250
	2C.20.1	Scope of general indemnities and effect of
		particular words	2.251
	2C.20.2	Need for notice of claim?	2.256
	2C.20.3	Covering liability for negligence?	2.257
	2C.20.4	How far is protection extended beyond common
		law?	2.258
	2C.20.5	Circular indemnity	2.264
2C.21		Customer obligations—payment	2.266
	2C.21.1	Payment of sums when due	2.267
	2C.21.2	The right of set-off under the general law	2.272
	2C.21.3	The rule against deductions from freight	2.275
	2C.21.4	Restricting the right of set-off	2.277
	2C.21.5	Payment of interest	2.278

			2C.21.6 Collection of freight etc from consignee—
			continuing duty of the customer	2.281
			2C.22 Exclusion of liability	2.282
			2C.22.1 Exclusion clauses and context of BIFA clause 24	2.283
			2C.22.2 Specified causes	2.286
			2C.22.3 Burden of proof	2.288
			2C.22.4 Reasonableness	2.289
			2C.22.5 Liability for delay	2.291
		2C.23	Limitation of liability	2.292
			2C.23.1 Limitation of liability clauses—interrelationship
			of limits	2.293
			2C.23.2 Limiting liability for negligence,
			collateral undertakings and fundamental breach	2.295
			2C.23.3 Unexplained causes and fundamental or serious
			breach	2.297
			2C.23.4 The value of the goods for the purpose of
			fixing compensation	2.298
			2C.23.5 Reasonableness and compulsory rules	2.300
		2C.24	Limitation of action	2.304
			2C.24.1 Notice of claims and time limits	2.305
			2C.24.2 Width of notice and time limit clauses	2.307

			2C.24.3 Reasonableness and compulsory rules	2.308
			2C.24.4 Bringing suit	2.311
		2C.25	Law and jurisdiction	2.315
			2C.25.1 Express choice of law	2.316
			2C.25.2 Absence of an express choice	2.320
			2C.25.3 Claims in tort and other non-contractual claims	2.324
			2C.25.4 Exclusive jurisdiction clauses	2.329
			2C.25.5 Where there is no exclusive jurisdiction clause	2.351
3			MULTIMODAL TRANSPORT	3.1
	3A		Introduction	3.1
	3B		Through bills and liability	3.4
		3B.1	Introduction	3.5
		3B.2	Types of through bill	3.6
		3B.3	Through liability bills	3.7
		3B.4	Segmented liability bills	3.9

		3B.5	Unclear agency clauses	3.11
		3B.6	Scope of carriage and Himalaya clauses	3.14
		3B.7	Issues of segmented responsibility	3.24
		3B.8	Through bills of lading and the Hague Rules	3.34
	3C		Combined transport bills of lading	3.39
		3C.1	Introduction	3.39
		3C.2	The ICC Uniform Rules for a combined transport
			document 1975, Brochure No. 298	3.46
			3C.2.1 Introduction	3.46

	3C.3	ICC Rules: application and definitions	3.48
		3C.3.1 Application of ICC Rules and the definition of
		combined transport	3.49
		3C.3.2 Port to port and combined transport bills of lading	3.52
	3C.4	ICC Rules: documentation	3.55
		3C.4.1 Negotiable or non-negotiable documents	3.56
	3C.5	ICC Rules: CTO responsibilities	3.59
		3C.5.1 Undertaking to perform or procure performance	3.60
	3C.6	ICC Rules: Liability of the CTO	3.61
		3C.6.1 Network scheme of liability and limitation	3.62
		3C.6.2 Cases on the construction of combined
		transport documents	3.69
		3C.6.3 Combined transport documents and mandatory
		rules	3.78
	3C.7	Responsibility of the consignor	3.91
	3C.8	Claims and actions	3.92
3D		Multimodal transport—the International Multimodal Transport
		Convention 1980	3.93
	3D.1	Introduction	3.93
	3D.2	Definitions and application of the Convention	3.97
		3D.2.1 Applications to multimodal transport contracts	3.98
	3D.3	Documentation	3.102
		3D.3.1 The multimodal transport document	3.103
	3D.4	Liability of the MTO	3.106
		3D.4.1 Modified network system	3.107
	3D.5	Liability of the consignor	3.115
	3D.6	Claims and actions	3.116
	3D.7	Contractual stipulations	3.117
	3D.8	Saving provisions	3.118
		3D.8.1 Conflict of Conventions	3.119
3E		Multidoc—the UNCTAD/ICC Rules	3.122
	3E.1	Introduction	3.122
	3E.2	Definitions and applications of the UNCTAD/ICC Rules	3.124
		3E.2.1 Object and application of the Rules	3.125
	3E.3	Documentation and responsibilities of the MTO	3.126
		3E.3.1 The multimodal transport document and the
		responsibilities of the MTO	3.127
	3E.4	Liability of the MTO	3.128
		3E.4.1 Liability for loss, damage or delay	3.129
	3E.5	Compensation and limitation of liability	3.132
		3E.5.1 Limitation of liability	3.133
	3E.6	Liability of the consignor	3.136
		3E.6.1 Comparison of provisions	3.137
	3E.7	Claims and actions	3.138
	3E.8	Non-contractual claims	3.139
		3E.8.1 Himalaya protection	3.140

	3F		United Nations Convention on Contracts for the International
			Carriage of Goods Wholly or Partly by Sea—The Rotterdam
		Rules		3.143
		3F.1	Introduction	3.143
		3F.2	The Convention and multimodal transport—application,
			parties and documents	3.147
			3F.2.1 Application to contracts and operators, exclusion
			and derogation	3.148
			3F.2.2 New documentation in a virtual world	3.156
		3F.3	Use of documents	3.159
			3F.3.1 Particulars in and evidential effect of

			documentation	3.160
			3F.3.2 Use of documents	3.165
		3F.4	The Convention and multimodal transport—liability
			and conflicts in a multimodal context	3.170
			3F.4.1 Towards a new network system?	3.171
4			CONDITIONS RELEVANT TO UNIT-LOADS	4.1
	4A		Introduction	4.1
	4B		Carriage by rail—freightliner conditions	4.2
		4B.1	Definitions	4.5
			4B.1.1 The containers and/or goods as a consignment	4.6
		4B.2	Basis for providing containers	4.7
			4B.2.1 Container safety regulations	4.8
		4B.3	Warranties and obligations of the sender	4.9
		4B.4	Parties and subcontracting	4.11
			4B.4.1 Indirect protective clauses	4.12
		4B.5	Marks and consignment notes	4.16
		4B.6	Dangerous consignments	4.18
			4B.6.1 Dangerous goods regulations	4.19
		4B.7	Loading and unloading	4.20
		4B.8	Transit and storage	4.21
		4B.9	Charges and lien	4.22
		4B.10	Liability and limits	4.23
		4B.11	The nature of transport and additional conditions	4.27

			4B.11.1 Application of the CIM Rules and the CMR
			Convention	4.28
	4C		Carriage by rail—Intercontainer-Interfrigo (ICF) general conditions
			applicable to combined transport 2000	4.34
		4C.1	Introduction	4.34
		4C.2	Definitions and preamble	4.37
			4C.2.1 Introductory conditions	4.37.1
			4C.2.2 Classification of the contract	4.38
		4C.3	Offers and agreements	4.41
			4C.3.1 Price variation	4.42
		4C.4	Orders and instructions	4.43
			4C.4.1 The ICF Transfer Note	4.44

	4C.5	Dangerous goods	4.45
	4C.6	Provision of UTI	4.46
	4C.7	Use of wagons	4.48
	4C.8	Condition, loading, storage of UTI	4.50
	4C.9	UTI fitted for controlled temperature	4.52
	4C.10	Impediments to transport and delivery	4.54
	4C.11	Responsibility	4.56
		4C.11.1 The basis of liability	4.57
4D		Carriage by rail—Interfrigo Conditions 1973	4.61
	4D.1	Introduction	4.61
	4D.2	Liability of Interfrigo	4.62
4E		Carriage of road vehicles by rail	4.65
	4E.1	Introduction	4.65
	4E.2	Preliminary statement and definitions	4.66
		4E.2.1 Comparison with scope of previous conditions	4.67
	4E.3	Object of the contract, obligations of the parties,
		commencement and termination of contracts and operations	4.68
		4E.3.1 Start of contract and nature of UIRR operation	4.69
	4E.4	Customer's liability for the condition of the transport
		unit and merchandise	4.71
	4E.5	Dangerous or unauthorised goods	4.73
	4E.6	Payment terms	4.75
	4E.7	Liability of the transporting company	4.76
	4E.8	Terms of indemnity and closing provisions	4.84
4F		Carriage by road	4.85
	4F.1	Introduction	4.85
	4F.2	Definition of consignment	4.86
		4F.2.1 The container as a consignment	4.87
4G		Carriage by sea	4.88
	4G.1	Introduction	4.88
	4G.2	Container consortia	4.89
	4G.3	Container bills and waybills etc.	4.92
		4G.3.1 Definitions	4.93
		4G.3.2 Carrier's tariff	4.95
		4G.3.3 Perishable goods	4.97
		4G.3.4 Optional stowage and deck cargo	4.99
		4G.3.5 Description of goods	4.111
		4G.3.5.1 Container bills as evidence of contents
		of the container	4.112
		4G.3.6 Shipper-packed containers	4.122
		4G.3.6.1 Container supply and the container as
		packing	4.123
		4G.3.7 Limitation of liability	4.131
		4G.3.7.1 Package limitation	4.132

Index			469

(All references are to paragraph number)

7E Communications Ltd v. Vertex Antennetechnik GmbH [2007] 1 WLR 2175 2.338
A/B Helsingfors Steamship Co Ltd v. Rederiaktiebolaget Rex (The White Rose) [1969] 1 WLR 1098; [1969] 2 Lloyd's Rep 52 2.255 ABCI v. Banque Franco-Tunisienne [2003] EWCA Civ 205; [2003] 2 Lloyd's Rep 146 (CA) 2.351 ABN AMRO Verzekeringen BV v. Geologistics Americas Inc [2003] AMC 834 (SDNY)2.133, 3.33 ACE Imports Pty v. Companhia de Navegacao Lloyd Brasileiro (The Esmeralda 1) [1988] 1 Lloyd's Rep 206 (Sup Ct NSW) 4.113
ACP Capital Ltd v. IFR Capital plc [2008] EWHC 1627 (Comm); [2008] 2 Lloyd's Rep 6952.337,
2.344, 2.345 A.E. Farr Ltd v. Admiralty [1953] 1 WLR 965; [1953] 2 Lloyd's Rep 173 2.252 A.E. Pellet & Co Inc v. M.V. Ouirgane [1986] AMC 2749 (SDNY 1986) 3.30, 3.33 AIG Europe, SA v. M/V MSC Lauren [1997] AMC 341 (ED Va 1996); affmd [1988] AMC 1161 (4th Cir.)3.26, 4.116, 4.119, 4.120 AIG Europe, SA v. QBE International Insurance Ltd [2001] 2 Lloyd's Rep 268 2.3337, 2.338 AIG Europe (UK) Ltd v. Ethniki [1998] 4 All ER 301; affmd [2000] 2 All ER 566; [2000] IL Pr
426 (CA) 2.338, 2.358
AP Moller-Maersk A/S v. Ocean Express Miami [2008] AMC 1236 (SDNY) AP Moller-Maersk A/S v. Soaec Villas Cen Sad Fadoul [2010] EWHC 355 (Comm); [2011] 1	3.22
Lloyd's Rep 1 2.344 A.R. Brown Mcfarlane & Co Ltd v. C. Shaw Lovell & Sons Ltd (1921) 7 Ll L Rep 362.112, 2.261
A/S Hansen-Tangens Rederi III v. Total Transport Corp (The Sagona) [1984] 1 Lloyd's Rep 194 2.261
AS Klaveness Chartering v. Pioneer Freight Futures Co Ltd [2009] EWHC 3386 (Comm); [2010] 2 Lloyd's Rep 613 2.267
A/S D/S Svendborg v. Wansa (t/a Melborne Enterprises) [1996] 2 Lloyd's Rep 559 2.333 AWB (Geneva) SA v. North America Steamships Ltd [2007] EWCA Civ 739; [2007] 2 Lloyd's
Rep 315 (CA) 2.333
Abidin Daver, The. Owners of the Las Mercedes v. Owners of the Abidin Daver [1984] AC 398; [1984] 1 Lloyd's Rep 339 (HL) 2.331
Aberdeen Grit v. Ellerman's Wilson Line 1933 SC 9	3.7
Abraham v. Bullock (1902) 86 LT 796 2.105 Acatos v. Burns (1878) 3 Ex D 282 2.225
Ace Insurance SA-NV (formerly Cigna Insurance Co of Europe SA NV) v. Zurich Insurance Co [2000] 2 Lloyd's Rep 423 2.344
Acme Transport v. Betts [1981] 1 Lloyd's Rep 131 (CA)4.6, 4.87
Aconcagua, The. Compania Sud Americano de Vapores v. Sinochem Tianjin Import & Export Corp [2010] EWCA Civ 1403; [2011] 1 Lloyd's Rep 683 (CA) 2.219, 2.235
Adamastos Shipping Co Ltd v. Anglo Saxon Petroleum Co Ltd [1959] AC 133; [1958] 1 Lloyd's Rep 73 (HL) 2.303, 3.69
Advent Capital plc v. Ellinas Imports-Exports Ltd [2005] EWHC 1242 (Comm); [2005] 2 Lloyd's Rep 607 (ECJ) 2.329, 2.348
Aectra Refining and Manufacturing Inc v. Exmar NV (The New Vanguard and The Pacifica)
[1995] 1 Lloyd's Rep 191; [1995] 1 All ER 641 (CA) 2.273, 2.274 Aegis Spirit, The [1977] 1 Lloyd's Rep 93 (US Ct) 2.87, 4.88, 4.147

Aes Ust-Kamenogorsk Hydropower Plant LLP v. Aes Ust-Kamenogorsk Hydropower Plant JSC
[2011] EWCA Civ 647; [2012] 1 WLR 920; [2011] 2 Lloyd's Rep 233 (CA) 2.333
Aetna Insurance Co v. General Terminals [1969] AMC 2449 4.116
Africa Express Line Ltd v. Socofi SA [2009] EWHC 3223 (Comm); [2010] 2 Lloyd's Rep 181 2.338
Aggeliki Charis Compania Maritima SA v. Pagnan SpA (The Angelic Grace) [1995] 1 Lloyd's Rep 87 (CA) 2.333
Agnew v. Lansf¨ors¨akringsblagens AB [1996] 4 All ER 978 (QBD); [2000] 1 All ER (Comm) 321
(HL)2.353, 2.354, 2.356, 2.357
Agrosin Pty Ltd v. Highway Shipping Co Ltd (The Mata K) [1998] 2 Lloyd's Rep 6144.113, 4.115
Ahlers v. Broome & Green Ltd (1938) 62 Ll L Rep 163 2.155
Aiken v. Stewart Wrightson Members Agency Ltd [1995] 2 Lloyd's Rep 618 2.114, 2.144
Ailsa Craig Fishing Co Ltd v. Malvern Fishing Co Ltd (The Strathallan) [1983] 1 WLR 964;
[1983] 1 Lloyd's Rep 183 (Note) (HL) 2.187, 2.295
Airbus Industrie GIE v. Patel [1999] 1 AC 119; [1998] 1 Lloyd's Rep 631 (HL) 2.333
Airline Engineering Ltd v. Intercon Cattle Meat Ltd, CA, 24 January 1983, unreported, Lexis2.239,
	2.252
Airspeed Cargo (London) Ltd v. Stag Instruments Ltd, QBD, 8 October 1982, unreported,
Lexis 2.296
Aisin Seiki Co Ltd v. Union Pacific Railroad Co [2002] AMC 2911 (SDNY)	3.19
Akiyama v. M.V. Hanjin Marseilles [1999] AMC 650 (9th Cir. 1998) 3.14, 3.17
Albon v. Naza Motor Trading [2007] EWHC 9 (Comm); [2007] 1 Lloyd's Rep 297 (CA) 2.351
Alderslade v. Hendon Laundry Ltd [1945] KB 189; [1945] 1 All ER 244 (CA) 2.147, 2.239, 2.242,
	2.295
Alex, The. Lufty Ltd v. Canadian Pacific Railway Co [1974] 1 Lloyd's Rep 106 (Fed Ct Can)2.18,
3.27, 3.29, 3.31, 4.117
Alexander v. Railway Executive [1951] 2 KB 882 2.187
Alexandros T, The. Starlight Shipping Co v. Allianz Marine & Aviation Versicherungs AG [2011]
EWHC 3381 (Comm); [2012] 1 Lloyd's Rep 162 2.337
Alfred Dunhill Ltd v. Diffusion Internationale de Maroquinerie de Prestige Sarl [2002] 1 All ER
(Comm) 950 2.362, 2.363
All Pacific Trading v. Hanjin Container Line Inc [1994] AMC 365 (US CA, 9th Cir., 1993)3.21,
	4.140, 4.145
All Pacific Trading v. Hanjin Lines [1991] AMC 2860 (CD Cal 1991)	3.23
Alliance Bank JSC v. Aquanta Corp [2011] EWHC 3281 (Comm); [2012] 1 Lloyd's Rep 181 2.324
Alliance Transportation Co Ltd v. Pike Ltd, Lloyd's List, Mayor's Court, 18 January 1992 2.270
Allianz SpA v. West Tankers Inc (The Front Comor) (Case C–185/07) [2009] 1 AC 1138; [2009]
1 Lloyd's Rep 413 2.348, 2.352
Allied Chemical International Corp v. Lloyd's Brasileiro [1986] AMC 826 (2nd Cir. 1985)	3.31
Allied Signal Technical Services Corp v. M/V Dagmar Maersk [2002] AMC 2433 (Md) 4.120
Allstate Ins. Co v. International Shipping Corp [1985] AMC 760 (11th Cir. 1983), 703 F.2d.
497	3.15
Alternative Glass Supplies v. M/V Nomzi [1999] AMC 1080 (SDNY) 4.101
Aluminios Pozuelo Ltd v. S.S. Navigator [1968] AMC 2532 (US CA, 2nd Cir., 1968) 4.142
Amdahl Corp v. Profit Freight Systems [1995] AMC 2694 (9th Cir. 1995)2.14, 2.17, 3.32, 4.148
American Dornier Machinery Corp v. MSC Gina [2002] AMC 560 (SDNY 2001) 2.103
American Foreign Insurance Assoc. v. Seatrain, 689 F.2d 295, [1983] AMC 2782 (1st Cir.
1982) 4.127
American Home Insurance Co v. Crowley Ambassador [2003] AMC 510 (SDNY) 4.139
American Home Insurance Co v. Dampskibsselskabet AF 1912 [2003] AMC 216 (SD Fla)	3.28
American Home Insurance Co v. Hapag Lloyd Container Linie GmbH [2006] AMC 1239 (2d
Cir.)	3.19
American Home Insurance Co v. M/V Tabuk [2002] AMC 184 (SDNY 2001) 4.103
American Home Insurance Co v. Zim Jamaica [2004] AMC 393 (SDNY)4.116, 4.119, 4.120
American International Specialty Line Insurance Co v. Abbott Laboratories [2003] 1 Lloyd's Rep
267 2.333

American Legacy, The (1980) 15 ETL 385 (Sup Ct France) 4.113
American Motorists Insurance Co (AMICO) v. Cellstar Corp [2002] 2 Lloyd's Rep 216; affmd
[2002] EWCA Civ 206; [2003] All ER (D) 26; [2003] ILPr 22 (CA) 2.331, 2.345
Amiri Flight Authority v. BAE Systems plc [2003] 2 Lloyd's Rep 767	2.26
Amorex Machine v. Maersk Mango [1991] AMC 2941 (SD Tex 1991) 4.116 Amphion, The. General Feeds Inc v. Burnham Shipping Corp [1991] 2 Lloyd's Rep 101 2.236

Anders Maersk, The [1986] 1 Lloyd's Rep 483 (HC HK)	3.37
Andrea Merzario SPA v. Vismara Associates, Court of Cassation, 2.8.1998, No. 8713 Andrew Weir Shipping Ltd v. Wartsila UK Ltd [2004] EWHC 1284 (Comm); [2004] 2 Lloyd's	3.84
Rep 377 2.353
Andromeda Marine SA v. O W Bunker & Trading A/S (The Mana) [2006] EWHC 777 (Comm); [2006] 2 Lloyd's Rep 319 2.338
Angelic Grace, The. Aggeliki Charis Compania Maritima SA v. Pagnan SpA [1995] 1 Lloyd's Rep 87 (CA) 2.333
Anglo-Continental Holidays Ltd v. Typaldos Lines (London) Ltd [1967] 2 Lloyd's Rep 61 (CA) 2.138, 2.282
Anglo Overseas Transport Co Ltd v. David Zanellotti Ltd [1952] 1 Lloyd's Rep 232 2.152, 2.262
Anglo Overseas Transport Ltd v. Titan Industrial Corp Ltd [1959] 2 Lloyd's Rep 152 2.57, 2.261
Anglo Irish Beef Processors International v. Federated Stevedores Geelong (The Reefer Badger) [1997] 1 Lloyd's Rep 207 (CA Sup Ct Va) 2.312
Anglo Russ, The. Universal Shipping and Forwarding Co Ltd v. Commercial and Industrial Co
Ltd (1919) 1 Ll L Rep 635 2.21, 2.281
Antares (No. 1), The. Kenya Railways v. Antares Co Pte Ltd [1987] 1 Lloyd's Rep 424 (CA)2.307,
	4.104
Antonio Gramsci Shipping Corp v. Stepanovs [2011] EWHC 333 (Comm); [2011] 1 Lloyd's Rep 647 2.338
Anton Durbeck GmbH v. Den Norske Bank ASA [2005] EWHC 2497 (Comm); [2006] 1
Lloyd's Rep 93 2.328
Antwerp, 4.11.77 (1977) 12 ETL 843	2.84
Antwerp United Diamond B.V.B.A. v. Air Europe [1995] 3 All ER 424; [1995] 2 Lloyd's Rep 224
(CA) 3.63, 3.114, 3.132
Antwerpen, The. Glebe Island Terminals Pty v. Continental Seagram Pty [1994] 1 Lloyd's Rep
213 (CA NSW)2.297, 3.14, 3.52, 4.96
Aqualon (UK) Ltd v. Nilsson International BV; Vallana Shipping Corp [1994] 1 Lloyd's Rep 669 2.55, 2.62, 2.63, 2.67, 2.112, 4.38
Aramis, The [1989] 1 Lloyd's Rep 213 (CA)	2.40
Aratra Potato Co Ltd v. Egyptian Navigation Co (The El Amria) [1981] 2 Lloyd's Rep 119 2.311
Arawa, The. Producers Meats Ltd v. Shaw Savill & Albion Co Ltd [1977] 2 Lloyd's Rep 416; rvsd
[1980] 2 Lloyd's Rep 135 (CA) 2.286
Archbolds (Freightage) Ltd v. S. Spanglett Ltd [1961] 1 QB 374 (CA)	4.7
Arctic Electronics Co (UK) Ltd v. McGregor Sea & Air Services Ltd [1985] 2 Lloyd's Rep 510 2.365
Aries Tanker Corp v. Total Transport Ltd (The Aries) [1977] 1 WLR 185; [1977] 1 All ER 398;
[1977] 1 Lloyd's Rep 334 (HL) 2.74, 2.275, 2.276, 2.311, 3.176
Ark v. True North Capital [2005] EWHC 1585 (Comm); [2006] 1 All ER (Comm) 138 2.331
Arkwright Mutual Insurance Co v. Bryanston Insurance Co Ltd [1990] 2 QB 649; [1990] 2
Lloyd's Rep 70 2.344
Arkwright Mutual Ins. v. Oriental [1991] AMC 2237 (SDNY 1990) 4.120
Armour & Co Ltd v. Leopold Walford (London) Ltd [1921] 3 KB 473; (1921) 8 Ll L Rep 497 4.101
Asahi America Inc v. M/V Arild Maersk [1986] AMC 53 (SDNY 1985)	3.76
Ascot Commodities NV v. Northern Pacific Shipping (The Irini A) (No. 1) [1999] 1 Lloyd's Rep
196 2.333
Ashmore Benson Pease & Co Ltd v. A.V. Dawson Ltd [1973] 1 WLR 828; [1973] 2 Lloyd's Rep 21 (CA) 2.228, 4.7
Ashton Investment Ltd v. Rusal [2006] EWHC 2545 (Comm); [2007] 1 Lloyd's Rep 311 2.351
Associated British Ports v. Ferryways NV [2008] EWHC 1265 (Comm); [2008] 2 Lloyd's Rep
353 4.134 Associated Metals and Minerals Corp v. M/V Arktis Sky, 978 F.2d 47 (2nd Cir., 1992); [1993]
AMC 509 4.125, 4.126
Astrazeneca UK Ltd v. Albermarle International Corp [2010] EWHC 1028 (Comm); [2010] 2 Lloyd's Rep 61 2.331
Astrazeneca UK Ltd v. Albermarle International Corp [2011] EWHC 1574 (Comm); [2011] 2 CLC 252 2.295
Athanasia Comninos and Georges Chr Lemos, The [1990] 1 Lloyd's Rep 2772.219, 2.227, 2.236
Athenian Harmony, The (No. 2); Derby Resources AG v. Blue Corinth Marine Co Ltd (No. 2) [1998] 2 Lloyd's Rep 425 2.280
Atlanska Plovidba v. Consignaciones Asturianas SA (The Lapad) [2004] EWHC 1273 (Comm);
[2004] Lloyd's Rep 109 2.16, 2.331

Atlantic Coast Yacht Sales Inc v. M/V Leon, In Rem [2003] AMC 1871 (D Md) 4.103
Atlantic Glass Supplies v. M/V Nomzi [1999] AMC 1080 (SDNY) 4.141
Atlantic Lines & Navigation Co Inc v. Hallam Ltd (The Lucy) [1983] 1 Lloyd's Rep 188 2.127
Atlantic Mutual v. President Tyler [1991] AMC 452 (SDNY 1990)	3.23
Atlas, The. Noble Resources Ltd v. Cavalier Shipping Corp [1996] 1 Lloyd's Rep 642 4.113
Atlas Express Ltd v. Kafco (Importers and Distributors) Ltd [1989] QB 833 2.269
Atlas Shipping Agency (UK) Ltd v. Suisse Atlantique Societe d'Armement Maritime SA (The
Gulf Grain and The El Amaan) [1995] 2 Lloyd's Rep 188 2.357
Attorney General of Ghana v. Texaco Overseas Tankships Ltd (The Texaco Melbourne) [1993] 1 Lloyd's Rep 471 (CA); affmd [1994] 1 Lloyd's Rep 473 (HL) 2.298
Austracan (USA) Inc v. Neptune Orient Lines Ltd, 612 F.Supp 578; [1985] AMC 2952 (SDNY
1985) 3.26, 4.113 Australia Tallow & Agri-Commodities Pty Ltd v. MISC [2001] NSWCA 16; (2001) 50 NSWLR
576 2.23, 4.93
Axa Sun Life Services plc v. Campbell Martin Ltd [2011] EWCA Civ 133; [2011] 2 Lloyd's Rep 1 (CA) 2.200, 2.277
Axel Johnson Petroleum A.B. v. M.G. Mineral Group AG (The Obelix) [1992] 2 All ER 163
(CA) 2.273, 2.276
Azov Shipping Co v. Baltic Shipping Co (No. 3) [1999] 2 Lloyd's Rep 159	4.89

BAT Switzerland SA v. Exel Europe Ltd [2012] EWHC 694 (Comm); [2012] 2 Lloyd's Rep 1 2.365
BBC Greenland, The. Sideridraulic Systems SpA v. BBC Chartering & Logistic GmbH & Co KG [2011] EWHC 3106 (Comm); [2012] 1 Lloyd's Rep 230 2.315, .107
BGH, 24.6.87 (1 ZR 127/85) 3.84, 3.89
BGH, 17.5.89 (1 ZR 211/87)	3.84
BGH, 17.7.2008 (2008), I ZR 181/05	3.85
BHP Petroleum Ltd v. British Steel plc [1999] 2 Lloyd's Rep 583; affmd [2000] 2 Lloyd's Rep
277 (CA) 2.292, 2.295, 2.295
BP plc v. AON Ltd [2005] EWHC 2554 (Comm); [2006] 1 Lloyd's Rep 549 2.331, 2.335
B. & S. Contracts and Design Ltd v. Victor Green Publications Ltd [1984] ICR 419 (CA)2.286, 2.287
Baghlaf Al Zafer Factory Co BR for Industry Ltd v. Pakistan National Shipping Co (No. 1) [1998]
2 Lloyd's Rep 229 (CA) 2.312, 2.331
Bahamas Oil Refining Co v. Kristiansands Tank Rederie (The Polyduke) [1978] 1 Lloyd's Rep 211 2.240
Balli Trading Ltd v. Afalona Shipping Ltd (The Coral) [1993] 1 Lloyd's Rep 1 (CA) 4.126
Bally Inc v. M/V Zim America (1994) 390 LMLN 3; [1994] AMC 2762 (US CA) 4.119, 4.120
Balmoral Group Ltd v. Borealis (UK) Ltd [2006] 2 Lloyd's Rep 629	2.26
Baltic Flame, The. Petroleo Brasiliero SA v. Mellitus Shipping Inc [2001] EWCA Civ 418; [2001] 2 Lloyd's Rep 203 (CA) 2.351
Bamfield v. Goole and Sheffield Transport Co Ltd [1910] 2 KB 94 (CA) 2.207, 2.224
Bando Silk Co Ltd v. Hyundai Commander [1995] AMC 516 (SDNY 1994) 4.139
Bank of Boston Connecticut (formerly Colonial Bank) v. European Grain & Shipping Ltd (The
Dominique) [1989] AC 1056; [1989] 1 Lloyd's Rep 431 (HL) 2.273, 2.276 Bank of New York Mellon v. GV Films [2009] EWHC 2338 (Comm); [2010] 1 Lloyd's Rep
3652.329, 2.332, 2.333
Bank of Nova Scotia v. Hellenic Mutual War Risk Association (Bermuda) Ltd (The Good Luck)
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Bank of Tokyo-Mitsubishi Ltd v. Baskan Gida Sanayi Ve Pazalarma AS [2004] EWHC 945 (Ch); [2004] 2 Lloyd's Rep 3942.338, 2.347, 2.353, 2.363
Bankers Trust Co v. P.T. Jakarta International Hotels and Development [1999] 1 Lloyd's Rep
910 2.333
Barbara Lloyd Designs Inc v. Mitsui O.S.K. Lines Ltd [2003] AMC 2608 (D ND)	3.21
Barber (Charles) v. William Meyerstein (1869–70) LR 4 HL 317 (HL)	2.90
Barbour v. South Eastern Ry Co (1876) 34 LT 67 2.228
Bardiger (M.) Ltd v. Halberg Spedition Aps, QBD, 26 October 1990, unreported 2.55, 2.59, 2.60, 2.62, 2.63, 2.71, 2.72, 2.75
Bas Capital Funding Corp & Others v. Medfinco Ltd & Others [2003] EWHC 1798 (Ch); [2004]
1 Lloyd's Rep 652 2.331, 2.351
Beal v. South Devon Railway Co (1864) 3 H & C 337; 159 ER 560	2.99
Beatson v. Haworth (1793) 6 TR 531 2.137
Beck v. Evans (1812) 16 East. 244 2.228

Bekol BV v. Terracina Shipping Corp, 13 July 1988, unreported 4.134, 4.146
Belfast Ropework Co Ltd v. Bushell [1918] 1 KB 210 2.105
Belgium Sup Court, 8 Nov 2004, 2005(3) Uniform LR 628	3.85
Belize Trading Ltd (In re complaint of) v. Sun Insurance Co [1994] AMC 1210 (US CA, 11th
Cir. 1993) 4.141, 4.145
Ben Shipping Co (Pte) Ltd v. An-Board Bainne (The C Joyce) [1986] 2 Lloyd's Rep 285 2.256
Benarty (No. 2), The. R.A. Lister & Co v. E.G. Thomson (Shipping) Ltd and PT Djakarta Lloyd
[1985] QB 325; [1984] 2 Lloyd's Rep 244 (HL) 2.318
Benatti v. WPP Holdings Italy srl [2007] EWCA Civ 263; [2007] 1 WLR 2175 (CA) 2.362
Benford Ltd v. Lopecan SL [2004] EWHC 1897 (Comm); [2004] 2 Lloyd's Rep 618 2.273
Benincasa v. Dentalkit Srl (Case C–269/95) [1998] All ER (EC) 135 2.344
Bentex Fashions Inc v. Cargonaut Canada Inc (1995) 95 FTR 192	2.80
Bergen, The (No. 1) [1997] 1 Lloyd's Rep 380 2.365
Bergen, The (No. 2) [1997] 2 Lloyd's Rep 710 2.333
Bergerco USA v. Vegoil Ltd [1984] 1 Lloyd's Rep 440 2.292
Berghoefer GmbH & Co KG v. ASA SA (Case C–221/84) [1985] ECR 2699 2.338
Besix SA v. Wasserreinigungsbau Alfred Kretzschmar GmbH & Co KG (Case C–256/00) [2003]
IL Pr 8; [2003] 1 WLR 1113 2.358, 2.359
Beswick v. Beswick [1968] AC 58 (HL) 2.248
Bhatia Shipping & Agencies PVT Ltd v. Alcobex Metals Ltd [2004] EWHC 2323 (Comm);
[2005] 2 Lloyd's Rep 336 1.39, 2.316, 2.331, 3.45, 3.58, 3.77
Bier BV (Handelswekerij GJ) and Stichting Reinwater (The Reinwater Foundation) v. Mines de
Potasse D'Alsace SA (Case C–21/76) [1978] QB 708; [1976] ECR 1735 2.363
Bigge Equipment Co v. Maxpeed International Transport Co Ltd [2002] AMC 1409 (ND Cal
2001)	3.17
Bim Kemi AB v. Blackburn Chemicals Ltd (No. 1) [2001] EWCA Civ 457; [2001] 2 Lloyd's Rep
93 (CA) 2.273
Binladen BSB Landscaping v. M.V. Nedlloyd Rotterdam, 759 F. 2d. 1006, [1985] AMC 2113
(2d. Cir. 1985)4.137, 4.141, 4.147
Black & Broom v. J. Coppo & Co (1922) 13 Ll L Rep 347 2.156
Blake v. Richards & Wallington Industries Ltd and Fram Siegwart (1974) 16 KIR 151 2.243
Blommer Chocolate Co (The) v. Nosira Sharon Ltd [1994] AMC 1807 (SDNY 1991) 4.126
Blue Anchor Line v. Yangming Marine Transport Corp [1994] AMC 1758 (3rd. Cir. 1994)	3.23
Bofors-Uva (A.B.) v. Skandia A.B. Transport [1982] 1 Lloyd's Rep 410 Bols Distilleries v. Superior Yacht Services Ltd [2006] UKPC 45; [2007] 1 WLR 12 (PC)2.338,	4.38
	2.344
Bombadier and Another v. Canadian Pacific Ltd (App Ct Ontario 1991) LMLN 329, (1992) 27
ETL 491	3.21
Bontex Knitting Works Ltd v. St John's Garage [1943] 2 All ER 690 2.105
Booth v. Phillips [2004] EWHC 1437 (Comm); [2004] 2 Lloyd's Rep 457 2.351
Borag, The. Compania Financiera Soleada SA v. Hamoor Tanker Corp Inc [1980] 1 Lloyd's Rep
111; rvsd [1981] 1 WLR 274; [1981] 1 Lloyd's Rep 483 (CA) 2.153
Bosma v. Larsen [1966] 1 Lloyd's Rep 22 2.238, 2.254
Boss Group Ltd v. Boss France SA [1997] 1 WLR 351; [1996] IL Pr 544 (CA) 2.357, 2.358
Boughen v. Frederick Attwood Ltd and Cryoplants Ltd [1978] 1 Lloyd's Rep 413 2.250, 2.257
Boutique Jacob Inc v. Pantainer Ltd [2006] AMC 1940 (Fed Ct Can)	3.19
Bouygues Offshore SA v. Caspian Shipping Co (Nos 1, 3, 4 and 5) [1998] 2 Lloyd's Rep 461
(CA) 2.331, 2.344
Bowmaker, Ltd v. Wycombe Motors Ltd [1946] KB 505 2.149
Bradley v. Waterhouse & Briggs (1828) 3 C & P 318 2.206
Brandt v. Liverpool Brazil and River Plate Steam Navigation Co Ltd [1924] 1 KB 575; (1923–24)
17 Ll L Rep 142 (CA)	2.40
Brass v. Maitland (1856) 6 El & Bl 470 2.207, 2.219
Brazil Oitica Ltd v. The Bill, 55 F.Supp 780 (D Md 1944) 4.144
Brereton v. KLC Freight Services Ltd (1997) 105 OAC 149	2.80
Brij, The [2001] 1 Lloyd's Rep 431 (HC HK) 2.88, 2.89, 2.94, 3.56
Bristol & Exeter Ry. v. Collins (1859) 7 HLC 196	3.7
Bristow Helicopters Ltd v. Sikorsky Aircraft Corp [2004] EWHC 401 (Comm); [2004] 2 Lloyd's
Rep 150 2.331
British Aerospace plc v. Dee Howard Co [1993] 1 Lloyd's Rep 368 2.331
British Airways Board v. Laker Airways Ltd [1985] AC 58 (HL) 2.333

British Anzani (Felixstowe) Ltd v. International Marine Management (UK) Ltd [1980] QB
137 2.273
British Crane Hire Corp Ltd v. Ipswich Plant Hire Ltd [1975] QB 303 (CA) 2.12
British Fermentation Products Ltd v. Compair Reavell Ltd [1999] 2 All ER (Comm) 389 2.27
British Road Services Ltd v. Arthur V. Crutchley & Co Ltd (No. 1) [1968] 1 Lloyd's Rep 271;
[1968] 1 All ER 811 (CA)2.14, 2.15, 2.59, 2.122
British Sugar plc v. Babbini [2004] EWHC 2560 (TCC); [2005] 1 Lloyd's Rep 332 2.337, 2.338
British Sugar plc v. NEI Power Projects Ltd [1997] CLC 622 2.292
Britannia Distribution Co Ltd v. Factor Pace Ltd [1998] 2 Lloyd's Rep 420 2.276
Broken Hill Pty Ltd v. Hapag-Lloyd Aktiengesellschaft (1980) 2 NSWLR 572 3.18
Bronislaw Tarnawski v. Schenker Inc [2003] AMC 2230 (WD Wash (Tacoma)) 2.133, 3.21
Brown (J.H.) v. American Express Co, Lloyd's List, 10 June 1921 2.183
Brown Boveri (Australia) Pty v. Baltic Shipping Co (The Nadezhda Krupskaya) [1989] 1 Lloyd's
Rep 518 (CA NSW) 2.303
Brown Jenkinson & Co Ltd v. Percy Dalton (London) Ltd [1957] 2 QB 621; [1957] 2 Lloyd's
Rep 1 (CA) 3.102
Browner International Ltd v. Monarch Shipping Co Ltd (The European Enterprise) [1989] 2
Lloyd's Rep 185 3.37,4.92
Brunton v. Electrical Engineering Corp [1892] 1 Ch 434 2.152
Brushfield Sargent & Co Ltd v. Holmwright Engineering Co Ltd [1968] 1 Lloyd's Rep 439 2.269

Bulman & Dickson v. Fenwick & Co [1894] 1 QB 179 (CA) 2.286
Bunga Teratai, The. Nissho Iwai Australia Ltd v. Malaysia International Shipping Corporation,
Berhad (1989) 167 CLR 219 (HC Aust) 3.61
Bunge SA v. ADM DO Brasil LTDA (The Darya Radhe) [2009] EWHC 845 (Comm); [2009]
2 Lloyd's Rep 175 2.235, 3.115
Burck Mills Ltd v. Black Sea Steamship Co (The Grumont) (1973) FC 387, [1973] 2 Lloyd's
Rep 531 4.128
Burke v. South Eastern Railway Co (1879–80) LR 5 CPD 1 2.10
Burley (C.) Ltd v. Stepney Borough Council (1947) 80 Ll L Rep 289 2.219
Burlington Northern and Santa Fe Railway Co v. Interdom Partners Ltd 2004 WL 734081 (ND
Tex, 26 Mar 2004) 4.122
Burns Philip & Co Ltd v. The West Australian Steam Navigation Co Ltd (1923) 33 CLR 135
(HC Aust) 3.33
Burstall & Co v. Grimsdale & Sons (1906) 11 Com Cas 280 3.9
Butler Machine Tool Co Ltd v. Ex-cell-o Corp (England) Ltd [1979] 1 WLR 401 (CA) 2.14, 2.15
Butterworth v. Brownlow (1865) 19 CBNS 409, 144 ER 845 2.61

C Joyce, The. Ben Shipping Co (Pte) Ltd v. An-Board Bainne [1986] 2 Lloyd's Rep 285 2.256
CMA CGN SA v. Hyundai Mepo Dockyard Co Ltd [2008] EWHC 2791 (Comm); [2009] 1
Lloyd's Rep 213 2.334, 2.349
C.N. Marine Inc v. Carling O'Keefe Breweries of Canada (1990) LMLN 271 3.31
Cadre SA v. Astra Asigurari SA [2005] EWHC 2626 (Comm); [2006] 1 Lloyd's Rep 560 2.333
Caemint Food Inc v. Lloyd Brasileiro Compania de Navegacao [1981] AMC 1801 (2d Cir.
1981) 3.28, 4.116
Caldwell v. Sumpters [1972] Ch 478 (CA) 2.160
Calico Printers Association Ltd v. Barclays Bank Ltd (1931) 145 LT 51 2.144
Cameco Inc v. S.S. American Legion (1974) 514 F. 2d. 1291 4.116, 4.194
Canada Steamship Lines Ltd v. The King [1952] AC 192; [1952] 1 Lloyd's Rep 1 (HL)2.242, 2.295
Canada Trust Co v. Stolzenberg (No. 2) [1998] 1 WLR 547; [2002] 1 AC 1 (HL) 2.338, 2.351
Canadian Forest Products Ltd v. B.C. Rail Ltd [2003] AMC 1135 (Sup Ct Can) 3.26
Canadian Highlander, The. Gosse Millard Ltd v. Canadian Government Merchant Marine
[1929] AC 223; (1928) 32 Ll L Rep 91 (HL) 4.25
Canastrand Industries Ltd v. The Lara S [1993] 2 F.C. 553 2.16
Canon USA Inc v. Nippon Liner System Ltd [1994] AMC 348 (ND Ill 1992) 3.18
Canon USA Inc v. Norfolk Southern Railway Company [1997] AMC 1510 (ND Ga, 1996) 3.17, 3.18
Canusa Systems Ltd v. The Conmar Ambassador (1998) 146 FTR 314 2.80
Caparo Industries plc v. Dickman [1990] 2 AC 605 (HL) 2.193
Cape Coromin, The. Carrington Slipways Pty Ltd v. Patrick Operations Pty Ltd (1991) 24
NSWLR 745 (CA NSW) 2.49, 2.57, 2.91, 3.23
Captain v. Far Eastern Shipping [1979] 1 Lloyd's Rep 595 (SC BC) 3.33, 3.35, 3.88

Captain Gregos (No. 1), The. Compania Portorafti Commerciale SA v. Ultramar Panama Inc
(No. 1) [1990] 1 Lloyd's Rep 310 (CA)2.307, 3.61, 3.106, 4.124
Captain Gregos (No. 2), The. Compania Portorafti Commerciale SA v. Ultramar Panama Inc
(No. 2) [1990] 2 Lloyd's Rep 395 (CA)	2.40
Care Shipping Corp v. Latin American Shipping Corp (The Cebu) [1983] QB 1005; [1983] 1 Lloyd's Rep 302 2.275
Carl Osterberg v. Shipping & Transport Co Ltd (1922) 13 Ll L Rep 562 2.111
Carling O'Keefe v. C.N. Marine [1987] AMC 954; affmd [1990] AMC 997 (Fed App Ct Can)4.105,
	4.137
Carlton, The. Owners of the Carlton v. Port of London Authority [1931] P 186; (1931) 40 Ll L Rep 101 2.240, 2.252
Carol Wright Sales Inc v. Yangming Marine Transport Co [1987] AMC 1195 (NY Sup CA 1986) 3.26, 3.28
Caroline P, The. Telfair Shipping Corp v. Inersea Carriers SA [1984] 2 Lloyd's Rep 466 2.238
Carr v. London & North Western Ry Co (1875) LR 10 CP 307 2.228
Carrington Slipways Pty Ltd v. Patrick Operations Pty Ltd (The Cape Coromin) (1991) 24
NSWLR 745 (CA NSW)2.49, 2.57, 2.84, 2.91, 3.23
Carvill America Inc v. Camperdown UK Ltd [2005] EWCA Civ 645; [2005] 2 Lloyd's Rep 457
(CA) 2.351
Casio Computer Co Ltd v. Sayo [2001] IL Pr 164 2.362
Caspar Trader, The. Hancock Shipping Co Ltd v. Deacon & Trysail (Private) Ltd [1991] 2
Lloyd's Rep 550 2.255
Caspiana, The. G.H. Denton & Co Ltd v. Palmyra Trading Corp of Panama [1955] 2 Lloyd's
Rep 301; rvsd [1956] 1 QB 462; [1955] 2 Lloyd's Rep 722 (CA); affmd [1957] AC 149; [1956]
2 Lloyd's Rep 379 (HL) 2.32, 2.282, 3.88
Cassils & Co & Sassoon v. Holden Wood Bleaching Co (1915) 84 LJKB 8342.148, 2.149, 2.157
Cast Husky, The. Marley Co v. Cast North America (1983) Inc (1995) 405 LMLN 3	3.7
Cast Muskox, The. General Motors Corp v. Cast (1993) Ltd (1994) 378 LMLN 2 (Fed Ct Can
(Trial Div), 28 Feb 1994) 4.122
Caterpillar Financial Services Corp v. SNC Passion [2004] EWHC 569 (Comm); [2004] 2
Lloyd's Rep 99 2.317
Caterpillar Overseas SA v. Marine Transport Inc, 900 F.2d. 714; [1991] AMC 75 (4th Cir. 1990) 3.14, 3.17, 4.144
Catherine Helen, The. Cathiship SA v. Allanasons Ltd [1998] 2 Lloyd's Rep 511 2.238, 2.254
Cathiship SA v. Allanasons Ltd (The Catherine Helen) [1998] 2 Lloyd's Rep 511 2.238, 2.254
Cavcar Co v. Suzdal [1984] AMC 609 (3d Cir.)	3.23
Cayo Mambi, The [1933] AMC 1555 (2nd Cir. 1933) 3.32, 3.33
Cebu, The. Care Shipping Corp v. Latin American Shipping Corp [1983] QB 1005; [1983] 1
Lloyd's Rep 302 2.275
Cecil v. Bayat [2010] EWHC 641 (Comm) 2.351
Cel Group Ltd v. Nedlloyd Lines UK Ltd [2003] EWCA Civ 1716; [2004] 1 Lloyd's Rep 381
(CA)	1.16
Celthene Pty Ltd v. W.J.K. Hauliers Pty Ltd [1981] 1 NSWLR 606	3.14
Cenargo Shipping Ltd v. Henry Butcher & Co (A Partnership), CA, 23 January 1990,
unreported, Lexis	2.21
Centennial Ins. Co v. M/V Constellation Enterprise [1987] AMC 1155 (SDNY 1986) 4.120
Center Optical (Hong Kong) Ltd v. Jardine Transport Services (China) Ltd [2001] 2 Lloyd's Rep
678 (HK HC)2.58, 2.69, 2.94, 3.12, 3.13, 4.146
Certain Underwriters at Lloyd's v. Barber Blue Sea Line [1982] AMC 2638 (11th Cir.)	3.17
Chanda, The. Wibau Maschinenfabrik Hartman SA v. Mackinnon Mackenzie & Co [1989] 2 Lloyd's Rep 4942.296, 2.298, 2.307, 4.104
Chandris v. Isbrandtsen Moller Co Inc [1951] 1 KB 240; (1950) 84 Ll L Rep 347 (CA) 2.279
Chandris v. Union of India [1956] 1 WLR 147; [1956] 1 Lloyd's Rep 11 (CA) 2.253
Chaparral, The. Unterweser Reederei GmbH v. Zapata Offshore Co [1968] 2 Lloyd's Rep 158 (CA) 2.331

Chapman v. Great Western Railway (1880) 5 QBD 278 2.169, 2.170
Chapman Marine Pty v. Wilhelmsen Lines (The Tarago) [1999] AMC 1221 (Fed Ct NSW)4.100,
4.101, 4.142
Charlotte, The [1908] P 206 (CA) 2.298
Chas Davis (Metal Brokers) Ltd v. Gilyott & Scott Ltd [1975] 2 Lloyd's Rep 422 2.16, 2.264, 4.15 Chaudhry v. Prabhakar and Another [1989] 1 WLR 29 (CA)2.100, 2.101, 2.186

Chellaram (K.) & Sons (London) Ltd v. Butlers Warehousing & Distribution Ltd [1978] 2
Lloyd's Rep 412 (CA) 2.156, 2.157
Chevalier Roze, The. Neptune Orient Lines Ltd v. J.V.C. (UK) Ltd [1983] 2 Lloyd's Rep 4382.58,
2.145, 2.248, 3.14, 4.96
Chevron International Oil Co Ltd v. A/S Sea Team (The T.S. Havprins) [1983] 2 Lloyd's Rep 356 2.331
China Ocean Shipping Co (The Xingcheng) v. Andros (The Andros) [1987] 2 Lloyd's Rep 210 (PC) 3.38
China-Pacific SA v. Food Corp of India (The Winson) [1982] AC 939; [1982] 1 Lloyd's Rep 117
(HL)2.100, 2.161, 2.173
Chisso America Inc v. M/V Hanjin Osaka [2003] AMC 2796 (D NJ) 3.17 Chitral, The. International Air and Sea Cargo GmbH v. Owners of the Chitral [2000] 1 Lloyd's
Rep 529 3.56
Cho Yang Shipping Co Ltd v. Coral (UK) Ltd [1997] 2 Lloyd's Rep 641 (CA)1.18, 1.20, 2.67, 2.71, 2.79, 2.92, 2.93, 3.23
Choko Star, The. Industrie Chimiche Italia Centrale v. Alexander G. Tsavliris & Sons Maritime
Co [1995] 2 Lloyd's Rep 608; [1996] 1 All ER 114 2.314
Cia Panamena de Seguros SA v. Prudential Lines Inc, 416 F.Supp 641 (DCZ 1976) 4.144
Cigna Insurance Asia Pacific v. Expeditors International of Washington [2002] AMC 1085 (CD
Cal 2001) 3.21, 3.75
Cigna Insurance Company of Puerto Rico v. The M/V Skanderborg [1996] AMC 600 4.126
Circle Freight International Ltd v. Medeast Gulf Exports Ltd [1988] 2 Lloyd's Rep 427 (CA)2.10,
2.11
Citi-March Ltd v. Neptune Orient Lines Ltd [1997] 1 Lloyd's Rep 72 2.312, 2.331
City Equitable Fire Insurance Co Ltd, Re [1925] Ch 407 (CA) 2.284
Claridge Holt & Co Ltd v. King & Ramsay (1920) 3 Ll L Rep 197 2.48, 2.71
Clark v. Sir William Arrol & Co Ltd 1974 SLT 90 2.243 Claxton Engineering Services Ltd v. TXM Olaj-es Gazkutato KFT [2011] EWHC 345 (Comm);
[2011] 1 Lloyd's Rep 510 (CA) 2.348
Clayton v. Woodman & Son (Builders) Ltd [1962] 2 QB 546; rvsd [1962] 2 QB 533 (CA) 2.196 Clemens Horst (E.) Co v. Norfolk and North Western American Steam Shipping Co (1906) 11
Com Cas 1413.9, 3.31
Cleobulos Shipping Co Ltd v. Intertanker Ltd (The Cleon) [1983] 1 Lloyd's Rep 586 (CA) 2.275
Cleon, The. Cleobulos Shipping Co Ltd v. Intertanker Ltd [1983] 1 Lloyd's Rep 586 (CA) 2.275
Cleton (1992) II ULR 186 (Rott DC) 3.87 Cliffe v. Hull & Netherlands Steamship Co Ltd (1921) 6 Ll L Rep 136 (CA) 2.97, 3.9, 3.33
Club Speciality (Overseas) Inc v. United Marine (1939) Ltd [1971] 1 Lloyd's Rep 4822.108, 2.171,
2.181, 2.258
Coca-Cola Financial Corp v. Finsat International Ltd (The Ira) [1996] 2 Lloyd's Rep 274; [1996]
3 WLR 849; [1998] QB 43 (CA) 2.277
Coggs v. Bernard (1703) 2 Ld Raym 909; 92 ER 107 2.99
Cohen v. Brantford International Ltd, CA, 8 December 1987, unreported 2.284
Coldman v. Hill [1919] 1 KB 443 (CA) 2.111
Colgate Palmolive Co v. M/V Atlantic Conveyor [1997] AMC 1478 (SDNY 1996) 3.20
Colgate Palmolive Co v. S.S. Dart Canada, 724 F. 2d. 313; [1984] AMC 305 (2d Cir. 1983) 3.19
Coli Shipping (UK) Ltd v. Andrea Merzario Ltd [2002] 1 Lloyd's Rep 608 1.18, 1.20, 2.56, 2.57,
2.92, 2.94, 3.31
Collbran, Re [1956] Ch 250 2.267
Collen v. Wright (1857) 8 E. & B 647 2.35
Colley v. Brewers Wharf and Transport Ltd (1921) 9 Ll L Rep 5 2.72, 2.105, 2.106
Colombiana, The. Compania Colombiana de Seguros v. Pacific Steam Navigation Co [1965] 1
QB 101; [1963] 2 Lloyd's Rep 479 2.312
Colverd (A. F.) & Co Ltd v. Anglo-Overseas Transport Co Ltd [1961] 2 Lloyd's Rep 352 2.52, 2.62,
2.105, 2.116, 2.182 Comalco Aluminium Ltd v. Mogul Freight Services Pty Ltd (The Oceanic Trader) (1993) 113
ALR 677 2.84, 4.124
Comandate Marine Corp v. Pan Australia Shipping Pty [2006] FCAFC 192; [2008] 1 Lloyd's
Rep 119 2.333
Commercial Bank of the Near East Ltd v. A, B, C, and D [1989] 2 Lloyd's Rep 319 2.331 Commercial Marine & Piling Ltd v. Pierse Contracting [2009] EWHC 2241 (TCC); [2009] 2

Commercial Union Insurance Co v. M/V Bremer Express [1999] AMC 2002 (SDNY) 3.32, 3.73
Commonwealth Petrochemicals v. S.S. Puerto Rico, 455 F.Supp 310 (D Md 1978); rvsd 607 F. 2d. 322 (4th Cir. 1979), [1979] AMC 2772 4.145, 4.147
Commonwealth Portland Cement Co Ltd v. Weber Lohmann & Co Ltd [1905] AC 66 (PC) 2.257
Compagnie Generale Maritime v. Diakan Spirit SA (The Ymnos) (No. 2) [1982] 2 Lloyd's Rep 574	4.88
Compania Colombiana de Seguros v. Pacific Steam Navigation Co (The Colombiana) [1965] 1
QB 101; [1963] 2 Lloyd's Rep 479 2.312
Compania Financiera Soleada SA v. Hamoor Tanker Corp Inc (The Borag) [1980] 1 Lloyd's Rep 111; rvsd [1981] 1 WLR 274; [1981] 1 Lloyd's Rep 483 (CA) 2.153
Compania Portorafti Commerciale SA v. Ultramar Panama Inc (The Captain Gregos) (No. 1)
[1990] 1 Lloyd's Rep 310 (CA) 2.307, 3.61, 3.106
Compania Portorafti Commerciale SA v. Ultramar Panama Inc (The Captain Gregos) (No. 2) [1990] 2 Lloyd's Rep 395 (CA)	2.40
Compania Sud Americano de Vapores v. Sinochem Tianjin Import & Export Corp (The
Aconcagua) [2010] EWCA Civ 1403; [2011] 1 Lloyd's Rep 683 (CA) 2.219, 2.235
Compania Sud Americano de Vapores v. Shipmair BV (The Teno) [1977] 2 Lloyd's Rep 289 2.275
Comptoir Franco-Anglais d'Exportation v. Yan Oppen (1922) 13 Ll L Rep 59 2.127, 2.128
Connolly Shaw v. Nordenfjeldske S.S. (1934) 50 TLR 418 2.136
Consumers Distributing Company Ltd v. Dart Containerline Co Ltd (Fed Ct Can, No.
T–2480–76, unreported) Continental Bank N.A. v. Aeakos Compania Naviera SA [1994] 1 WLR 588; [1994] 1 Lloyd's	3.89
Rep 505 (CA)2.331, 2.334, 2.347, 2.349
Continental Distributing Co Inc v. M/V Sea-Land Commitment [1992] AMC 1743 4.113
Continental Distributing Co Inc v. M/V Sea-Land Commitment [1994] AMC 82 (SDNY
1992) 4.118, 4.119
Continental Fertilizer Co Ltd v. Pionier Shipping CV (The Pionier) [1995] 1 Lloyd's Rep 223 2.312
Continental Insurance Co Ltd v. CLX Services [2003] AMC 2251 (Sup Ct Cal 2002) 3.89, 4.139
Cooper v. General Accident Fire and Life Assurance Corp [1922] 2 Ir R 214 2.283
Coopers Payen Ltd v. Southampton Container Terminal Ltd [2003] EWCA Civ 1223; [2004] 1
Lloyd's Rep 331 2.122
Coral, The. Balli Trading Ltd v. Afalona Shipping Ltd [1993] 1 Lloyd's Rep 1 4.126
Coral Int'l Inc v. Saudi Nat'l Lines, 439 So. 2d 1035 (CA Fl) 4.102
Cordis Dow Corp v. S.S. President Kennedy [1985] AMC 2756 (ND Cal 1984) Coreck Maritime GmbH v. Handelsveem BV (Case C–387/98) [2000] ECR I–9337 2.337, 2.343	3.30
Cory Brothers Shipping Ltd v. Baldan Ltd [1997] 2 Lloyd's Rep 58 2.261
County & District Properties Ltd v. C. Jenner & Son Ltd [1976] 2 Lloyd's Rep 728 2.238, 2.254
Cour d'Appel, Paris, 22.1.1993, Bulletin des Transports 1993, No. 2523, p. 402 4.76, 4.79
Cour d'Appel, Paris, 16.2.1996, Bulletin des Transports 1996, No. 2663, p. 402	3.52
Cour d'Appel, Paris, 10.4.1996 and 6.6.1996, Bulletin des Transports 1996, No. 2671, p. 557	4.79
Cour d'Appel, Paris, 19.2.2003, 2003 (4) ULR 1012	3.90
Cour d'Appel, Rouen, 7.2.1985, [1987] DMF 510 4.126
Cour d'Appel, Rouen, 28.2.2002 4.146
Cour de Cassation, 4.7.2000, (2000) 35 ETL 524	3.52
Coutinho Caro & Co (Canada) v. Owners of the Vessel Ermua (1979) 100 DLR (3d) 461; revsd
(1981) 121 DLR 571 (Fed. CA Can) 4.113 Cowper v. J.G. Goldner Pty Ltd (1986) 40 SASR 457 2.116
Cox v. London & North Western Ry Co (1862) 3 F & F 77 2.228
Crawford & Law v. Allan Line Steamship Co Ltd [1912] AC 130 (HL) 3.25, 3.33
Cr´edit Suisse Financial Products v. Soci´et´e G´en´erale D'Enterprises [1996] 5 Bank. LR 220; [1997] CLC 168 (CA) 2.338
Credit Suisse First Boston (Europe) Ltd v. MLC (Bermuda) Ltd [1999] 1 Lloyd's Rep 767 2.332
Credit Suisse First Boston (Europe) Ltd v. Seagate Trading Co Ltd [1999] 1 Lloyd's Rep 784 2.332
Crispin Co v. M.V. Morning Park, 578 F.Supp 359 (SD Tex 1984); [1985] AMC 766 4.145
Croudace Construction Ltd v. Cawoods Concrete Products Ltd [1978] 2 Lloyd's Rep 55 (CA) 2.292
Cunard Steamship Co Ltd v. Buerger [1927] AC 1; (1926) 25 Ll L Rep 215 (HL)	3.35
DCI Management Group Inc and Continental Insurance Co v. M.V. Miden Agan No. 03 Civ 448
(DLC) (Westlaw) SDNY, 14 May 2004 4.149
DHL GBS (UK) Ltd v. Fallimento Finmatica [2009] EWHC 291 (Comm); [2009] 1 Lloyd's Rep 430 2.348

DRL Ltd v. Wincanton Group Ltd [2011] EWCA Civ 839 (CA) 2.161
DSV Silo und Verwaltungsgesellschaft mbH v. Owners of the Sennar (The Sennar) (No. 2)
[1985] 1 WLR 490; [1985] 1 Lloyd's Rep 521 (HL) 2.331
Daewoo Heavy Industries Ltd v. Klipriver Shipping Ltd [2003] EWCA Civ 451; [2003] 1 All ER
(Comm) 801; [2003] 2 Lloyd's Rep 1 (CA)2.296, 2.307, 4.104
Daewoo International (America) Corp v. Sea-Land Orient Ltd [1998] AMC 2718 (D NJ); [2000] AMC 197 (3rd Cir. 1999) 4.116, 4.119
Dampskibsselskabet Danmark v. Poulseu 1913 SC 1043 2.286
Danzas v. National Bank of Alaska [1964] AMC 1832 (DC Alaska) 2.188
Daphne L, The; Feoso Maritime Co Ltd v. Faith Maritime Co Ltd, Sing CA, 25 August 2003 2.149
Dar es Salaam Motor Transport v. Mehta [1970] HCD 179 (Tanzania) 2.104
Darya Radhe, The. Bunge SA v. ADM DO Brasil LTDA [2009] EWHC 845 (Comm); [2009] 2
Lloyd's Rep 175 2.235, 3.115
Date & Cocke v. G.W. Sheldon & Co (London) Ltd (1921) 7 Ll L Rep 532.52, 2.105, 2.106, 2.116,
	2.231
Datec Electronic Holdings Ltd v. United Parcels Service Ltd [2007] UKHL 23; [2007] 1 WLR
1325; [2007] 2 Lloyd's Rep 114 (HL) 2.14, 2.203, 2.284
David Agmashenebeli, The. Owners of Cargo Lately Laden on Board the David Agmashenebeli
v. Owners of the David Agmashenebeli [2002] EWHC 104 (Admlty); [2003] 1 Lloyd's Rep
92 4.116 David Taylor & Son Ltd v. Bowden Transport Ltd [1966] 1 Lloyd's Rep 287 2.292
Davinder Singh v. M/V Saudi Dirayah [1993] AMC 2636 (SD Tex 1991)	3.13
Dawes v. Peck (1799) 8 TR 330	2.21
De Bloos (A.) Sprl v Bouyer SA (Case C–14/76) [1976] ECR 1497 2.355, 2.358
De Bussche v. Alt (1878) 8 Ch D 286 (CA) 2.141
Deaville v. Aeroflot Russian International Airlines [1997] 2 Lloyd's Rep 67 2.333, 2.365
Deepak Fertilisers & Petrochemicals Corp v. ICI Chemicals and Polymers Ltd [1999] 1 Lloyd's
Rep 387 (CA)2.247, 2.248, 2.252, 2.292
Dei Dogi v. Summa Trading Corp [1990] AMC 1628 4.113
Deltamax Freight System v. M/V Aristotelis [1999] AMC 1789 (DC Cal 1998) 4.101
Denby (Mark Edmund) v. Hellenic Mediterranean Line Co Ltd [1994] 1 Lloyd's Rep 320 2.347
Derby Resources AG v. Blue Corinth Marine Co Ltd (The Athenian Harmony) (No. 2) [1998]
2 Lloyd's Rep 425 2.280
Deutsche Bank AG v. Asia Pacific Communications Inc [2008] EWCA Civ 1094; [2008] 2
Lloyd's Rep 619 (CA) 2.344 Dexter Ltd (In Administrative Receivership) v. Harley (2001) Times, 2 April	2.362
District Court, Antwerp, Vol. II ETL 279	3.84
District Court, Rotterdam, 24.1.1992	3.85
Dock Services Ltd v. Caledonian Stevedoring Co Ltd (1948–49) 82 Ll L Rep 179 2.237
Dole Dried Fruit & Nut Co v. Trustin Kerwood Ltd [1990] 2 Lloyd's Rep 309 (CA) 2.273
Dolphina, The [2011] SGHC 273 (Sing HC); [2012] 1 Lloyd's Rep 304 2.317
Dolphin Maritime and Aviation Services Ltd v. Sveriges Angfartygs Assurans Forening [2009]
EWHC 716 (Comm); [2009] 2 Lloyd's Rep 123 2.363
Domicrest Ltd v. Swiss Bank Corp [1999] 1 Lloyd's Rep 80; [1998] 3 All ER 577 2.363
Dominique, The. Bank of Boston Connecticut (formerly Colonial Bank) v. European Grain & Shipping Ltd [1989] AC 1056; [1989] 1 Lloyd's Rep 431 (HL) 2.273, 2.276
Donald Stewart & Co v. John Lofthouse & Co (1921) 9 Ll L Rep 386 (CA) 2.261
Donohue v. Armco Inc [2001] UKHL 64; [2002] 1 Lloyd's Rep 425 (HL) 2.331, 2.333
Donner v. London & Hamburg Agency (1923) 15 Ll L Rep 63 2.108
Donovan v. Laing Wharton and Down Construction Syndicate Ltd [1893] 1 QB 629 (CA) 2.105
Dopplemayr Lifts Ltd v. Hapag-Lloyd Aktiengesellschaft [1982] 2 CF 772 3.31, 3.74
Dornoch Ltd v. Mauritius Union Assurance Co Ltd [2006] 2 Lloyd's Rep 475 2.338
Dresser UK and Others v. Falcongate Freight Management (The Duke of Yare) [1991] 2 Lloyd's
Rep 5572.340, 2.341, 2.343
Du Pont de Nemours v. The Mormacvega 493 F. 2d. 97 (2d. Cir. 1974); [1974] AMC 67; [1974]
1 Lloyd's Rep 2964.101, 4.103, 4.149
Duden, The. Sotrade Denizcilik Sanayi Ve Ticaret SA v. Amadou Lo [2008] EWHC 2762 (Comm); [2009] 1 Lloyd's Rep 145 2.333
Duffield v. Scott (1789) 3 Term Rep 374 2.256
Dugdale v. Lovering (1874–75) LR 10 CP 196 2.261

Duke of Yare, The. Dresser UK and Others v. Falcongate Freight Management [1991] 2 Lloyd's
Rep 557 2.340
Dumez France and Tracoba v. Hessische Landesbank (Case C–364/93) [1990] ECR I–2719 2.363
E.E. Caledonia Ltd (formerly Occidental Petroleum (Caledonia)) v. Orbit Valve Co Europe plc [1994] 2 Lloyd's Rep 239 (CA) 2.24, 2.257
EMI (New Zealand) Ltd v. Wm Holyman & Sons Pty Ltd and Another (The Maheno) [1977] 1
Lloyd's Rep 1; [1976] 2 NZLR 5677 (Sup Ct NZ)2.53, 2.57, 2.58, 2.59, 2.80
E.M.S. Industrie SA v. Polskie Towarzystwo Stevetowe [1986] AMC 217 (EDNY 1985)	4.94
East India Co v. Pullen (1726) 2 Stra. 690 2.105
East West Corp v. DKBS 1912 [2003] EWCA Civ 83; [2003] 1 All ER (Comm) 525 (CA) 2.59, 2.60,
	3.37, 3.52
Eastern Kayam Carpets Ltd v. Eastern United Freight Ltd, QBD, 6 December 1983, unreported,
Lexis2.30, 2.52, 2.8, 2.188, 2.310 Eastman Chemical International AG v. NMT Trading and Eagle Transport [1972] 2 Lloyd's Rep
252.104, 2.105, 2.117, 2.181
Econet Satellite Services Ltd v. VEE Networks Ltd [2006] EWHC 1664 (Comm); [2006] 2
Lloyd's Rep 423 2.273
Edwards v. Newland & Co (E Burchett, Third Party) [1950] 2 KB 534 (CA) 2.105
Effer SpA v. Kantner (Case C–38/81) [1982] ECR 825 2.357
Effort Shipping Co Ltd v. Linden Management SA (The Giannis NK) [1998] AC 605; [1998] 1
Lloyd's Rep 337; [1998] 2 WLR 206; [1998] 1 All ER 495 (HL)2.219, 2.235, 3.115
Egon Oldendorff v Libera Corp (No.1) [1995] 2 Lloyd's Rep 64 2.317
El Amria, The. Aratra Potato Co Ltd v. Egyptian Navigation Co [1981] 2 Lloyd's Rep 119 2.331
El Greco (Australia) Pty Ltd v. Mediterranean Shipping Co SA [2004] FCAFC 202; [2004] 2
Lloyd's Rep 537 (Fed Ct Aus) 4.134, 4.146, 4.147, 4.148, 4.149, 4.153
El-Khateib v. Eurofreighter [1980] AMC 893 (SDNY 1979) Elbe Maru, The. Nippon Yusen Kaisha v. International Import and Export Co [1978] 1 Lloyd's	3.35
Rep 2062.145, 2.248, 2.249, 2.255
Elder Dempster & Co Ltd v. Paterson Zochonis & Co Ltd [1924] AC 522; (1924) 18 Ll L Rep
319 (HL)	4.13
Elderslie Steamship Co Ltd v. Borthwick [1905] AC 93 (HL) 2.286
Electric Supply Stores Ltd v. Gaywood (1909) 100 LT 855 2.149
Electro-Tec Corp v. S.S. Dart Atlantica, 598 F.Supp 929 (D.C. Md. 1984), [1985] AMC 1606 4.103
Elektrim SA v. Vivendi Holdings 1 Corp [2008] EWCA Civ 1178; [2009] 1 Lloyd's Rep 59 (CA) 2.333
Elektronska Industrija Oour TVA v. Transped Oour Kintinentalna Spedicna [1986] 1 Lloyd's
Rep 492.55, 2.69, 2.72, 2.74, 2.77
Elena Shipping Ltd v. Aidenfield Ltd (The Elena) [1986] 1 Lloyd's Rep 425 2.276
Eleftheria, The. Owners of Cargo Lately Laden on Board the Eleftheria v. Owners of the
Eleftheria [1970] P 94; [1969] 1 Lloyd's Rep 237 2.331
Ellerman Lines Ltd v. Read [1928] 2 KB 144 (CA) 2.333 Elof Hansson Agency Ltd v. Victoria Motor Haulage Co Ltd (1938) 54 TLR 666; (1938) 60 Ll
L Rep 332 2.12, 2.133
Emery Air Freight Corp v. Nerine Nurseries Ltd [1997] 3 NZLR 723 2.79, 2.87, 2.92, 3.23
Emilio Clot & Co v. Compagnie Commerciale du Nord SA (1921) 8 Ll L Rep 380 2.4, 2.80, 2.86
Empresa Cubana Importadora de Alimentos v. Octavia Shipping Co SA (The Kefalonia Wind)
[1986] 1 Lloyd's Rep 273 2.311
Encyclopaedia Britannica v. The Hong Kong Producer, 422 F. 2d. 7 (2d. Cir. 1969), [1969] AMC 1741; [1969] 2 Lloyd's Rep 536 4.101
English Electric Valve Co Inc v. M/V Hoegh Mallard, 814 F.2d. 84 (2d. Cir. 1987) 4.101
Enviroco Ltd v. Farstad Supply A/S (The Far Service) [2009] EWCA Civ 1399; [2010] 2 Lloyd's
Rep 375 (CA); [2010] UKSC 18; [2010] 2 Lloyd's Rep 387 (SC)2.247, 2.252, 2.264 Epsilon Rosa, The. Welex AG v. Rosa Maritime Ltd [2003] EWCA Civ 938; [2003] 2 Lloyd's
Rep 509 2.333
Equitas Ltd v. Allstate Insurance Co [2009] Lloyd's Rep IR 227 2.345
Erich Gasser GmbH v. MISAT Srl (Case C–116/02) [2004] 1 Lloyd's Rep 222 2.347, 2.348, 2.349
Esmerelda 1, The. ACE Imports Pty v. Companhia de Navegacao Lloyd Brasileiro [1988] 1 Lloyd's Rep 206 (Sup Ct NSW) 4.113
Esso Petroleum Co Ltd v. Milton [1997] 1 WLR 938 (CA) 2.273

Etablissement Biret et Cie SA v. Yukeiteru Kaiun K.K. & Nissui Shipping Corp (The Sun
Happiness) [1984] 1 Lloyd's Rep 381	2.80
Etablissements Gustave Brunet SA v. M.V. Nedlloyd Rosario [1997] AMC 803 (SDNY 1996)4.101,
Euro Cellular (Distribution) plc v. Danzas Ltd [2003] EWHC 3161 (Comm); [2004] 1 Lloyd's	4.103
Rep 5212.122, 2.288, 2.297
European Enterprise, The. Browner International Ltd v. Monarch Shipping Co Ltd [1989] 2
Lloyd's Rep 185 3.37, 4.92, 4.150
Eurus, The. Total Transport Corp v. Arcadia Petroleum Ltd [1996] 2 Lloyd's Rep 408; affmd [1998] 1 Lloyd's Rep 351 (CA)2.237, 2.240, 2.2, 2.261
Eurymedon, The. New Zealand Shipping Co Ltd v. A.M. Satterthwaite & Co Ltd [1975] AC
154; [1974] 1 Lloyd's Rep 534 (PC NZ) 2.146, 3.61, 4.13
Evans v. Glasgow District Council (Negligence) 1979 SLT 270 (1 Div) 2.243, 2.295
Evans (J.) & Son (Portsmouth) Ltd v. Andrea Merzario Ltd [1975] 1 Lloyd's Rep 162; revsd
[1976] 1 WLR 1078; [1976] 2 Lloyd's Rep 165 (CA)2.47, 2.5, 2.86, 2.127, 2.128, 2.191, 2.296,
4.104, 4.106 Evialis v. SIAT [2003] 2 Lloyd's Rep 3772.317, 2.337, 2.349
Excalibur Ventures LLC v. Texas Keystone Inc [2011] EWHC 1624 (Comm); [2011] 2 Lloyd's
Rep 289 2.333
Exercise Shipping Co Ltd v. Bay Maritime Lines Ltd (The Fantasy) [1992] 1 Lloyd's Rep 235
(CA)	4.88
Exeter, The. Lyons-Magnus v. American Hawaiian; 41 F. Supp. 575; [1941] AMC 1550 (SDNY 1941)	3.38
Exportadora Valle de Colina SA v. A.P. Moller-Maersk A/S [2010] EWHC 3224 (Comm)	3.63

F.A. Machinery Logistics Inc v. M/V Jebel Ali [1998] AMC 2963 (SD Ga) 4.142
F.H. Bertling Ltd v. Tube Developments Ltd [1999] 2 Lloyd's Rep 55 (Ct Sess Scot) 2.21, 2.22,
2.127, 2.258 F.M.C. Corp v. Marjorie Lykes, 851 F.2d. 78 (2d Cir. 1988) 4.144
FR Lurssen Werft GmbH & Co v. Halle [2010] EWCA Civ 587; [2010] 2 Lloyd's Rep 265
(CA) 2.320
F.S. Stowell Ltd v. Nicholls & Co (Brighton) Ltd [1963] 2 Lloyd's Rep 275 2.292
Falconbridge Nickel v. Chimo Shipping Ltd [1974] SCR 933; [1969] 2 Lloyd's Rep 277 (Ex Ct Can) 4.134
Fantasy, The. Exercise Shipping Co Ltd v. Bay Maritime Lines Ltd [1992] 1 Lloyd's Rep 235
(CA)	4.88
Far Service, The. Enviroco Ltd v. Farstad Supply A/S [2009] EWCA Civ 1399; [2010] 2 Lloyd's
Rep 375 (CA); [2010] UKSC 18; [2010] 2 Lloyd's Rep 387 (SC)2.247, 2.252, 2.264
Federal Commerce & Navigation Co Ltd v. Molena Alpha Inc (The Nanfri, The Benfri, The Lorfri) [1978] QB 927; [1978] 2 Lloyd's Rep 132 (CA); affmd in part [1979] AC 757; [1979]
1 Lloyd's Rep 201 (HL)2.273, 2.274, 2.275
Federal Schelde, The. Miles International Corp v. Federal Commerce & Navigation Co Ltd
[1978] 1 Lloyd's Rep 285 (Sup Ct Quebec) 4.118
Federated Department Stores v. Brinke, 450 F.2d 1223 (5th Cir. 1971) 4.126
Feoso Maritime Co Ltd v. Faith Maritime Co Ltd (The Daphne L), Sing CA, 25 August 2003 2.149
Ferrexpo AG v. Gilson Investments Ltd [2012] EWHC 721 (Comm); [2012] 1 Lloyd's Rep 588 2.345
Ferryways NV v. Associated British Ports [2008] EWHC 225 (Comm); [2008] 1 Lloyd's Rep
6392.27, 2.292, 2.306, 2.308
Fesco Angara, The. OceanConnect UK Ltd v. Angara Maritime Ltd [2010] EWCA Civ 1050; [2011] 1 Lloyd's Rep 399 (CA) 2.333
Finagra (UK) Ltd v. OT Africa Line Ltd [1998] 2 Lloyd's Rep 622 3.52, 3.71
Finnrose, The. Fort Sterling Ltd v. South Atlantic Cargo Shipping NV [1994] 1 Lloyd's Rep 559 2.312
Fiona, The. Mediterranean Freight Services Ltd v. B.P. Oil International Ltd [1994] 2 Lloyd's
Rep 506 (CA) 2.242
Fiona Trust & Holding Corp v. Privalov [2007] UKHL 40; [2008] 1 Lloyd's Rep 254 (HL)2.337, 2.340, 2.344
Fireman's Fund Insurance Co v. Orient Overseas Container Line Ltd [2003] AMC 1795	3.54
Fireman's Fund Insurance Co v. Tropical Shipping and Construction Co Ltd [2001] AMC 2474
(11th Cir.) 4.140, 4.142

Firmin & Collins Ltd v. Allied Shippers Ltd [1967] 1 Lloyd's Rep 6332.117, 2.173, 2.186
Fisher v. Smith (1878–79) 4 App Cas 1 (HL) 2.152
Fishman & Tobin Inc v. Tropical Shipping and Construction Co Ltd [1999] AMC 1051 (SD
Fla); affmd [2001] AMC 1663 4.140, 4.141
Flamar Interocean v. Denmac (The Flamar Pride and The Flamar Progress) [1990] 1 Lloyd's Rep 434 2.27, 2.300
Floreana, In re The [1999] AMC 2930 (SD Tex) 4.143
Fonderie Officine Meccaniche Tacconi SpA v. Heinrich Wagner Sinto Maschinenfabrik GmbH
(HWS) (Case C–334/00) [2002] ECR I–7357 2.357, 2.362
Fort Sterling Ltd v. South Atlantic Cargo Shipping NV (The Finnrose) [1994] 1 Lloyd's Rep 559 2.313
Forum Craftsman, The [1984] 2 Lloyd's Rep 102; affmd [1985] 1 Lloyd's Rep 291 (CA) 2.341
Fothergill v. Monarch Airlines Ltd [1981] AC 251; [1980] 2 Lloyd's Rep 295 (HL) 3.96
Fowles v. G.W. Ry, 7 Ex 699 3.7
Fox and Associates Inc v. M/V Hanjin Yokohama [1998] AMC 1090 (CD Cal 1997) 4.113, 4.119
Frankfurt 13.10.1989 (Transportrecht 1990, No. 5, p. 196; Bulletin des Transports Inter nationaux Ferroviaires 1990, p. 116) 4.82
Frans Maas (UK) Ltd v. Samsung Electronics (UK) Ltd [2004] EWHC 1502; [2004] 2 Lloyd's
Rep 251 2.11, 2.16, 2.295, 2.296, 2.301, 2.309
Freedom Maritime Corp v. International Bulk Carriers (The Khian Captain (No. 2)) [1986] 1 Lloyd's Rep 429 2.275, 2.278
Freeman v. Birch (1833) 3 QB 492, 114 E.R. 596 2.21
Freight Systems Ltd v. Korea Shipping Corp (The Korea Wonis-Sun) [1990] HKLY 151 (LMLN No. 290) 2.78, 3.13, 3.23
Frenkel v. MacAndrews & Co Ltd [1929] AC 545; (1929) 33 Ll L Rep 191 (HL) 2.136, 2.137
Front Comor, The. Allianz SpA v. West Tankers Inc (Case C–185/07) [2009] 1 AC 1138; [2009] 1 Lloyd's Rep 413 2.348, 2.352
Front Comor, The. West Tankers Inc v. RAS Riunione Adriatica di Sircuta SpA [2007] UKHL 4; [2007] 1 Lloyd's Rep 391 (HL) 2.352
Front Comor, The. West Tankers Inc v. Allianz SpA [2012] EWHC 854 (Comm); [2012] 2 Lloyd's Rep 103 2.348
Fruit of the Loom v. Arawak [2000] AMC 387 (SD Fla, 1998) 3.7, 3.19, 3.76
Fujitsu Computer Products Corp v. Bax Global Inc [2005] EWHC 2289 (Comm); [2005] 2 CLC
760 3.78

GHSP Inc v. AB Electronic Ltd [2010] EWHC 1828 (Comm); [2011] 1 Lloyd's Rep 432 2.15
GIE Group Concorde v. Master of the ''Vessel Suhadiwarno Panjan'' (Case C–440/97) [1999] ECR I–6307; [1999] Euro CL 10; [2000] All ER (EC) 865 2.355, 2.358
Gabriele Wehr, The (1990) 25 ETL 589 (SC Neth) 3.68
Gagniere (A.) & Co Ltd v. Eastern Company of Warehouses Insurance & Transport of Goods
with Advances Ltd (1921) 7 Ll L Rep 1882.4, 2.86
Galatia, The. M Golodetz & Co Inc v. Czarnikow-Rionda Co Inc [1979] 2 Lloyd's Rep 450 4.113
Galaxy Special Maritime Enterprise v. Prima Ceylon Ltd (The Olympic Galaxy) [2006] EWCA
Civ 528; [2006] 2 Lloyd's Rep 27 (CA) 2.351
Gallaher v. British Road Services and Containerway & Roadferry Ltd [1974] 2 Lloyd's Rep 4412.295,
2.296
Gallimore v. Moore (1867) 6 SCR (NSW) 388 2.149
Garlick v. W. & H. Rycroft Ltd [1982] CAT 277; [1984] 134 New LJ 607 2.100, 2.117
Garnham, Harris & Elton v. Alfred W. Ellis (Transport) [1967] 1 WLR 940; [1967] 2 Lloyd's Rep 22 2.48, 2.49, 2.51, 2.140, 2.296, 2.307
Gebr. Bellmer K.G. v. Terminal Services Houston, 711 F. 2d 622 (5th Cir. 1983) 4.145
Geering v. Stewart Transport [1967] NZLR 802 2.105
Gefco (UK) Ltd v. Mason (No. 1) [1998] 2 Lloyd's Rep 585 (CA) 1.26, 2.25
Geldof Metaalconstructie NV v. Simon Carves Ltd [2010] EWCA Civ 667; [2011] 1 Lloyd's Rep 517 (CA) 2.267, 2.273
General Feeds Inc v. Burnham Shipping Corp (The Amphion) [1991] 2 Lloyd's Rep 101 2.235
General Motors Corp v. Cast (1993) Ltd (The Cast Muskox) (1994) 378 LMLN 2 (Fed Ct Can
(Trial Div), 28 Feb 1994) 4.122
Geofizika DD v. MMB International Ltd Greenshields Cowie & Co Ltd (Third Party) (The
Green Island) [2010] EWCA Civ 459; [2010] 2 Lloyd's Rep 1 (CA) 2.118–2.120, 2.132, 4.100

George Mitchell (Chesterhall) Ltd v. Finney Lock Seeds Ltd [1983] 2 AC 803; [1983] 2 Lloyd's
Rep 272 (HL) 2.31, 2.292
George Pulman & Sons Ltd v. F.E. Crowe (t/a Crowe & Co) (1920) 3 Ll L Rep 100 2.109, 2.111
Giannis NK, The. Effort Shipping Co Ltd v. Linden Management SA [1998] AC 605; [1998] 1
Lloyd's Rep 337; [1998] 2 WLR 206; [1998] 1 All ER 495 (HL)2.219, 2.235, 3.115
Gibbon v. Paynton (1796) 4 Burr 2298 2.205
Giblin v. McMullen (1867–69) LR 2 PC 317 (PC Aus)	2.99
Gillespie Bros & Co Ltd v. Roy Bowles Transport Ltd, Rennie Hogg Ltd (Third Party) [1973] QB
400; [1973] 1 Lloyd's Rep 10 (CA) 2.227, 2.250, 2.292, 2.295, 4.5, 4.6
Gillette Industries Ltd v. W.H. Martin Ltd [1966] 1 Lloyd's Rep 57 (CA) 2.97, 2.113
Giorgis Carras, The. Louis Dreyfus Commodities Ltd v. Bolster Shipping Co Ltd [2010] 1732
(Comm); [2011] 1 Lloyd's Rep 455 2.333
Glasgow West Housing Association Ltd v. Siddique 1998 SLT 1081 2.132
Glebe Island Terminals Pty v. Continental Seagram Pty (The Antwerpen) [1994] 1 Lloyd's Rep 213 (CA NSW) 2.297, 3.14
Glencore Grain Ltd v. Agros Trading Co Ltd [1999] 2 Lloyd's Rep 410; [1999] CLC 1696
(CA) 2.273
Glencore International A.G. v. Metro Trading International Inc (No. 1) [1999] 2 Lloyd's Rep
632 2.347
Glynn v. Margetson & Co [1893] AC 351 (HL) 2.136
Glyn Mills Currie & Co v. East and West India Dock Co (1881–82) LR 7 App Cas 591 (HL)	2.90
Glyphics Media Inc v. M/V Conti Singapore [2003] AMC 851 (SDNY)	3.21
Godafoss, The, 1.6.2012 (Neth SC)	3.85
Gomer & Co v. Pitt & Scott Ltd (1922) 12 Ll L Rep 115 (CA) 2.101, 2.199
Good Luck, The (No. 2). Bank of Nova Scotia v. Hellenic Mutual War Risk Association
(Bermuda) Ltd [1991] 2 Lloyd's Rep 191 (HL) 2.220
Goodwin Ferreira & Co Ltd v. Lamport & Holt Ltd (1929) 34 Ll L Rep 192 4.123
Gore v. Van der Lann [1967] 2 QB 31; [1967] 1 Lloyd's Rep 145 (CA) 2.248
Gosse Millard Ltd v. Canadian Government Merchant Marine Ltd (The Canadian Highlander)
[1929] AC 223; (1928) 32 Ll L Rep 91 (HL)	4.25
Gould v. South Eastern & Chatham Ry Co [1920] 2 KB 191 2.228, 4.128
Goya Foods Inc v. S.S. Italia [1987] AMC 817 (2d Cir. 1983)	3.28
Grace Plastics Ltd v. The Bernd Wesch II (1971) FC 387 4.128
Granite State Insurance Co v. Hanjin Shipping Co Ltd [1995] AMC 196 (CD Cal 1994)	3.18
Granite State Insurance Co v. M/V Cara¨ıbe [1994] AMC 686 (USDC Puerto Rico 1993) 4.143
Granville Oils & Chemicals Ltd v. Davies Turner & Co Ltd, Leeds District Registry Mercantile
Court, 21 October 2002; [2003] EWCA Civ 570; [2003] 2 Lloyd's Rep 356 (CA)2.11, 2.44, 2.75,
2.112, 2.178, 2.186, 2.301, 2.309
Great American Insurance Companies v. M/V Romeral [1997] AMC 2431 (ED La) 4.101, 4.103
Great Northern Railway Co v. L.E.P. Transport & Depository Ltd [1922] 2 KB 742; (1922) 11
Ll L Rep 133 (CA)2.219, 2.224, 2.227, 2.235
Great Northern Railway v. Swaffield (1874) LR 9 Ex 132 2.169, 2.173
Great Northern Railway v. Witham (1873) LR 9 CP 16 2.292
Great Western Railway v. Bagge (1885) 15 QBD 625	2.21
Great Western Railway v. James Durnford (1928) 139 LT 145 2.240, 2.252
Green Island, The. Geofizika DD v. MMB International Ltd Greenshields Cowie & Co Ltd
(Third Party) [2010] EWCA Civ 459; [2010] 2 Lloyd's Rep 1 (CA)2.118–2.120, 4.100
Green (R.W.) Ltd v. Cade Bros. Farm [1963] 1 Lloyd's Rep 602 2.31, 2.292, 2.308
Green (R.H.) & Silley Weir Ltd v. British Railways Board [1985] 1 All ER 237; (1985) 17 BLR 94 2.254
Greene Wood & McLean v. Templeton Insurance Ltd [2009] EWCA Civ 65; [2009] 1 WLR 2013
(CA) 2.351
Greeves v. West India and Pacific S.S. (1870) 22 LT 6153.7, 3.9
Grimaldi Compagnia di Navigazione SpA v. Sekihyo Lines Ltd (The Seki Rolette) [1998] 2
Lloyd's Rep 638 2.311 Grogan v. Robin Meredith Plant Hire, The Times, 20 February 1996 (CA)	2.10
Gromal (UK) Ltd (in liquidation) v. W.T. Shipping Ltd, CA, 13 July 1984, unreported, Lexis2.161,
2.254, 2.261, 2.262, 2.267
Gross Machinery Group v. M/V Alligator Independence [1994] AMC 732 (SDNY 1992)	3.23
Groupe Chegaray/V De Chalus v. P&O Containers [2001] AMC 1858 (11th Cir.) 4.140, 4.145, 4.149

Grovit v. De Nederlandsche Bank NV [2005] EWHC 2944 (QB); [2006] 1 Lloyd's Rep 636
(QBD); [2007] EWCA Civ 953; [2008] 1 WLR 51 (CA) 2.364
Grovit v. De Nederlandsche Bank NV [2010] EWCA Civ 459; [2010] 2 Lloyd's Rep 1 (CA) 2.352
Grumont, The. Burck Mills Ltd v. Black Sea Steamship Co (1973) FC 387, [1973] 2 Lloyd's Rep 531 4.128
Guadano v. S.S. Cap Vincent [1973] FC 726 4.101
Gudermes, The. Mitsui & Co Ltd v. Novorossiysk Shipping Co [1991] 1 Lloyd's Rep 456	2.40
Guignan Freres v. Cox (1920) 5 Ll L Rep 49 2.186
Gulf Bank KSC v. Mitsubishi Heavy Industries Ltd [1994] 1 Lloyd's Rep 323 2.331
Gulf Grain, The and The El Amaan. Atlas Shipping Agency (UK) Ltd v. Suisse Atlantique
Societe d'Armement Maritime SA [1995] 2 Lloyd's Rep 188 2.357

HIH Casualty & General Insurance Ltd v. Chase Manhattan Bank [2003] UKHL 6; [2003] 1 All
ER (Comm) 349 (HL)2.242, 2.295, 2.309
HSBC Insurance Ltd v. Scanwell Container Line Ltd [2001] AMC 1621; [2002] AMC 411 (CD
Cal 2001) 3.33, 3.75
Habib Bank Ltd v. Central Bank of Sudan [2006] EWHC 1767 (Comm); [2006] 2 Lloyd's Rep
412 2.280
Hadley v. Baxendale (1854) 9 Ex 341 2.226, 2.298
Hadley Design Associates Ltd v. The Lord Mayor and Citizens of the City of Westminster [2003]
EWHC 1617 (TCC); [2004] TCLR 1	2.27
Haemopharm Inc v. M/V MSC Indonesia [2002] AMC 1297 (SDNY)4.139, 4.140, 4.141
Hair and Skin Trading Co Ltd v. Norman Airfreight Carriers Ltd and World Transport Agencies
[1974] 1 Lloyd's Rep 4432.55, 2.67, 2.7, 2.261, 2.264
Haji-Ioannou v. Frangos [1999] 2 Lloyd's Rep 337 (CA) 2.344
Hall v. Heart of England Balloon Ltd, Birm CC, 13.102009; [2010] 1 Lloyd's Rep 373 2.311
Halm Industries v. Timur Star [1985] AMC 391 (SDNY 1984)2.87, 3.14, 3.20, 3.23, 3.89
Hamburg Star, The [1994] 1 Lloyd's Rep 399 3.31, 4.89
Hamed el Chiaty & Co (t/a Travco Nile Cruise Lines) v. Thomas Cook Group Ltd (The Nile
Rhapsody) [1994] 1 Lloyd's Rep 382 (CA) 2.344
Hamlyn & Co v. Talisker Distillery [1894] AC 202 (HL) 2.316
Hanak v. Green [1958] 2 QB 9 (CA) 2.273
Hancock Shipping Co Ltd v. Deacon & Trysail (Private) Ltd (The Caspar Trader) [1991] 2
Lloyd's Rep 550 2.255
Hanjin Marseilles, The. Trane Co v. Hanjin Shipping Co Ltd [2001] 2 Lloyd's Rep 735 (HK
HC)	3.70
Happy Ranger, The. Parsons Corp v. C.V. Scheepvaartonderneming Happy Ranger [2001] 2
Lloyd's Rep 357 (CA)3.37, 3.56, 3.70, 4.104
Hari Bhum, The [2004] 1 Lloyd's Rep 206 2.329, 2.333
Harlow & Jones Ltd v. P.J. Walker Shipping & Transport Ltd [1986] 2 Lloyd's Rep 141 2.66, 2.251
Harper (A.C.) & Co Ltd v. R.D. Mackechnie & Co (1925) 22 Ll L Rep 514 2.178
Harpers Trading (Singapore) Pte Ltd v. R.F.L. International (The Planeta) (1994, unreported,
NSW) 4.126
Harris v. G.W. Rly (1876) 1 QBD 515	2.10
Harris (L.) (Harella) Ltd v. Continental Express Ltd and Burn Transit Ltd [1961] 1 Lloyd's Rep
251 2.18, 2.52, 2.58, 2.62, 2.69, 2.105, 2.172, 2.264
Harrison and Sons Ltd v. R.T. Stewart Transport Ltd (1993) 28 ETL 747 2.366
Harrods (Buenos Aires) Ltd (No. 2), Re [1992] Ch.72 (CA) 2.344, 2.345
Hartford Fire Insurance Co v. Novocargo USA [2003] AMC 851 (SDNY) 3.21, 4.93
Hartford Fire Insurance Co v. OOCL Bravery [2000] 1 Lloyd's Rep 394; [2000] AMC 1305
(SDNY 1999), rvsd [2001] AMC 25 (2d Cir., 2000) 3.7, 3.75, 3.77
Hartford Fire Insurance Co v. Pacific Far East Line Inc [1974] AMC 1475 (9th Cir., 1974) 4.142
Hartford Fire Insurance Co v. Savannah [1991] AMC 1923 (SDNY 1991) 3.27, 4.120
Hartford Fire Insurance Co v. Trans Freight Lines Inc [1998] AMC 1161 (4th Cir.), [1994]
AMC 1650 (Mass 1994) 4.118, 4.119
Hatton v. Car Maintenance Co Ltd [1915] 1 Ch 621 2.151
Hatzl v. XL Insurance Co Ltd [2009] EWCA Civ 223; [2010] 1 WLR 470; [2009] 1 Lloyd's Rep 555 (CA) 2.365
Havhelt, The [1993] 1 Lloyd's Rep 523 2.312, 2.331
Hayes-Leger Assocs v. M.V. Oriental Knight, 765 F.2d 1076 (11th Cir. 1985); [1986] AMC
17244.141, 4.142, 4.147, 4.153

Hedley Byrne & Co Ltd v. Heller & Partners Ltd [1964] AC 465; [1963] 1 Lloyd's Rep 485
(HL) 2.193, 2.197, 2.201, 2.235, 2.357
Heinz-Wattie Ltd v. Hamburg Sudamerikanische Dampschiffarhrts-gesellschaft (No. 2), HC NZ,
24 March 2000, Auckland Registry CP451/96 2.312
Hellaby v. Weaver (1851) 17 LTOS 271 2.105
Henderson v. Merrett Syndicates Ltd (No. 1) [1995] 2 AC 145; [1994] 2 Lloyd's Rep 468; [1994]
3 All ER 506 (HL)2.96, 2.114, 2.132, 2.144, 2.145, 2.196, 2.197, 2.199, 2.201, 2.357
Henderson v. Merrett Syndicates Ltd (No. 2) [1996] PNLR 32	2.97
Henderson v. Stevenson (1870–75) LR 2 Sc & Div 470; (HL)	2.10
Heron II, The. Koufos v. C. Czarnikow Ltd [1969] 1 AC 350; [1967] 2 Lloyd's Rep 457 (HL) 2.299
Herr-Voss Corp v. Columbus Line [1994] AMC 77 (D Md 1992) 3.17, 3.47
Heskell v. Continental Express Ltd (1949–50) 83 Ll L Rep 438 2.58, 2.111, 2.298
Heugh v. L. & N.W. Ry. (1870) LR 5 Ex 51 2.169
Hewden Tower Cranes Ltd v. Wolffkran GmbH [2007] EWHC 857 (TCC); [2007] 2 Lloyd's
Rep 138 2.337, 2.338, 2.340, 2.343, 2.362
Hibernian, The [1907] P 277 (CA)3.9, 3.31
Hida Maru, The. Kuwait Oil Co (KSC) v. Idemitsu Tankers KK [1981] 2 Lloyd's Rep 510
(CA) 2.331
Higginbotham v. G.N. Ry (1861) 2 F & F 796; 175 ER 1289	4.25
Highland Crusader Offshore Partners LLP v. Deutsche Bank AG [2009] EWCA Civ 725; [2009] 2 Lloyd's Rep 617 (CA) 2.331, 2.333
Hippisley v. Knee Bros. [1905] 1 KB 1 2.167
Hiram Walker & Sons Inc v. Kirk Line [1993] AMC 965; [1995] AMC 879 (11th Cir. 1992,
1994)	3.14
Hirdaramani v. OCS, Hong Kong H Ct, 18 July 2000 2.112
Hirst v. Page (1891) 7 TLR 537 2.151
Hispanica de Petroles SA v. Vencedora Oceanica Navegacion SA (The Kapetan Markos NL) (No.
1) [1986] 1 Lloyd's Rep 211 (CA) 2.312
Hoare v. Great Western Railway (1877) 37 LT 186 2.187
Hobbs v. Peters Transport Co Pty Ltd (1971) 124 CLR 220 2.116
Holland Colombo Trading Society Ltd v. Alawdeen (Segu Mohamed Khaja) [1954] 2 Lloyd's
Rep 45 (PC)	3.10
Hollandia, The and The Morviken. Owners of Cargo on Board the Morviken v. Owners of the
Hollandia [1983] 1 AC 565; [1983] 1 Lloyd's Rep 1 (HL) 2.318
Hollier v. Rambler Motors (A.M.C.) Ltd [1972] 2 QB 71 (CA) 2.147
Holstencruiser, The. Iverans Rederei A/S v. M.S. Holstencruiser Seeschiffahrts GmbH & Co
K.G. [1992] 2 Lloyd's Rep 3783.7, 4.88
Holwell Securities Ltd v. Hughes [1974] 1 WLR 155 (CA) 2.147
Homburg Houtimport BV v. Agrosin Private Ltd (The Starsin) [2003] UKHL 12; [2003] 2 WLR
711; [2004] 1 AC 715 (HL) 2.245, 2.247, 2.252, 3.20, 3.37, 3.84


Homecraft Weavers Ltd v. George Ewer & Co Ltd (1945) 78 Ll L Rep 496 2.49, 2.140
Hong Kong and Shanghai Banking Corp v. Kloeckner & Co AG [1990] 2 QB 514; [1989] 2
Lloyd's Rep 323 2.277
Horn Linie GmbH & Co v. Panamericana Formas e Impresos SA (The Hornbay) [2006] EWHC
373 (Comm); [2006] 2 Lloyd's Rep 44 2.317, 2.331
Hornbay, The. Horn Linie GmbH & Co v. Panamericana Formas e Impresos SA [2006] EWHC 373 (Comm); [2006] 2 Lloyd's Rep 44 2.317, 2.331
Horne v. Midland Railway Co (1873) LR 8 CP 131 2.291
Hotel Services Ltd v. Hilton International Hotels (UK) Ltd [2000] 1 All ER (Comm) 750
(CA) 2.292
Hough v. P & O Containers Ltd [1998] 2 Lloyd's Rep 318; [1998] 3 WLR 851 2.344
Houghland v. R.R. Low (Luxury Coaches) Ltd [1962] 1 QB 694 (CA) 2.99, 2.100, 2.122
Houlden & Co v. S.S. Red Jacket (The Red Jacket) [1977] AMC 1382 (SDNY 1977); affmd 582
F. 2d. 1271 (2d Cir.), cert den 439 U.S. 1128; [1979] AMC 2018; [1978] 1 Lloyd's Rep 300
(US Ct)4.103, 4.127, 4.153
Houlder v. General Steam Navigation (1862) 3 F & F 170 2.170
Howard v. Shirlstar Container Transport [1990] 3 All ER 366 (CA)	4.7
Howard Marine & Dredging Co Ltd v. A. Ogden & Sons (Excavations) Ltd [1978] QB 574;
[1978] 1 Lloyd's Rep 334 (CA) 2.197, 2.198
Hugh Mack & Co Ltd v. Burns & Laird Lines Ltd (1944) 77 Ll L Rep 377 (CA NI) 2.82, 2.90 Hunt & Winterbotham Ltd v. Morny & Co (1922) 12 Ll L Rep 286 2.285, 2.296

Hunt & Winterbothom (West of England) v. B.R.S. Parcels [1962] 1 QB 617; [1961] 2 Lloyd's
Rep 422 (CA) 2.297
Huntoon Co v. Kolynos Inc [1930] 1 Ch 528 (CA) 2.220
IFE Fund SA v. Goldman Sachs International [2006] EWHC 2887 (Comm); [2007] 1 Lloyd's Rep 264 2.201
I.M. Properties plc v. Cape & Dalgleish [1998] 3 WLR 457; [1998] 3 All ER 203 2.279
I.N.A. v. American Argosy [1984] AMC 1547 (2d Cir.) 2.87, 3.23
I.N.A. v. Dart Containerline, 629 F.Supp 781 (ED Va 1985) [1987] AMC 424.101, 4.103, 4.116
I.N.A. v. Frio Brazil [1990] AMC 2506 (MD Fla) 4.119, 4.141
INA v. Savannah [1998] AMC 1029 (SDNY 1997) 3.14
I.P. Metal Ltd v. Ruote Oz SpA [1993] 2 Lloyd's Rep 60; affmd [1994] 2 Lloyd's Rep 560 (CA)2.338,
2.339, 2.346
I.T.O. Ltd v. Miida Electronics Inc [1986] AMC 2580 (Sup Ct Can, 1986) 3.13, 3.14
Idefjord, The [1940] AMC 1280 (2d Cir. 1940) 3.33
Ilsinger v. Dreschers (C–180/06) [2009] ECR I–3961 2.335
Immediate Transportation Co Ltd v. Speller Willis & Co (1920) 2 Ll L Rep 645 2.49, 2.72, 2.167,
2.173, 2.258
Import Export Metro Ltd v. Compania Sud Americana De Vapores [2003] 1 Lloyd's Rep 405 2.331 Imvros, The. Transocean Liners Reederei GmbH v. Euxine Shipping Co Ltd [1999] 1 Lloyd's
Rep 848 2.295 Inco Europe Ltd v. First Choice Distribution [1999] 1 WLR 270; [1999] 1 All ER 820 (CA)2.55,
2.64, 2.70, 2.72, 2.77
Indemnity Insurance Co of North America v. Hanjin Shipping Co [2003] AMC 2705 (7th Cir.) 3.70
Indemnity Insurance Co of North America v. Schneider Freight USA [2001] AMC 2153 (C.D. Cal.) 3.17, 3.21
India (Republic of) v. India Steamship Co Ltd (The Indian Endurance and The Indian Grace)
(No. 2) [1997] 3 WLR 818; [1998] 1 Lloyd's Rep 1 (HL) 2.312, 2.333 Indian Oil Corp Ltd v. Vanol Inc, ''Indian Oil'' [1991] 2 Lloyd's Rep 634; revsd [1992] 2 Lloyd's
Rep 563 (CA) 2.17 Industrie Chimiche Italia Centrale v. Alexander G. Tsavliris & Sons Maritime Co (The Choko
Star) [1995] 2 Lloyd's Rep 608; [1996] 1 All ER 114 2.314
Industrie Tessili Italiana Como v. Dunlop AG (Case 12/76) [1976] ECR 1473 2.355, 2.358
Ines, The. M.B. Pyramid Sound NV v. Briese-Schiffahrts GmbH & Co K.G. M.S. ''Sina'' [1995] 2 Lloyd's Rep 144 3.11, 3.31
Ingersoll Milling Machine Co v. M.V. Boden [1987] AMC 1131 (SDNY 1985, 1986) 4.101
Insurance Co of North America v. Blue Star (North America) [1997] AMC 2434; (1997) 467
LMLN (SDNY) 4.101, 4.103 Insurance Co of North America v. M/V Frio Brazil [1990] AMC 2506 4.149
Insurance Co of North America v. Ocean Lynx [1991] AMC 64 (11th Cir. 1990) 3.23, 3.38
Insurance Co of North America v. S.S. Zim, Hong Kong [1988] AMC 1047 3.47
Insured Financial Structures Ltd v. Elektrocieplownia Tychy SA [2003] EWCA Civ 110; [2003] 2 WLR 851 2.344
Inter-American Foods Inc v. Coordinated Caribbean Transport Inc, 313 F.Supp 1334 (SD Va
1970) 4.116, 4.141 Intercargo Insurance Company v. L.C. Shipping Inc [1998] AMC 2561 (App Div Sup Ct County
LA) 4.113
Intercontainer Interfrigo SC (ICF) v. Balkenende Oosthuizen BV (Case C–133/08) [2010] 2 Lloyd's Rep 400 2.322, 2.323, 4.39
Interfoto Picture Library Ltd v. Stiletto Visual Programmes Ltd [1989] QB 433 (CA) 2.10
International Air and Sea Cargo GmbH v. Owners of the Chitral (The Chitral) [2000] 1 Lloyd's Rep 529 3.56
International Art Depositories v. Davies Turner & Co Ltd, Lloyd's List, 27 April 1928 2.186
International Bulk Shipping and Services Ltd v. Minerals and Metals Trading Corp of India [1996] 1 All ER 1017; [1996] 2 Lloyd's Rep 474 (CA) 2.314
International Distillers and Vintners Ltd (t/a Percy Fox & Co) v. J.F. Hillebrand (UK) Ltd, The Times, 25 January 2000 2.314
International Factory Sales v. The Alexander Serafimovich [1976] 1 FC 35 4.137
Internet Broadcasting Corp v. MAR LLC [2009] EWHC 744 (Ch) 2.295

Investors Compensation Scheme Ltd v. West Bromwich Building Society (No. 1) [1998] 1 WLR
896 (HL) 2.240
Ion, The. Unicoopjapan and Marubeni-Iida Co v. Ion Shipping Co [1971] 1 Lloyd's Rep 541	2.32
Ira, The; Coca-Cola Financial Corp v. Finsat International Ltd [1996] 2 Lloyd's Rep 274; [1996]
3 WLR 849; [1998] QB 43 (CA) 2.277
Irini A, The (No. 1). Ascot Commodities NV v. Northern Pacific Shipping [1999] 1 Lloyd's Rep
196 2.333
Ishag v. Allied Bank International, Fuhs and Kotalimbora [1981] 1 Lloyd's Rep 92	2.90
Island Archon, The. Triad Shipping Co v. Stellar Chartering and Brokerage Inc [1994] 2 Lloyd's
Rep 227 (CA) 2.261
Italia Di Navigazione SpA v. M.V. Hermes I, 724 F.2d 21 (2d Cir. 1983) 4.102
Iverans Rederei A/S v. M.S. Holstencruiser Seeschiffahrts GmbH & Co K.G. (The Hol
stencruiser) [1992] 2 Lloyd's Rep 3783.7, 4.88

J. Spurling Ltd v. Bradshaw [1956] 1 WLR 461; [1956] 1 Lloyd's Rep 392 (CA) 2.297
J.C.B. Sales Ltd v. M.V. Seijin [1996] AMC 1507 (SDNY)	2.87
J.I. Macwilliam Co Inc v. Mediterranean Shipping Co SA (The Rafaela S) [2003] EWCA Civ
556; [2003] 2 Lloyd's Rep 113; [2003] All ER (Comm) 219 (CA); [2005] UKHL 11;[2005]
1 Lloyd's Rep 347; [2005] 2 AC 423 (HL) 2.82, 2.84, 2.88, 3.6
JP Morgan Europe Ltd v. Primacom AG [2005] EWHC 508 (Comm); [2005] 2 Lloyd's Rep
665 2.347
Jaffer Esmail & Co v. Sorabjee M. Hooker, 6 EALR 35 2.109
Jagenberg Inc v. Georgia Ports Authority [1995] AMC 2333 (SD Ga 1995) 3.15, 3.20
James v. Europe West Indies Lines (UK) Ltd, (CA), 8 October 1997, unreported	2.47
James & Co Scheepvaart en Handelmij BV v. Chinecrest Ltd [1979] 1 Lloyd's Rep 126 (CA) 2.276
James Archdale & Co Ltd v. Comservices Ltd [1954] 1 WLR 459 (CA) 2.243, 2.252
James Buchanan & Co Ltd v. Hay's Transport Services Ltd [1972] 2 Lloyd's Rep 535 2.59, 2.100
James N. Kirby Pty Ltd v. Norfolk Southern Railway Co; sub nom Norfolk Southern Railway Co
v. James N. Kirby Pty Ltd [2002] AMC 2113 (11th Cir.); revsd 543 U.S. 14; [2004] AMC
2705 2.87, 3.17, 3.19, 3.22, 3.60, 3.127, 3.141
James Vale & Co v. Van Oppen & Co Ltd (1921) 6 Ll L Rep 167; 37 TLR 367 2.178, 2.183, 2.186
Jarl Tr¨a AB v. Convoys Ltd [2003] 2 Lloyd's Rep 459 2.157, 2.161
Jay Bola, The. Payabi v. Armstel Shipping Corp [1992] 2 Lloyd's Rep 48 2.311, 2.312
Jenkins v. Smith (1969) 6 DLR (3d) 309 2.100
Jet2.Com Ltd v. Blackpool Airport Ltd [2012] EWCA Civ 417; 2012 WL 1067776 2.123
Jindal Iron and Steel; Co Ltd v. Islamic Solidarity Shipping Co (The Jordan II) [2004] UKHL 49;
[2005] 1 Lloyd's Rep 57(HL) 4.125, 4.126
Jockey International Inc v. M/V Leverkusen Express [2002] AMC 2377 (SDNY)	3.21
Jogia (A Bankrupt), Re [1988] 1 WLR 484 2.331
John Carter (Fine Worsteds) Ltd v. Hanson Haulage (Leeds) Ltd [1965] 1 QB 495; [1965] 1
Lloyd's Rep 49 (CA) 2.49, 2.140
John Dee Group Ltd v. WMH (21) Ltd (formerly Magnet Ltd) [1997] BCC 518 2.277
John McCann & Co v. Pow [1974] 1 WLR 1643 (CA) 2.142
John Rigby (Haulage) v. Reliance Marine Insurance Co [1956] 2 QB 468; [1956] 2 Lloyd's Rep
10 (CA) 2.78, 3.13
Johnson v. Taylor Bros & Co Ltd [1920] AC 144; (1919) 1 Ll L Rep 183 (HL) 2.351
Johnson Matthey & Co v. Constantine Terminals Ltd [1976] 2 Lloyd's Rep 215 2.23, 2.116
Johnson Matthey Bankers Ltd v. State Trading Corp of India Ltd [1984] 1 Lloyd's Rep 427	2.15
Joint Stock Asset Management Co Ingosstrakh-Investments v. BNP Paribas SA [2012] EWCA
Civ 644; [2012] 1 Lloyd's Rep 649 2.333, 2.351
Jones v. European and General Express Co Ltd (1920) 4 Ll L Rep 127 2.45, 2.114, 2.183
Jones v. Williams (1841) 7 M & W 493 2.256
Jordan II, The. Jindal Iron and Steel; Co Ltd v. Islamic Solidarity Shipping Co [2004] UKHL 49;
[2005] 1 Lloyd's Rep 57(HL) 4.125, 4.126
Joseph Travers & Sons Ltd v. Cooper [1915] 1 KB 73 (CA) 2.187, 2.295
Junior Gallery Ltd v. NOL Ltd [1999] AMC 565 (SDNY 1998) 3.26, 4.126

K/S A/S Seateam & Co v. Iraqi National Oil Co (The Sevonia Team) [1983] 2 Lloyd's Rep 640	2.22
Kala Ltd v. International Freight Services (UK) Ltd, QBD, 7 June 1988 unreported, Lexis 2.55, 2.79,

2.112, 2.151, 2.154, 2.159, 2.161, 2.173, 2.253, 2.263, 2.267, 2.281

Kalfelis v. Bankhaus Schr¨oder, Munchmeyer, Hengst & Co (t/a Hema Beteiligungsgesellschaft
mbH) (Case C–189/87) [1988] ECR 5565 2.353, 2.354, 2.355, 2.356, 2.362
Kallang Shipping SA v. AXA Assurances Senegal (The Kallang) [2006] EWHC 2825; [2007] 1
Lloyd's Rep 160 2.333
Kallang Shipping SA v. AXA Assurances Senegal (The Kallang (No. 2)) [2008] EWHC 2761;
[2009] 1 Lloyd's Rep 124 2.333
Kamali v. City & Country Properties [2006] EWCA Civ 1879; [2007] 1 WLR 1219 (CA) 2.351
Kamil Export (Australia) Pty Ltd v. NPL (Australia) Pty Ltd (The Ocean Trader) (1993) 113 AR
677, [1996] 1 VR 538 (Sup Ct Vict) 3.36, 3.90, 4.124

Kanematsu (Hong Kong) Ltd v. Eurasia Express Line [1997] CLY No. 4494; [1998] CLY No.
472 (CA)	3.11
Kapetan Markos NL, The (No. 1). Hispanica de Petroles SA v. Vencedora Oceanica Navegacion
SA [1986] 1 Lloyd's Rep 211 (CA) 2.312
Kapitan Sakharov, The [2000] 2 Lloyd's Rep 255 (CA) 4.126, 4.127
Kaukomarkkinat O/Y v. Elbe Transport-Union GmbH (The Kelo) [1985] 2 Lloyd's Rep 85	2.40
Kaupthing Singer & Friedlander Ltd (In Administration), Re [2009] EWHC 740; [2009] 2
Lloyd's Rep 154 2.277
Keeton Sons & Co Ltd v. Carl Prior Ltd [1986] BTLC 302.10, 2.11, 2.28, 2.61, 2.290
Kefalonia Wind, The. Empresa Cubana Importadora de Alimentos v. Octavia Shipping Co SA
[1986] 1 Lloyd's Rep 273 2.311
Kells & Co Ltd v. Clyde Shipping Co Ltd (1920) 3 Ll L Rep 243 2.297
Kelo, The. Kaukomarkkinat O/Y v. Elbe Transport-Union GmbH [1985] 2 Lloyd's Rep 85	2.40
Kenya Railways v. Antares Co Pte Ltd (The Antares) (No. 1) [1987] 1 Lloyd's Rep 424 (CA) 2.307
Kherson, The [1992] 2 Lloyd's Rep 261 2.344

Khian Captain, The (No. 2). Freedom Maritime Corp v. International Bulk Carriers [1986] 1
Lloyd's Rep 429 2.275, 2.278
Kia Steel Co Ltd v. M/V Mares Maersk [1999] AMC 2068 4.103
Kilroy Thompson Ltd v. Perkins & Homer Ltd [1956] 2 Lloyd's Rep 49 2.292
Kim Meller Imports Pty Ltd v. Eurolevant SpA & Ors, NSW Sup Ct, 6 February 1989,
unreported	2.86
Kitts v. Atlantic Transport (1902) 7 Com Cas 227	3.9
Kleinwort Benson Ltd v. Glasgow City Council (No. 2) [1999] 1 AC 153 (HL) 2.357, 2.362
Kloeckner & Co .G v. Gatoil Overseas Inc [1990] 1 Lloyd's Rep 177 3.347
Knorr-Bremse Systems for Commercial Vehicles Ltd v. Haldex Brake Products GmbH [2008]
EWHC 156 (Pat); [2008] 2 All ER (Comm) 448 2.337
Kodak v. Racine Terminal (Montreal) Ltd [1999] AMC 2628 (Fed Ct Can)	3.16
Komori America Corp v. Howland Hook Container Terminal [1998] AMC 2894 (SDNY)	3.14
Konica Business Machines U.SA Inc v. Intransit Container Inc [1997] AMC 2685 (Comm Mass,
1996); affmd [1998] AMC 2705 (9th Cir.)	3.66
Konica Business Machines v. Vessel Sea-Land Consumer and Sea-Land Service Inc [1995] AMC
1065; affmd [1998] AMC 2705 (9th Cir.) 4.101, 4.103

Konkola Copper Mines plc v. Coromin Ltd [2005] EWHC 898 (Comm); [2005] 2 Lloyd's Rep
555 (QBD); [2006] EWCA Civ 5; [2006] 1 Lloyd's Rep 410 (CA) 2.337, 2.345
Konkola Copper Mines plc v. Coromin Ltd (No. 2) [2006] EWHC 1093 (Comm); [2006] 2
Lloyd's Rep 446 2.331, 2.337
Korea Wonis-Sun, The. Freight Systems Ltd v. Korea Shipping Corp [1990] HKLY 151 (LMLN
No 290) 2.78, 3.13, 3.23
Kosta Melas, The. S.L. Sethia Liners v. Naviagro Maritime Corp [1981] 1 Lloyd's Rep 18 2.275
Koufos v. C. Czarnikow Ltd (The Heron II) [1969] 1 AC 350; [1967] 2 Lloyd's Rep 457 (HL) 2.299
Kribi, The (No. 1) OT Africa Line Ltd v. Hijazy (No. 1) [2001] 1 Lloyd's Rep 76 2.333, 2.339
Kronhofer v. Maier (Case C–168/02) [2005] 1 Lloyd's Rep 284 2.363
Kruger & Co Ltd v. Moel Tryvan Ship Co Ltd [1907] AC 272 (HL) 2.237
Kukje Hwajae Insurance Co Ltd v. M/V Hyundai Liberty [2002] AMC 1598 (9th Cir.)	3.21
Kuliachar Sweater Industries Ltd v. Frans Maas (UK) Ltd, QBD, 4 April 2000, unreported,
Lexis 2.279
Kum v. Wah Tat Bank Ltd [1971] AC 439; [1971] 1 Lloyd's Rep 439 (PC Mal)	2.83

Kurz v. Stella Musical Veranstaltungs GmbH [1992] 1 All ER 630 2.344
Kuwait Oil Co (KSC) v. Idemitsu Tankers KK (The Hida Maru) [1981] 2 Lloyd's Rep 510
(CA) 2.331

La Pintada, The (No. 1). President of India v. La Pintada Compania Navigacion SA (No. 1)
[1985] AC 104; [1984] 2 Lloyd's Rep 9 (HL) 2.279
Laceys (Wholesale) Footwear Ltd v. Bowler International Freight Ltd [1997] 2 Lloyd's Rep 369
(CA)2.10, 2.11, 2.17, 2.181
Lafarge Plasterboard Ltd v. Fritz Peters & Co KG [2000] 2 Lloyd's Rep 689 2.338
Lafi Office & International Business S.L. v. Meriden Animal Health Ltd [2000] 2 Lloyd's Rep
51 2.347
Lambert (Iris Frances) v. Lewis (Donald Richard) [1982] AC 225; [1981] 2 Lloyd's Rep 17
(HL) 2.228
Lamport & Holt Lines v. Coubro & Scrutton (M. & I.) Ltd (The Raphael) [1982] 2 Lloyd's Rep

42 (CA) 2.242
Landauer & Co v. Smits & Co (1921) 6 Ll L Rep 577 2.53, 2.7, 2.80, 2.298
Landcatch Ltd v. Marine Harvest Ltd 1985 SLT 478 (2 Div)	2.28
Langley, Beldon & Gaunt Ltd v. Morley [1965] 1 Lloyd's Rep 2972.80, 2.112, 2.153, 2.155, 2.159
Lapad, The. Atlanska Plovidba v. Consignaciones Asturianas SA [2004] EWHC 1273 (Comm);
[2004] 2 Lloyd's Rep 109 2.16, 2.331
Laroche v. Spirit of Adventure (UK) Ltd [2009] EWCA Civ 12; [2009] QB 778 (CA) 2.311
Lavington Bros. v. Cooper & Co, World Carriers, Mayor's Ct, 16 October 1922 2.109
Leaf v. Canadian Shipping (1878) 1 WN 220 2.149
Learoyd Bros & Co and Huddersfield Fine Worsteds v. Pope & Sons (Dock Carriers) [1966] 2
Lloyd's Rep 142 2.105
Leather's Best Inc v. S.S. Mormaclynx, 313 F.Supp 1373 (SDNY 1970); [1970] 1 Lloyd's Rep
527; affmd, 451 F.2d 800 (2d Cir. 1971); [1971] AMC 2383 4.135, 4.147
Leather's Best Intl. v. Lloyd Sergipe [1991] AMC 1929 (SDNY 1991)4.103, 4.113, 4.119
Leathertex Divisione Sintetici SpA v. Bodetex BVBA (Case C–420/97) [1999] ECR I–6747 2.358
Lee Cooper Ltd v. C.H. Jeakins & Sons Ltd [1967] 2 QB 1; [1964] 1 Lloyd's Rep 3002.57, 2.69, 2.75,

	2.264
Lehmann Timber, The. Metall Market OOO v.Vitorio Shipping Co Ltd [2012] EWHC 844
(Comm); [2012] 2 Lloyd's Rep 73 2.161
L'Estrange v. F. Graucob Ltd [1934] 2 KB 394	2.10
Levi Strauss & Co v. Sea-Land Service Inc [2003] AMC 1447 (SDNY) 3.21, 4.120
Levi Strauss & Co v. Tropical Shipping & Construction Ltd [2003] AMC 283 (SD Fla 2002)	3.76
Levison v. Patent Steam Carpet Cleaning Co Ltd [1978] QB 69 (CA) 2.297
Lexmar Corp and Steamship Mutual Underwriting Association (Bermuda) Ltd v Nordisk
Skibsrederforening and Northern Tankers (Cyprus) Ltd [1997] 1 Lloyd's Rep 717 2.347
Lickbarrow v. Mason (1794) 5 Term Rep 683 2.82, 2.90, 3.9
Lime Intl. v. Alpha N.A. Line [1979] AMC 2693 (SDNY 1979) 4.101
Limnos, The. Serena Navigation Ltd v. Dera Commercial Establishment [2008] EWHC 1036
(Comm); [2008] 2 Lloyd's Rep 1662.292, 3.61, 3.106, 3.132
Lindenhall, The [1945] P 8; (1945) 78 Ll L Rep 215 (CA) 2.240
Lisboa, The. Mike Trading & Transport Ltd v. R. Pagnan & Fratelli [1980] 2 Lloyd's Rep 546
(CA) 2.333, 2.334
Lister v. Lancashire and Yorkshire Railway Co [1903] 1 KB 878 2.139, 2.231

Lister v. Romford Ice and Cold Storage Co Ltd [1957] AC 555; [1956] 2 Lloyd's Rep 505
(HL) 2.248
London-Calais Shipping Co Ltd v. J. & B. Harding Ltd (1924) 18 Ll L Rep 272 2.257
London Chatham and Dover Railway Co v. South Eastern Railway Co [1893] AC 429 (HL) 2.279
London and Lancashire Fire Insurance Co Ltd v. Bolands Ltd [1924] AC 836; (1924) 19 Ll L
Rep 1 (HL UK-Irl) 2.283
London and North Eastern Railway Co v. Furness Shipbuilding Co (1934) 150 LT 382 2.240
London and North Western Railway Co v. Hudson & Sons Ltd [1920] AC 324 (HL) 2.228
Long v. District Messenger & Theatre Ticket Co (1916) 32 TLR 596 2.203, 2.208
Losinjska Plovidba v. Transco Overseas Ltd (The Orjula) [1995] 2 Lloyd's Rep 395 2.219, 2.224,
	2.235
Lotus Cars Ltd v. Southampton Cargo Handling plc (The Rigoletto) [2000] 2 Lloyd's Rep 532
(CA) 2.146, 3.13
Louis Dreyfus v. Paterson S.S. [1930] AMC 1555	3.7
Louis Dreyfus Commodities Ltd v. Bolster Shipping Co Ltd (The Giorgis Carras) [2010] 1732
(Comm); [2011] 1 Lloyd's Rep 455 2.333
Lubbe v. Cape Plc (No. 2) [2000] 2 Lloyd's Rep 383 (HL) 2.344
Lucy, The. Atlantic Lines & Navigation Co Inc v. Hallam Ltd [1983] 1 Lloyd's Rep 188 2.127

(SDNY 1990) 3.17 Lufty Ltd v. Canadian Pacific Railway Co (The Alex) [1974] 1 Lloyd's Rep 106 (Fed Ct Can)2.18, 3.27, 3.29, 3.31, 4.50, 4.117 Luigi Riva Di Fernando v. Simon Smits Co Ltd (1920) 2 Ll L Rep 279; affmd (1920) 4 Ll L Rep 264 (CA) 2.71, 2.91, 2.298 Lukoil-Kalingradmorneft plc v. Tata Ltd and Global Marine Transportation (No. 2) [1999] 2 Lloyd's Rep 129 (CA) 2.67, 2.149 Lund (J.O.) Ltd v. Anglo Overseas Transport Co Ltd [1955] 1 Lloyd's Rep 142 2.158, 2.201, 2.262 Lynch Bros. v. Edwards & Fase (1921) 6 Ll L Rep 371 2.53 Lyons-Magnus v. American Hawaiian (The Exeter) 41 F.Supp. 575; [1941] AMC 1550 (SDNY 1941) 3.38 M. Golodetz & Co Inc v. Czarnikow-Rionda Co Inc (The Galatia) [1979] 2 Lloyd's Rep 450 4.113 M.B. Pyramid Sound NV v. Briese Schiffahrts GmbH & Co K.G. M.S. ''Sina'' (The Ines) [1995] 2 Lloyd's Rep 144 3.11, 3.31 M.C. Machinery Systems Inc v. Maher Terminals Inc [2001] AMC 927 (NJ Sup Ct 2000) 3.20 MC Pearl, The; Mahavir Minerals Ltd v. Cho Yang Shipping Co Ltd [1997] 1 Lloyd's Rep 566 2.311 MISC v. VISA Australia [2003] V.S.C.A. 64, 30 May 2003 4.93 MRG (Japan) Ltd v. Engelhard Metals Japan Ltd [2004] 1 Lloyd's Rep 731 2.351 MRI Trading AG v. Erdenet Mining Corp LLC [2012] EWHC 1988 (Comm) 2.123 MSC Mediterranean Shipping Co SA v. Polish Ocean Lines (The Tychy) (No. 1) [1999] 2 Lloyd's Rep 11 (CA) 1.17, 4.89 MSC Napoli, The. Metvale Ltd v. Monsanto International SARL [2008] EWHC 3002 (Admlty); [2009] 1 Lloyd's Rep 246 4.89 McCarren & Co v. Humber International Transport and Truckline Ferries (Poole) (The Vechscroon) [1982] 1 Lloyd's Rep 301 4.92 McCrone v. Boots Farm Sales Ltd 1981 SLT 103 (O.H.) 2.27 McKinnon v. Acadian Lines Ltd (1978) 81 DLR (3d) 480 2.116, 2.169 McNealy v. Pennine Insurance Co Ltd [1978] 2 Lloyd's Rep 18 (CA) 2.185, 2.186 Mackender v. Feldia AG [1967] 2 QB 590; [1966] 2 Lloyd's Rep 449 (CA) 2.331 Macrae & Dick v. Philip 1982 SLT (Sh Ct) 5 2.203 Madow v. S.S. Liberty Exporter [1978] AMC 425 (2d Cir. 1978) 3.26, 3.28, 3.33 Maersk Air Ltd v. Expeditors International (UK) Ltd [2003] 1 Lloyd's Rep 391 1.20, 2.57, 2.271 Maersk Line Ltd v. United States of America [2008] AMC 278 (4th Cir.) 4.141 Maersk Olie & Gas A/S v. Firma M De Haan (Case C–39/02) [2005] 1 Lloyd's Rep 210 2.365 Maersk-Sealand v. Ali Hussein Akar [2003] EWHC 797 (Comm) 2.311 Maersk-Sealand v. Eurocargo Express, LLC [2004] AMC 1098 4.96 2.331 Maheno, The. EMI (New Zealand) Ltd v. Wm Holyman & Sons Pty Ltd and Another [1977] 1 Lloyd's Rep 1; [1976] 2 NZLR 5677 (Sup Ct NZ)2.53, 2.57, 2.58, 2.59, 2.80 Mahkutai, The [1996] AC 650; [1996] 2 Lloyd's Rep 1 (PC HK) 2.146, 2.342, 4.13 Mainschiffahrts Genossenschaft eG (MSG) v. Les Gravieres Rh´enanes Sarl (Case C–106/95) [1997] 3 WLR 1792.338, 2.339, 2.358 Maira, The [1988] 2 Lloyd's Rep 126 (CA); rvsd [1990] 1 AC 637; [1990] 2 Lloyd's Rep 225 (HL) 2.104 Mana, The. Andromeda Marine SA v. O W Bunker & Trading A/S [2006] EWHC 777 (Comm); [2006] 2 Lloyd's Rep 319 2.338 Mannesman Demag Corp v. M/V Concert Express [2000] AMC 2935 (5th Cir.) 3.20, 3.71, 3.75 Mantovani v. Carapelli SpA [1980] 1 Lloyd's Rep 375 (CA) 2.334 Maple Leaf Macro Volatility Master Fund v. Rouvroy [2009] EWHC 257 (Comm); [2009] 1 Lloyd's Rep 4752.337, 2.353, 2.363 Marbig Rexel Pty v. A.B.C. Container Line NV (The TNT Express) [1992] 2 Lloyd's Rep 636 (Sup Ct NSW) 2.231, 4.46, 4.116, 4.117, 4.130 Marbrook Freight v. KMI (London) [1979] 2 Lloyd's Rep 341 (CA) 2.112, 3.30 Marcatania, The HK (Ct of 1st inst, 2 December 2011) 4.89 Marcelino Gonzales y Compania S en C v. James Nourse Ltd [1936] 1 KB 565; (1935) 53 Ll L Rep 151 3.35
Mahavir Minerals Ltd v. Cho Yang Shipping Co Ltd (The MC Pearl) [1997] 1 Lloyd's Rep 5662.311,

























































2.145	Margolis v. Newson Bros Ltd (t/a General Shipping & Forwarding Co) (1941) 71 Ll L Rep 472.109,

Marielle Bolten, The. Whitsea Shipping and Trading Corp v. El Paso Rio Clara Ltda [2009] EWHC 2552 (Comm); [2010] 1 Lloyd's Rep 6482.247, 2.248, 2.342, 3.16, 3.84
Marifortuna Naviera SA v. Government of Ceylon [1970] 1 Lloyd's Rep 247 2.303
Marinari v. Lloyds Bank plc (Case C–364/93) [1996] 2 WLR 159; [1995] ECR I–2719 2.363
Marine Office of American Corp v. N.Y.K. Line [1987] AMC 652 (ND Ill 1985)	3.33
Marinor Associates Inc v. M/V Panama, 2011 WL 710616 (SD Tex) 4.101 Mariola Marine Corp v. Lloyd's Register of Shipping (The Morning Watch) [1990] 1 Lloyd's Rep
547 2.195
Marlborough Hill, The v. Cowan & Sons [1921] 1 AC 92	2.90
Marley Co v. Cast North America (1983) Inc (The Cast Husky) (1995) 405 LMLN 3	3.7
Marston Excelsior Ltd v. Arbuckle Smith & Co Ltd [1971] 2 Lloyd's Rep 306 (CA)2.69, 2.70, 2.74,
2.112, 2.114, 2.284
Mathew v. T.M. Sutton Ltd [1994] 1 WLR 1455 2.279 Mason v. Morrow's Moving & Storage Ltd [1978] 4 WWR 534 2.117
Masri v. Consolidated Contractors Group SAL (Holding Company) [2005] EWCA Civ 1436;
[2006] 1 Lloyd's Rep 391 (CA) 2.353
Masri v. Consolidated Contractors International Co [2008] EWCA Civ 624; [2008] 2 Lloyd's
Rep 301 (CA) 2.345
Masri v. Consolidated Contractors International Co [2008] EWCA Civ 876; [2009] 1 Lloyd's
Rep 42 (CA) 2.345
Mata K, The. Agrosin Pty Ltd v. Highway Shipping Co Ltd [1998] 2 Lloyd's Rep 6144.113, 4.115 Matsushita Electric Corp of America v. S.S. Aegis Spirit, 414 F.Supp 894 (WD Wash 1976);
[1977] 1 Lloyd's Rep 973.28, 4.94, 4.120, 4.135, 4.145
Maurice Desagnes, The [1977] 1 Lloyd's Rep 290 (Fed Ct Can)	2.81
Mayfair Photographic Supplies (London) Ltd v. Baxter Hoare & Co Ltd and Stembridge [1972]
1 Lloyd's Rep 4102.116, 2.138, 2.139
Mayhew Foods v. Overseas Containers Ltd [1984] 1 Lloyd's Rep 3173.15, 3.35, 3.36, 3.58, 3.87
Mazda Motors of America Inc v. M/V Cougar Ace [2009] AMC 1220 (9th Cir.) Mazur Media Ltd v. Mazur Media GmbH [2004] EWHC 1566 (Ch); [2005] 1 Lloyd's Rep 412.345,	3.19
2.356, 2.363
Meddich & Meddich v. Cullen & Harvey (1983) 36 SASR 5422.102, 2.128, 2.132
Mediterranean Freight Services Ltd v. B.P. Oil International Ltd (The Fiona) [1994] 2 Lloyd's
Rep 506 (CA) 2.242
Mediterranean Marine v. Clarke [1980] AMC 1732	3.23
Mediterranean Shipping Company SA Geneva v. Royale Gulf Shipping Co Inc [2002] AMC 2562 (SD Tex (Houston Div) 2001)	3.21
Medway Packaging Ltd v. Meurer Maschinen GmbH & Co KG [1990] 2 Lloyd's Rep 112
(CA) 2.358
Mendelssohn v. Normand [1970] 1 QB 177 (CA) 2.296
Mersey Docks and Harbour Board v. Coggins & Griffith (Liverpool) Ltd [1947] AC 1; (1946) 79
Ll L Rep 569 (HL) 2.105 Messier Dowty Ltd v. Sabena SA (No. 2) [2000] 1 WLR 2040; [2000] 1 Lloyd's Rep 428 (CA) 2.331
Metaalhandel J.A. Magnus BV v. Ardfields Transport Ltd [1988] 1 Lloyd's Rep 197 2.59, 2.96, 2.105,
2.116, 2.122, 2.172, 2.288
Metal Distributors (UK) Ltd v. ZCCM Investment Holdings plc [2005] EWHC 156 (Comm);
[2005] 2 Lloyd's Rep 37 2.273
Metall Market OOO v. Vitorio Shipping Co Ltd (The Lehmann Timber) [2012] EWHC 844
(Comm); [2012] 2 Lloyd's Rep 73 2.161 Metro Leather Corporation v. M/V Savannah [1994] AMC 2178 (SDNY 1992) 4.102
Metvale Ltd v. Monsanto International SARL (The MSC Napoli) [2008] EWHC 3002 (Admlty);
[2009] 1 Lloyd's Rep 246	4.89
Micada Compania Naviera SA v. Texim [1968] 2 Lloyd's Rep 57 2.225, 2.237
Middle East Tankers and Freighter Bunker Services SA v. Abu Dhabi Container Lines P.J.S.C.
[2002] EWHC 957 (Comm); [2002] 2 Lloyd's Rep 643 2.339
Middle Eastern Oil LLC v. National Bank of Abu Dhabi [2008] EWHC 2895 (Comm); [2009] 1 Lloyd's Rep 251 2.331
Midgulf International Ltd v. Groupe Chimique Tunisien [2010] EWCA Civ 66; [2010] 2 Lloyd's
Rep 543 (CA) 2.348
Midland Rubber Co Ltd v. Robert Park & Co (1922) 11 Ll L Rep 260	2.86
Miguel de Larrinaga Steamship Co Ltd v. D.L. Flack & Son (1925) 21 Ll L Rep 284 (CA) 2.282

Mike Trading and Transport Ltd v. R. Pagnan & Fratelli (The Lisboa) [1980] 2 Lloyd's Rep 546
(CA) 2.333, 2.334
Mildred v. Maspons (1882–83) 8 App Cas 874 (HL) 2.148
Miles International Corp v. Federal Commerce & Navigation Co Ltd (The Federal Schelde)
[1978] 1 Lloyd's Rep 285 (Sup Ct Queb) 4.118
Millwall, The [1905] P 155 (CA) 2.256
Milor Srl v. British Airways plc [1996] QB 702 (CA) 2.367
Ministry of Food v. Lamport & Holt Line Ltd [1952] 2 Lloyd's Rep 371 2.224, 2.235
Minster Investments Ltd v. Hyundai Precision & Industry Co Ltd [1988] 2 Lloyd's Rep 621 2.363
Mires v. Solebay (1677) 2 Mod 242; 86 ER 1050 2.159
Mitchell v. Lancashire and Yorkshire Railway (1875) LR 10 QB 2562.100, 2.169, 2.170
Mitchell Cotts & Co v. Steel Bros & Co Ltd [1916] 2 KB 610 2.219
Mitsubishi Corp v. Eastwind Transport Ltd [2004] EWHC 2924 (Comm); [2005] 1 Lloyd's Rep 383 2.295
Mitsui & Co v. American Export Lines (The Red Jacket) [1981] AMC 331; 636 F. 2d. 807 (2d Cir. 1981) 2.233, 4.135
Mitsui & Co Ltd v. Novorossiysk Shipping Co (The Gudermes) [1991] 1 Lloyd's Rep 456	2.40
Mitsui Marine Fire Insurance & Co Ltd v. Hanjin Shipping Co Ltd [2004] AMC 5772.87, 3.20, 3.22
Mitsui Sumitomo Insurance Co Ltd v. Evergreen Marine Corp [2010] AMC 2775 (2d Cir.)	3.20
Monarch Airlines Ltd v. London Luton Airport Ltd [1998] 1 Lloyd's Rep 403 2.28, 2.284, 2.290
Monica Textile Corporation v. S.S. Tana (2d Cir. 1991) [1991] AMC 2378; [1992] AMC 609, LMLN 323 4.139, 4.145
Mooney Ltd v. Farrell Lines, 616 F.2d 619 (2d Cir. 1980), [1980] AMC 505 3.27, 3.33, 4.128
Mora Shipping Inc v. Axa Corporate Solutions Assurance SA [2005] EWCA Civ 1069; [2005] 2

Lloyd's Rep 769 (CA) 2.358
Morgan Stanley v. China Haisheng Juice Holdings [2009] EWHC 2409 (Comm); [2010] 1
Lloyd's Rep 265 2.333
Mormacoak, The, 451 F. 2d. 24 (2d Cir. 1971) 4.144
Morning Watch, The. Mariola Marine Corp v. Lloyd's Register of Shipping [1990] 1 Lloyd's Rep
547 2.195

Morris v. C.W. Martin & Sons Ltd [1966] 1 QB 716; [1965] 2 Lloyd's Rep 63 (CA) 2.23, 2.100,
2.133, 2.341, 3.12, 3.61, 4.13
Morris Graphics v. Trans Freight Lines [1990] AMC 2764 4.144
Morrow Crane v. Affiliated F.M. Ins. [1990] AMC 601 (D.Ore 1987)	3.33
Morten v. Hilton Gibbes & Smith [1937] 2 KB 176 (Note) (HL) 2.126
Morviken, The; Owners of Cargo on Board the Morviken v. Owners of the Hollandia (The
Hollandia and the Morviken) [1983] 1 AC 565; [1983] 1 Lloyd's Rep 1 (HL) 2.302, 2.335
Moto Vespa SA v. M.A.T. (Britannia Express) and Mateu & Mateu SA and Vincente Belloch
Galvez [1979] 1 Lloyd's Rep 175	2.57
Mr Deo Antoine Homawoo v. GMF Assurance SA, Ms Adeline Verbeke, Mr Stephane Pecquer [2010] EWHC 1941 (QB); 2010 WL 2888056 2.324
Mulliner v. Florence (1877–78) 3 QBD 484 (CA) 2.162
Mutual Life & Citizens Assurance Co Ltd v. Evatt [1971] AC 793; [1970] 2 Lloyd's Rep 441 (PC
Aus) 2.193
Myrick v. Michigan Central Ry, 107 U.S. 102	3.7
N. & J. Vlassopulos Ltd v. Ney Shipping Ltd (The Santa Carina) [1977] 1 Lloyd's Rep 478
(CA) 2.261
N.S. Tractors v. M.V. Tarros Gage [1986] AMC 2050 (Fed Ct) 4.134 Nabb Brothers Ltd v. Lloyds International (Guernsey) Ltd [2005] EWHC 405 (Ch); [2005] IL
Pr 37 2.351 Nadezhda Krupskaya, The. Brown Boveri (Australia) Pty v. Baltic Shipping Co [1989] 1 Lloyd's
Rep 518 (CA NSW) 2.303, 4.132
Nanfri, The, The Benfri, The Lorfri. Federal Commerce & Navigation Co Ltd v. Molena Alpha
Inc [1978] QB 927; [1978] 2 Lloyd's Rep 132 (CA); affmd in part [1979] AC 757; [1979] 1
Lloyd's Rep 201 (HL)2.273, 2.274, 2.275
National Shipping Co of Saudi Arabia v. Diversified Freight Logistics Inc [2004] AMC 188	2.87
Naviera Mogor SA v. Societe Metallurgique de Normandie (The Nogar Marin) [1988] 1 Lloyd's Rep 412 (CA) 2.261

Nederlandsch-Amerikaansche Stoomvaart Maatschappij, NV v. Royal Mail Lines Ltd (The
Nieuw Amsterdam) [1958] 1 Lloyd's Rep 412 2.237, 2.238
Neill & Co Ltd v. The Shaw Savill and Albion Co (1890) 8 NZLR 331 (SCNZ)	3.26
Nelson Lines (Liverpool) Ltd v. James Nelson & Sons Ltd [1908] AC 16 (HL)	4.92
Nelson Pine Industries Ltd v. Seatrans New Zealand Ltd (The Pembroke) [1995] 2 Lloyd's Rep 290 (HC NZ) 4.105
Neptune The (1867) 16 LT 36 4.103
Neptune Orient Lines Ltd v. J.V.C. (UK) Ltd (The Chevalier Roze) [1983] 2 Lloyd's Rep 4382.58,
2.145, 2.248, 3.14, 4.96
Neuenberger Schweitz v. Aldebaran [1990] AMC 1886 (SDNY) 4.103
New Hart Builders Ltd v. Brindley [1975] Ch 342 2.147
New Holland Australia Pty Ltd v. TTA Australia Pty Ltd (The Resolution Bay) (1995) 397 LMLN 4 (SC NSW)	3.52
New Horizon, The; Tramp Shipping Corp v. Greenwich Marine Inc [1975] 1 WLR 1042; [1975] 2 Lloyd's Rep 314 (CA) 2.282
New Vanguard, The and The Pacifica. Aectra Refining and Manufacturing Inc v. Exmar NV
[1995] 1 Lloyd's Rep 191; [1995] 1 All ER 641 (CA) 2.273, 2.274
New York Marine & General Ins. Co v. S/S Ming Prosperity [1996] AMC 1161 (SDNY) 4.120
New York Star, The. Port Jackson Stevedoring Pty Ltd v. Salmond & Spraggon (Australia) Pty
Ltd [1981] 1 WLR 138; [1980] 2 Lloyd's Rep 317 (PC Aus)2.60, 2.146, 3.13, 3.14
New Zealand Express Co Ltd v. Minahan [1916] NZLR 816 2.105
New Zealand Netherlands Society ''Oranje'' Inc v. Kuys [1973] 1 WLR 1126 (PC, NZ) New Zealand Shipping Co Ltd v. A.M. Satterthwaite & Co Ltd (The Eurymedon) [1975] AC	2.50
154; [1974] 1 Lloyd's Rep 534 (PC NZ) 2.146, 3.61, 4.13
Newsat Holdings Ltd v. Zani [2006] EWCA Civ 342; [2006] 1 Lloyd's Rep 707 (CA) 2.351
Nicholson v. Revill (1836) 4 A. & E. 675	2.42
Nieuw Amsterdam, The. Nederlandsch-Amerikaansche Stoomvaart Maatschappij, NV v. Royal
Mail Lines Ltd [1958] 1 Lloyd's Rep 412 2.237, 2.238
Nikolay Malakhov Shipping Co Ltd v. Seas Sapfor Ltd (1998) 44 NSWLR 371 (CA NSW) 2.311
Nikolay Malakhov, The. Seas Sapfor Ltd v. Far Eastern Shipping (1995) 416 LMLN 2 (Sup Ct
NSW) 2.314
Nile Dutch Africa Line B.V. v. Delta Lloyd Schadeverzekering (The NDS Provider), C06/082HR, 1.2.2008 4.126
Nile Rhapsody, The; Hamed el Chiaty & Co (t/a Travco Nile Cruise Lines) v. Thomas Cook
Group Ltd [1994] 1 Lloyd's Rep 382 (CA) 2.344
Nippon Yusen Kaisha v. International Import and Export Co (The Elbe Maru) [1978] 1 Lloyd's
Rep 2062.145, 2.248, 2.249, 2.255
Nipponkoa Insurance Co Ltd v. Wallenius Wilhelmsen Lines [2003] AMC 1907 (SDNY 2003)	3.15
Nissho Iwai Australia Ltd v. Malaysian International Shipping Corporation, Berhad (The Bunga
Teratai) (1989) 167 CLR 219 (HC Aust)	3.61
Noble v. R.H. Group Ltd and Another [1993] PIQR P235 (CA), 5 February 1993 2.30, 2.257 Noble Resources Ltd v. Cavalier Shipping Corp (The Atlas) [1996] 1 Lloyd's Rep 642 4.113
Nogar Marin, The. Naviera Magor SA v. Societe Metallurgique de Normandie [1988] 1 Lloyd's
Rep 412 (CA) 2.261
Nordglimt, The [1988] QB 183; [1987] 2 Lloyd's Rep 470 2.311, 2.312
Norfolk Southern Railway Co v. James N Kirby Pty Ltd, 543 US 14; [2004] AMC 2705	3.19
Novus Aviation Ltd v. Onur Air Tasimacilik AS [2009] EWCA Civ 122; [2009] 1 Lloyd's Rep 576 (CA) 2.351
Nurnberger AllgemeineVersichersrungs AG v. Portbridge Transport International BV (Case
C–148/03) [2005] 1 Lloyd's Rep 592 2.364
OGH, 28.2.2001 (2003) BTIF 10	4.29
OLG Dusseldorf, 4 July 1996 (1998) 23 ETL 438 4.59, 4.79
OT Africa Line Ltd v. Hijazy (The Kribi) (No. 1) [2001] 1 Lloyd's Rep 76; 2001 WL 9498192.333,
2.334, 2.340
OT Africa Line Ltd v. Magic Sportswear Corp [2005] EWCA Civ 710; [2005] 2 Lloyd's Rep 170
(CA) 2.331
OT Africa Line Ltd v. Magic Sportswear Corp 2006 FCA 284; [2005] 2 Lloyd's Rep 85 2.331
O'Brien v. MGN Ltd [2001] EWCA Civ 1279; [2002] CLC 33 (CA)	2.10
O'Connell Machinery Co Inc v. M.V. Americana, 797 F.2d. 1130 (2d Cir. 1986) 4.102
O'Connor v. B.D.B. Kirby & Co [1972] 1 QB 90; [1971] 1 Lloyd's Rep 454 (CA) 2.225

O'Hanlan v. Great Western Railway (1865) 6 B & S 484 2.298
O'Sullivan v. Williams [1992] 3 All ER 385 (CA) 2.224
Obelix, The. Axel Johnson Petroleum AB v. M.G. Mineral Group AG [1992] 2 All ER 163
(CA) 2.273, 2.276
Obestain Inc v. National Mineral Development Corp Ltd (The Sanix Ace) [1987] 1 Lloyd's Rep
465 2.298
Ocarina Marine Ltd v. Marcard Stein & Co [1994] 2 Lloyd's Rep 524 2.16, 2.331, 2.338
Ocean Chemical Transport Inc v. Exnor Craggs Ltd [2000] 1 Lloyd's Rep 446 (CA) 2.10, 2.17, 2.309
OceanConnect UK Ltd v. Angara Maritime Ltd (The Fesco Angara) [2010] EWCA Civ 1050;
[2011] 1 Lloyd's Rep 399 (CA) 2.333
Ocean Trader, The. Kamil Export (Australia) Pty Ltd v. NPL Australia Pty Ltd (1993) 113 A.LR
677, [1996] 1 VR 538 (Sup Ct Vict) 3.36, 3.90
Oceanic Trader, The. Comalco Aluminium Ltd v. Mogul Freight Services Pty Ltd (1993) 113
ALR 677 2.84, 4.124
Official Assignee of Madras v. Mercantile Bank of India Ltd [1935] AC 53 (PC Ind) 2.83
Okehampton, The [1913] P 173 (CA) 2.90
Omark Industries v. Associated Container Transportation [1977] AMC 230 (D Ore 1976) 4.149
Onego Shipping & Chartering BV v. JSC Arcadia Shipping (The Socol 3) [2010] EWHC 777
(Comm); [2010] 2 Lloyd's Rep 221 2.242
Onisilos, The. Salamis Shipping (Panama) SA v. Edm van Meerbeeck & Co SA [1971] 2 QB 550; [1971] 2 Lloyd's Rep 29 (CA) 2.287
Orient Overseas Container Lines (UK) Ltd v. Sea Land Service Inc [2001] AMC 1005 (SDNY
2000) 4.142, 4.146

Orion Insurance Co v. M/V Humacao [1994] AMC 1922 (SDNY 1994) 3.21, 4.134, 4.143
Orjula, The. Losinjska Plovidba v. Transco Overseas Ltd [1995] 2 Lloyd's Rep 395 2.219, 2.224,
2.235
Osman v. J. Ralph Moss Ltd [1970] 1 Lloyd's Rep 313 (CA) 2.186
Outboard Marine International v. S.S. American Lancer [1976] AMC 1839 (SDNY 1976)3.35,
4.118
Overbrooke Estates Ltd v. Glencombe Properties Ltd [1974] 1 WLR 1335 2.14, 2.191
Overseas Medical Supplies Ltd v. Orient Transport Services Ltd [1999] 2 Lloyd's Rep 273 (CA)2.28,
2.178, 2.185, 2.294, 2.301
Overseas Union Insurance Ltd v. New Hampshire Insurance Co (Case C–351/89) [1992] 1
Lloyd's Rep 204 2.350
Owners of the Bowditch v. Owners of the Po (The Po) [1991] 2 Lloyd's Rep 206 (CA) 2.344
Owners of Cargo on Board the Morviken v. Owners of the Hollandia (The Hollandia and the
Morviken) [1983] 1 AC 565; [1983] 1 Lloyd's Rep 1 (HL) 2.318
Owners of Cargo Lately Laden on Board the David Agmashenebeli v. Owners of the David
Agmashenebeli (The David Agmashenebeli )[2002] EWHC 104 (Admlty); [2003] 1 Lloyd's
Rep 92 4.116

Owners of Cargo Lately Laden on Board the Eleftheria v. Owners of the Eleftheria (The
Eleftheria) [1970] P 94; [1969] 1 Lloyd's Rep 237 2.331
Owners of Cargo Lately Laden on Board the Rewia v. Caribbean Liners (Caribtainer) Ltd (The
Rewia) [1991] 1 Lloyd's Rep 69; rvsd [1991] 2 Lloyd's Rep 325 (CA) 2.339
Owners of Cargo Lately Laden on Board the River Gurara v. Nigerian National Shipping Line
Ltd (The River Gurara) [1996] 2 Lloyd's Rep 53; affmd [1998] QB 610; [1997] 4 All ER 498;
[1998] 1 Lloyd's Rep 225 (CA) 4.113, 4.134, 4.146, 4.147, 4.149, 4.13
Owners of Cargo Lately Laden on Board the Tatry v. Owners of the Tatry (The Tatry) (Case
C–406/92) [1994] ECR I–5439; [1995] 1 Lloyd's Rep 302 2.365
Owners of the Carlton v. Port of London Authority (The Carlton) [1931] P 186; (1931) 40 Ll L
Rep 101 2.240, 2.252
Owners of the Las Mercedes v. Owners of the Abidin Daver (The Abidin Daver) [1984] AC 398;
[1984] 1 Lloyd's Rep 339 (HL) 2.331
Owusu v. Jackson [2002] EWCA Civ 877; 2002 WL 1039653 2.337, 2.345

P & O Nedlloyd BV v. Arab Metals Co (The UB Tiger) [2006] EWCA Civ 1300; [2007] 2
Lloyd's Rep 148 (CA) 2.216, 2.314, 3.14
P & O Nedlloyd BV v. Arab Metals Co (No. 2) [2006] EWCA Civ 1717; [2007] 2 Lloyd's Rep
231; [2007] 1 WLR 2288 (CA)2.174, 2.110, 2.216 P.S.A. Transport Ltd v. Newton, Landsdowne & Co Ltd [1956] 1 Lloyd's Rep 12 2.258

P.S. Chellaram & Co Ltd v. China Ocean Shipping Co (The Zhi Jiang Kou) [1989] 1 Lloyd's Rep
413 (Sup Ct NSW); rvsd [1991] 1 Lloyd's Rep 493 (CA NSW)2.248, 2.249, 3.36, 4.137
P.T. Indonesia v. Orient [2002] AMC 2209 (SD Fla (Miami Div)) 3.7
P.T. Indonesia Epsom Indemnity v. Orient Overseas Container Line [2002] AMC 2769 (SD Fla
(Miami Div)) 3.75
P.T. Keraton Selaras v. M/V Cartagena de Indias [1997] AMC 2218 (ED Penn) 4.143
PT Pan Indonesia Bank Ltd TBK v. Marconi Communications International Ltd [205] EWCA
Civ 422; [2007] 2 Lloyd's Rep 72 (CA) 2.323
Pacific Associates Inc v. Baxter [1990] 1 QB 993 (CA) 2.196
Pacific Tall Ships Co v. Kuehne and Nagel Inc [2000] AMC 866, 2250 (ND Ill, Eastern Div)2.58,
2.113, 2.196
Packing, The. Tokio Fire and Marine Insurance Co Ltd v. Hyundai Merchant Marine Co Ltd
[1989] AMC 2672 (ND Ill 1989), LMLN 263 3.14, 3.17, 3.18
Pannell v. U.S. Lines, 263 F.2d 497 (2d. Cir. 1959), [1959] AMC 935 4.145
Paquet (M.) & Co v. Dart Containerline [1973] AMC 926 (NY Civ Ct 1973) 4.116
Parker v. Lewis (1873) LR 8 Ch App 1035 2.256
Parker v. South Eastern Railway Co (1877) 46 LJKB 768 2.10
Parker Hannifin Corp v. Ceres Marine Terminals [1996] AMC 1573 (D Md) 3.13
Parnass Intl. v. Sea-Land Service, 595 F.Supp 153; [1985] AMC 485 (SDNY 1984) 3.47
Parsons Corp v. C.V. Scheepvaartonderneming Happy Ranger (The Happy Ranger) [2001] 2
Lloyd's Rep 357 (CA)3.37, 3.56, 3.70, 4.104
Partenreederei M.S. Tilly Russ v. Haven & Vervoerbedrijf Nova (Case C–71/83) [1985] QB
9312.338, 2.339, 2.343
Patec v. Translink, Sing HC, 3 December 20022.300, 2.301, 2.309, 3.38
Patel v. Keeler & Co [1923] AD 506 2.108
Paul Smith Ltd v. H & S International Holding Inc [1991] 2 Lloyd's Rep 127 2.16
Payabi v. Armstel Shipping Corp (The Jay Bola) [1992] 2 Lloyd's Rep 48 2.311, 2.312
Peek v. North Staffordshire Railway Co (1863) 10 HL Cas 473 2.301
Peereboom (G.) v. World Transport Agency Ltd (1921) 6 Ll L Rep 170 2.111
Pembroke, The. Nelson Pine Industries Ltd v. Seatrans New Zealand Ltd [1995] 2 Lloyd's Rep
290 (HC NZ) 4.105
Penney (J.C.) Co Inc v. American Express Co Inc and American Export Lines Inc [1952] AMC
901 (SDNY) 2.87
Perishables Transport Co v. Spyropoulos (N.) (London) Ltd [1964] 2 Lloyd's Rep 379 2.261
Perugina Chocolates and Confections Inc v. S.S. Ro Ro Genova [1987] AMC 801 (SDNY
1986) 4.116
Perusahaan Pertambangan Minyak Dan v. Chainat Navee M/V, 136 F.Supp 2d 586 (FD Fla
2001) 4.138
Peters Fabrics Inc v. S.S. Hermes [1984] AMC 1685 (SDNY 1984) 4.119, 4.128
Petroleo Brasiliero SA v. Mellitus Shipping Inc (The Baltic Flame) [2001] EWCA Civ 418;
[2001] 2 Lloyd's Rep 203 (CA) 2.351
Petromec Inc v. Petroleo Brasileiro SA Petrobras [2005] EWCA Civ 891; [2006] 1 Lloyd's Rep
161 (CA) 2.123
Philips-Van Heusen Corp v. Mitsui O.S.K. Lines Ltd [2003] AMC 2471 (MD Pa 2002) 3.20
Phillip Alexander Securities & Futures Ltd v. Bamberger [1997] IL Pr 73 (CA) 2.329
Phillips Products v. Hyland [1987] 1 WLR 659; [1987] 2 All ER 620 (CA)2.192, 2.203, 2.23, 2.301
Phoenix v. Eagle Tide [2001] AMC 1019 3.75
Phoenix Assurance Co of New York a/s/o Tommy Hilfiger USA Inc v. M/V Eagle Tide [2001]
AMC 1019 (SDNY 1999) 3.26, 3.28, 3.31
Photo Production Ltd v. Securicor Transport Ltd [1980] AC 827; [1980] 1 Lloyd's Rep 545
(HL) 2.292, 2.296
Pickfords Ltd v. Perma Products Ltd (1947) 80 Ll L Rep 513 2.240
Pioneer Container, The [1994] 2 AC 324; [1994] 1 Lloyd's Rep 593; [1994] 2 All ER 250 (PC
HK)1.17, 2.90, 2.140, 2.146, 2.157, 2.341, 3.12, 3.21, 3.33, 3.61
Pioneer Land, The [1957] AMC 50 (SDNY 1956) 3.9, 3.26, 3.35
Pionier, The. Continental Fertilizer Co Ltd v. Pionier Shipping CV [1995] 1 Lloyd's Rep 223 2.312
Pisani (C.A.) & Co Ltd v. Brown Jenkinson & Co Ltd (1939) 64 Ll L Rep 340 2.45, 2.58
Plaimar v. Waters Trading Co Ltd (1945) 72 CLR 304 (Aust HC) 3.10, 3.37
Planeta, The; Harpers Trading (Singapore) Pte Ltd v. R.F.L. International (1994, unreported,
NSW) 4.126
Plastique Tags Inc v. Asia Transline Inc [1996] AMC 2304 (11th Cir.) 4.113

Platzhoff v. Lebean (1865) 4 F & F 545	2.80
Po, The; Owners of the Bowditch v. Owners of the Po [1991] 2 Lloyd's Rep 206 (CA) 2.344
Podar Trading Co, Bombay v. Francois Tagher, Barcelona [1949] 2 KB 277; (1948–49) 82 Ll L
Rep 705 2.279
Polskie Linie Oceaniczne v. Hooker Chemical Corp, 499 F.Supp 94 (SDNY 1980) 4.127
Polskie Ratownictwo Okretowe v. Rallo Vito & C SNC [2009] EWHC 2249 (Comm) 2.338
Polyduke, The. Bahamas Oil Refining Co v. Kristiansands Tank Rederie [1978] 1 Lloyd's Rep
211 2.240
Port Jackson Stevedoring Pty Ltd v. Salmond & Spraggon (Australia) Pty Ltd (The New York
Star) [1981] 1 WLR 138; [1980] 2 Lloyd's Rep 317 (PC Aus)2.60, 2.146, 3.13, 3.14

Port Swettenham Authority v. T.W. Wu & Co Sdn Bhd [1979] AC 580; [1979] 1 Lloyd's Rep 11
(PC Mal) 2.100, 2.122
Poseidon Freight Forwarding Co Ltd v. Davies Turner Southern Ltd [1996] 2 Lloyd's Rep 388
(CA)	2.11
Powell Duffryn plc v Wolfgang Petereit (Case C–214/89) [1992] ECR I–1745; [1992] IL Pr
300 2.338
Prebena Wire Bending Machinery Ltd v. Transit Worldwide Corp [1999] AMC 2623 (SDNY)	3.17
President of India v. La Pintada Compania Navigacion SA (The La Pintada) (No. 1) [1985] AC
104; [1984] 2 Lloyd's Rep 9 (HL) 2.279
Presvale Trading Co Ltd v. Sutch & Searle [1967] 1 Lloyd's Rep 131 2.116
Prima US Inc v. Panalpina Inc [2000] AMC 2897 (2d Cir.)	2.87

Princes Buitoni v. Hapag-Lloyd A.G. [1991] 2 Lloyd's Rep 383 (CA) 1.30, 3.69
Prins Willem II, The. Robert Simpson (Montreal) Ltd v. Canadian Overseas Shipping Ltd [1973]
2 Lloyd's Rep 124 (PC)	3.14
Pringle of Scotland Ltd v. Continental Express Ltd [1962] 2 Lloyd's Rep 802.12, 2.18, 2.115, 2.292
Producers Meats Ltd v. Shaw Savill & Albion Co Ltd (The Arawa) [1977] 2 Lloyd's Rep 416; rvsd
[1980] 2 Lloyd's Rep 135 (CA) 2.286
Project Hope v. M/V IBN Sina [2000] AMC 1287 (SDNY)	3.23
Promech Sorting Systems BV v. Bronco Rentals & Leasing Ltd (1995) 123 DLR (4th) 111	3.33
Prussman (M.) v. M/V Nathaniel [1988] AMC 297 (SDNY 1987) 2.87, 3.28
Punch v. Savoy's Jewellers Ltd (1986) 26 DLR (4th) 546 2.117
Purcell v. Khayat, The Times, 23 November 1987 (CA) 2.331

Pye Ltd v. B.G. Transport Service Ltd [1966] 2 Lloyd's Rep 300 2.116
Pyrene Co Ltd v. Scindia Steam Navigation Co Ltd [1954] 2 QB 402; [1954] 1 Lloyd's Rep 3212.48,
3.36, 3.87, 4.125
Pyropower Corp v. M/V Alps Maru [1993] AMC 1562 (ED Pa 1993) 4.138

Quantum Corp Ltd v. Plane Trucking Ltd [2001] 2 Lloyd's Rep 133; rvsd [2002] EWCA Civ
350; [2002] 2 Lloyd's Rep 25; [2002] 1 WLR 2678 (CA) 1.21, 3.72, 3.80, 3.83, 3.84, 3.85, 3.86,
	3.90, 3.100
Quebec Liquor Corp v. Owners and Charterers of the Vessel Dart Europe [1979] AMC 2382;
(1980) 15 ETL 145 (Fed Ct Can, 1979) 3.7, 3.31, 4.137

R. v. Kay (1857) Dears & B. 231, 169 E.R. 988	2.21
R. v. Sharp (Ronald Edward) [1957] 1 QB 552 (Crim CA) 2.283
R. Badenhop Corp v. N/V Koninklijke [1960] AMC 2114	3.26

R.A. Lister & Co v. E.G. Thomson (Shipping) Ltd and PT Djakarta Lloyd (The Benarty) (No.
2) [1985] QB 325; [1984] 2 Lloyd's Rep 244 (HL) 2.318
R.H. & D. International Ltd v. S.A.S. Animal Air Services Ltd [1984] 1 WLR 573 2.275
R.P.S. Prodotti Siderurgici Srl v. Owners of the Sea Maas (The Sea Maas) [1999] 2 Lloyd's Rep
2812.359, 2.360, 2.361
RTS Flexible Systems Ltd v. Molkerei Alois Muller GmbH & Co KG [2010] UKSC 14; [2010]
1 WLR 753 (SC) 2.123
Rafaela S, The [2002] 2 Lloyd's Rep 403 (QBD); [2003] EWCA Civ 556; [2004] QB 702; [2003]
2 Lloyd's Rep 113; [2003] All ER (Comm) 219 (CA); [2005] UKHL 11;[2005] 1 Lloyd's Rep
347; [2005] 2 AC 423 (HL) 2.82, 2.84, 2.88, 3.6, 3.37, 3.38, 3.56, 3.57
Rafisani v. Coastal Cargo Co, 20'12 WL 1032908 (ED La)	3.13
¨ Raiffeisen Zentralbank Osterreich Aktiengesellschaft v. National Bank of Greece SA [1999] 1
Lloyd's Rep 408 2.354
¨
Raiffeisen Zentralbank Osterreich AG v. Royal Bank of Scotland plc [2010] EWHC 1392 (Comm); [2011] 1 Lloyd's Rep 123 2.201

Rainbow v. Howkins [1904] 1 KB 215	2.34
Ranson v. Platt [1911] 2 KB 291 (CA) 2.111
Raphael v. Pickford (1843) 5 Man & G 551 2.291
Raphael, The. Lamport & Holt Lines v. Coubro & Scrutton (M. & I.) Ltd [1982] 2 Lloyd's Rep 42 (CA) 2.243
Raymond Burke Motors Ltd v. Mersey Docks and Harbour Co [1986] 1 Lloyd's Rep 155	3.13
Reardon Smith Line Ltd v. Ministry of Agriculture, Fisheries and Food [1960] 1 QB 439; [1959]
2 Lloyd's Rep 229 2.287
Recumar Inc v. Dana Arabia [1985] AMC 2284 (SDNY 1985) 4.116
Red Jacket, The. Houlden & Co v. S.S. Red Jacket [1977] AMC 1382 (SDNY 1977); affmd 582
F. 2d. 1271 (2d Cir.), cert den 439 U.S. 1128; [1979] AMC 2018; [1978] 1 Lloyd's Rep 300
(US Ct)4.103, 4.127, 4.153
Reefer Badger, The; Anglo Irish Beef Processors International v. Federated Stevedores Geelong
[1997] 1 Lloyd's Rep 207 (CA Sup Ct Va) 2.312
Regazzoni v. K.C. Sethia (1944) Ltd [1958] AC 301; [1957] 2 Lloyd's Rep 289 (HL) 2.317
Renton (G.H.) & Co Ltd v. Palmyra Trading Corp of Panama (The Caspiana) [1955] 2 Lloyd's
Rep 301; rvsd [1956] 1 QB 462; [1955] 2 Lloyd's Rep 722 (CA); affmd [1957] AC 149; [1956]
2 Lloyd's Rep 379 (HL) 2.32, 2.138, 2.282, 3.36, 3.88, 3.124
Resolution Bay, The. New Holland Australia Pty Ltd v. TTA Australia Pty Ltd (1995) 397
LMLN 4 (SC NSW)	3.52
Resources Recovery Inc v. China Ocean Shipping (Group) Co [1999] AMC 780 (SDNY)	3.21
R´eunion Europ´eenne SA v. Spliethoffs Bevrachtingskantoor BV (Case C–51/97) [1999] IL Pr
205; [1999] 34 ETL 1872.353, 2.357, 2.362, 3.263
Rewia, The; Owners of Cargo Lately Laden on Board the Rewia v. Caribbean Liners (Car
ibtainer) Ltd [1991] 1 Lloyd's Rep 69; rvsd [1991] 2 Lloyd's Rep 325 (CA) 2.339
Rhone Poulenc Rorer Ltd v. Trans Global Group Ltd (CA, 18 February 1998, unreported; QBD,
18 June 1997, unreported)1.26, 2.1, 2.11, 2.17, 2.294
Richardson v. Buckinghamshire County Council; Sydney Green (Civil Engineering) Ltd; Roads
Reconstruction (Contracting) Ltd [1971] 1 Lloyd's Rep 533 (CA) 2.255
Rice v. Baxendale (1861) 7 H & N 96 2.298
Richardson v. North Eastern Ry Co (1872) LR 7 CP 75 2.228
Richmond Metal Co Ltd v. J. Coales & Son Ltd [1970] 1 Lloyd's Rep 423 2.283
Rick Cobby Haulage Pty Ltd v. Simsmetal Pty Ltd (1986) 43 SASR 533 2.116
Rigoletto, The. Lotus Cars Ltd v. Southampton Cargo Handling plc [2000] 2 Lloyd's Rep 532
(CA) 2.146, 3.13
Riley v. Horne (1828) 5 Bing 217 2.203
Rit-Chem Co v. Valiant [1990] AMC 2935 (SDNY) 4.116
River Gurara, The Owners of Cargo Lately Laden on Board the River Gurara v. Nigerian
National Shipping Line Ltd [1996] 2 Lloyd's Rep 53; affmd [1998] QB 610; [1997] 4 All ER
498; [1998] 1 Lloyd's Rep 225 (CA) 4.113, 4.134, 4.146, 4.147, 4.149, 4.153
Robert C. Herd & Co v. Krawill Machinery Corp 259 US 297 (1959)	3.17
Robert Simpson (Montreal) Ltd v. Canadian Overseas Shipping Ltd (The Prins Willem III)
[1973] 2 Lloyd's Rep 124 (PC)	3.14
Robinson v. Mollett (1875) LR 7 HL 802 2.167
Rockwell Graphic Systems Ltd v. Freemantle Terminals (1991) 106 FLR 294 (Sup Ct WA) R¨ohlig (UK) Ltd v. Rock Unique Ltd [2011] EWCA Civ 18; [2011] 2 All ER (Comm) 11612.277,	3.14
	2.309
Romano v. West India Fruit & SS Co, 151 F.2d. 727 (5th Cir. 1945) 4.102
Rosa S, The [1989] QB 419; [1988] 2 Lloyd's Rep 574 2.303, 3.65, 4.132
Rosenbruch v. American Export Istbrandtsen Lines, 543 F.2d 967, [1976] AMC 487 (2d Cir.
1976) 4.101
Ross v. Caunters [1980] Ch 297 2.196
Rothmans of Pall Mall (Overseas) v. Saudi Arabian Airlines Corp [1981] QB 368 (CA) 2.365
Royal & Sun Alliance Insurance plc v. MK Digital FZE (Cyprus) Ltd [2005] 2 Lloyd's Rep 679;
revsd [2005] EWCA Civ 1069; [2006] 2 Lloyd's Rep 110 (CA)2.359, 2.365, 2.367
Royal & Sun Alliance Insurance plc v. Ocean World Lines [2010] AMC 2784 (2d Cir.)	3.20
Royal Bank of Canada v. Co¨operatieve Centrale Raiffeisen-Boerenleenbank BA [2004] EWCA
Civ 7; [2004] 1 Lloyd's Rep 471 (CA) 2.333
Royal Embassy v. Ioannis Martinos [1986] AMC 301 (ED NC 1984) 4.101
Royal Exchange Shipping Co Ltd v. Dixon Ltd (1886) 12 App Cas 11 4.100, 4.104
Royal Insurance Co v. Westwood Transpacific Service [1991] AMC 1028 (WD Wash 1990)	3.17

Royal Insurance Co of America v. M/V MSC Dymphna [2004] AMC 785 (SDNY) 4.149
Royal Insurance Co of America v. OOCL Ltd [2008] AMC 337 (6th Cir.) 4.148
Royal Typewriter Co v. M.V. Kulmerland, 483 F. 2d. 645 (SDNY 1972); [1973] AMC 1784 4.135
Ruapehu, The (1925) 21 Ll L Rep 310 2.118
Russell Stover Candies Inc v. Double VV Inc (1997) WL 809205 (D Kan)	3.18
S. & W. Berisford plc and NGI International Precious Metals Inc v. New Hampshire Insurance
Co Ltd [1990] 2 QB 631; [1990] 1 Lloyd's Rep 4542.331, 2.344, 2.346
S.L. Sethia Liners v. Naviagro Maritime Corp (The Kostas Melas) [1981] 1 Lloyd's Rep 18 2.275
SNC S.L.B. v. M/V Newark Bay [1996] AMC 1764 (SDNY); rvsd [1997] AMC 1952 (2nd Cir.)3.35,
	3.47
SPM Corp v. M/V Ming Moon [1992] AMC 2409 (3d Cir. 1992) 4.147
SSQ Europe SA v. Johann & Backes OHG [2002] 1 Lloyd's Rep 465 2.338
St. Albans City and District Council v. International Computers Ltd [1996] 4 All ER 481	2.27
St. John's N.F. Shipping Corp v. Comp. General Commercial Do Rio De Janiero, 263 US 119
(1923); [1923] AMC 1131 4.101
St. Johns Shipping Corp v. Joseph Rank Ltd [1957] 1 QB 267; [1956] 2 Lloyd's Rep 413	4.7
St. Paul Fire & Marine Insurance Co v. Sea Land Service Inc (The Vermillion Bay) [1990] AMC
2239 (SDNY 1990), LMLN 277 4.139, 4.145
St. Paul Travelers Insurance Co Ltd v. Wallenius Wihelmsen Logistics A/S [2011] AMC 2701 (2d
Cir.) 4.143
St. Simeon Navigation Inc v. A. Courtier (1974) 44 DLR (3d.) 478 (Sup Ct of Can) 4.101
Sabah v. Harbel Tapper [2000] AMC 163 (5th Cir. 1999) 2.87, 3.12 Sabah Shipyard (Pakistan) Ltd v. Islamic Republic of Pakistan [2002] EWCA Civ 1643; [2003]
2 Lloyd's Rep 571 2.333
Sagona, The; A/S Hansen-Tangens Rederi III v. Total Transport Corp [1984] 1 Lloyd's Rep
194 2.261
Saint Line Ltd v. Richardsons Westgarth & Co Ltd [1940] 2 KB 99; (1940) 67 Ll L Rep 62 2.292
Saipem SpA v. Dredging VO2 BV (The Volvox Hollandia) (No. 1) [1988] 2 Lloyd's Rep 361
(CA) 2.331
Salamis Shipping (Panama) SA v. Edm van Meerbeeck & Co SA (The Onisilos) [1971] 2 QB 550;
[1971] 2 Lloyd's Rep 29 (CA) 2.287
Saldanha v. Fulton Navigation Inc (The Omega King) [2011] EWHC 1118 (Admlty); [2011] 2
Lloyd's Rep 206 2.351
¨ Salotti di Colzani Aimo e Gianmario Colzani v. RUWA Polstereimaschinen GmbH (Case
C–24/76) [1976] ECR 1831; [1977] 1 CMLR 345 2.338
Salsi v. Jetspeed Air Services [1977] 2 Lloyd's Rep 57 2.12, 2.53
Samengo-Turner v. J & H Marsh & McLennan (Services) Ltd [2007] EWCA Civ 723; [2007] IL
Pr 52 2.348
Sandeman Coprimar SA v. Transitos y Transportes Integrales SI [2003] EWCA Civ 113; [2003] 1 All ER (Comm) 504 (CA) 2.40, 2.325, 2.340
Sanix Ace, The. Obestain Inc v. National Mineral Development Corp Ltd [1987] 1 Lloyd's Rep
465 2.298
Santa Carina, The; N. & J. Vlassopulos Ltd v. Ney Shipping Ltd [1977] 1 Lloyd's Rep 478
(CA) 2.261
Sarginson Brothers v. Keith Moulton & Co Ltd (1942) 73 Ll L Rep 104 2.193
Saris v. Westminster Transports SA and Kestral Marine [1994] 1 Lloyd's Rep 115 2.313
Sarrio SA v. Kuwait Investment Authority [1997] 1 Lloyd's Rep 113 (CA); rvsd [1999] 1 AC 30;
[1998] 1 Lloyd's Rep 129 (HL) 2.344
Satya Kailash, The, and The Oceanic Amity. Seven Seas Transportation Ltd v. Pacifico Union
Marina Corp [1984] 1 Lloyd's Rep 588 (CA) 2.303
Scaife v. Tobin (1897) 3 B & A 523 2.250
Scan Service A/S v. D.F.D.S. A/S (1989) 24 ETL 345	3.86
Schenkers Ltd v. Betancor & Co Ltd (World's Carrier), Mayor's Ct, 15 April 1939 2.148, 2.152
Schenkers Ltd v. Overland Shoes Ltd [1998] 1 Lloyd's Rep 498 (CA) 2.12, 2.28, 2.277
Schramm, Incorporated v. Shipco Transport, Incorporated, In Personam [2004] AMC 961 (4th
Cir.) 3.15, 3.17, 3.87
Schuler (L.) A.G. v. Wickman Machine Tool Sales Ltd [1974] AC 235; [1973] 2 Lloyd's Rep 53 (HL) 2.220
Schuyler v. Cunard S.S. Co [1967] AMC 896 4.116
Scruttons Ltd v. Midland Silicones Ltd [1962] AC 446; [1961] 2 Lloyd's Rep 365 (HL)2.146, 3.16

Sea-Land Service Inc v. Lozen International LLC [2002] AMC 913	3.54
Sea Maas, The. R.P.S. Prodotti Siderurgici Srl v. Owners of the Sea Maas [1999] 2 Lloyd's Rep
2812.359, 2.360, 2.361
Seas Sapfor Ltd v. Far Eastern Shipping (The Nikolay Malakhov) (1995) 416 LMLN 2 (Sup Ct NSW) 2.314
Seaward Quest, The. Sunderland Marine Mutual Insurance Co Ltd v. Wiseman [2007] EWHC
1460 (Comm); [2007] 2 Lloyd's Rep 308 2.344, 2.363
Sebastian Holdings Inc v. Deutsche Bank AG [2010] EWCA Civ 998; 1 Lloyd's Rep 106 (CA) 2.331
Seeberg v. Russian Wood Agency Ltd (1934) 50 Ll L Rep 146 2.282
Selected Machinery Imports Pty Ltd v. A. Hartrodt Italiana SRL, Sup Ct Victoria, 23 June 1989,
unreported 2.91, 4.105
Securitas (NZ) Ltd v. Cadbury Schweppes Hudson Ltd [1988] 1 NZLR 340 (CA NZ)2.106, 2.116
Seguros ''Illimani'' SA v. M/V Popi P, 929 F.2d 89 (2nd Cir. 1991) 4.138, 4.139
Seismic Shipping Inc v. Total E&P UK plc (The Western Regent) [2005] EWHC 460 (Admlty);
[2005] 2 Lloyd's Rep 54 2.333
Seki Rolette, The. Grimaldi Compagnia di Navigazione SpA v. Sekihyo Lines Ltd [1998] 2
Lloyd's Rep 638 2.311
Selected Machinery Imports Pty Ltd v. A. Hartrodt Italiana SRL, 23 June 1989, Sup Ct Vict, unreported 2.91, 4.105
Sennar, The (No. 2). DSV Silo und Verwaltungsgesellschaft mbH v. Owners of the Sennar (No.
2) [1985] 1 WLR 490; [1985] 1 Lloyd's Rep 521 (HL) 2.331
Sentinel Enterprises v. Simo Matavulj [1991] AMC 177 4.138
Serena Navigation Ltd v. Dera Commercial Establishment (The Limnos) [2008] EWHC 1036
(Comm); [2008] 2 Lloyd's Rep 1662.292, 3.61, 3.106, 3.132
Servicios-Expoarma Cia v. Industrial Maritime Carriers Inc [1998] AMC 1453 (5th Cir.) 4.138
Seven Seas Transportation Ltd v. Pacifico Union Marina Corp (The Satya Kailash and The
Oceanic Amity) [1984] 1 Lloyd's Rep 588 (CA) 2.303
Sevonia Team, The. K/S A/S Seateam & Co v. Iraqi National Oil Co [1983] 2 Lloyd's Rep 640	2.22
Shaftesbury International Freight & Transport Ltd v. BKR Gesellschaft f¨ur Export und Import
mbH (CA, 29 October 1992, unreported)2.111, 2.221, 2.276, 2.277
Sharab v. Al Saud [2009] EWCA Civ 353; [2009] 2 Lloyd's Rep 160 (CA) 2.351
Shashoua v. Sharma [2009] EWHC 957 (Comm); [2009] 2 Lloyd's Rep 376 2.332, 2.348
Shaw v. Neal (1858) 6 HL Cas 581 2.159
Sheerwood v. The Lake Eyre [1970] Ex CR 672 4.104
Sheffield Corp v. Barclay [1905] AC 392 (HL) 2.261
Sheldon (G.W.) & Co (London) Ltd v. Alfred Young & Co (1921) 6 Ll L Rep 466 2.113
Shell Chemicals UK Ltd v. P&O Roadtanks Ltd [1993] 1 Lloyd's Rep 114; affmd [1995] 1

Lloyd's Rep 297 (CA)2.23, 2.30, 2.250, 2.257, 2.264, 2.265, 2.292, 4.10
Shell International Petroleum Co Ltd v. Coral Oil Co Ltd (No. 1) [1999] 1 Lloyd's Rep 72 2.333
Shell International Petroleum Co Ltd v. Coral Oil Co Ltd (No. 2) [1999] 2 Lloyd's Rep 606 2.333
Shevill v. Presse Alliance SA [1996] AC 959 (HL) 2.363
Shevill v. Presse Alliance SA (Case C–68/93) [1995] ECR I–415; [1995] 2 AC 18 (ECJ) 2.363
Shiells v. Blackburne (1789) 1 Hy Bl 159; 129 ER 94	2.99
Shipwith v. GW Ry (1888) 59 LT 520 2.285
Shonac Corp v. Maersk Inc [2001] AMC 1924 (SD Ohio (East Div))	2.87
Siboti v. BP France SA [2003] 2 Lloyd's Rep 364 2.338, 2.350
Sideridraulic Systems SpA v. BBC Chartering & Logistic GmbH & Co KG (The BBC Greenland) [2011] EWHC 3106 (Comm); [2012] 1 Lloyd's Rep 2302.315, 2.329, 4.107
Sidney Cooke Ltd v. Hapag Lloyd Aktiengesellschaft [1980] 2 NZWLR 588 3.18, 3.20
Siemens Ltd v. Schenker International (Australia) Pty Ltd	3.72
Silver v. Ocean Steamship Co Ltd [1930] 1 KB 416; (1929) 35 Ll L Rep 49 (CA)	4.25
Sims & Co v. Midland Railway Co [1913] 1 KB 103 2.163
Singer Co (UK) Ltd v. Tees and Hartlepool Port Authority [1988] 2 Lloyd's Rep 1642.23, 2.28, 2.69,
2.71, 2.72, 2.77, 2.133, 2.140, 2.300, 2.301, 3.21
Sinochem International Oil (London) Co Ltd v. Mobil Sales and Supply Corp (No. 2) [2000] 1
Lloyd's Rep 670 2.331
Skier Star, The. Verity Shipping SA v. NV Norexa [2008] 213 (Comm); [2008] 1 Lloyd's Rep
710 2.333
Skinner v. Upshaw (1702) 2 Ld Raym 752 2.148
Skipskredittforeningen v. Emperor Navigation [1998] 1 Lloyd's Rep 66 2.277
Skipwith v. G.W. Ry (1888) 59 LT 520 2.285

Slim v. G.N. Ry (1854) 14 CB 647 2.14, 2.191, 2.203
Smith v. Canadian Pacific Airlines Inc (1972) 452 F.2d 798 (2d Cir. 1971) 2.367
Smith v. Compton (1832) 3 B.& Ad 407 2.256
Smith v. Eric S. Bush [1990] 1 AC 831 (HL)2.195, 2.197, 2.201, 2.202
Smith v. South Wales Switchgear Co Ltd [1978] 1 WLR 165 (HL)2.240, 2.243, 2.295
Smith (H.C.) Ltd v. Great Western Railway Co Ltd [1922] 1 AC 178 (HL) 2.284, 2.297
Smith (H.C.) v. Midland Ry (1919) 88 LJKB 868 2.284, 2.297
Smith (Rufis L. Jr.) v. Spanish Line [1998] AMC 1791 (D SC) 4.127
Smythgreyhound v. M/V Eurygenes [1982] AMC 320 (2d Cir. 1981) 4.139
Snelling v. John G. Snelling Ltd [1973] QB 87 2.248
Soc. Jakob Handte & Co GmbH v. Societe Traitements Mecano-Chimiques des Surfaces (TMCS) (Case C–26/91) [1992] ECR I–3967 2.357
Societa Anonima Angelo Castelletti v. Transmaritime Ltd (H. Woodward & Sons (Watford) Ltd,
Third Parties) [1953] 2 Lloyd's Rep 440 2.148, 2.152, 2.153, 2.163, 2.262
Societe Group Josi Reinsurance Co SA v. Universal General Insurance Co (UGIC) (Case C–412/98) [2000] All ER (EC) 653 2.353
Societe Metallurgica Italiana v. Grace Line Inc [1957] AMC 1371 (NY Sup Ct 1957) 3.26
Societe Nationale Industrielle Aerospatiale (SNIA) v. Lee Kui Jak [1987] AC 871 (PC) 2.333
Socol 3, The. Onego Shipping & Chartering BV v. JSC Arcadia Shipping [2010] EWHC 777
(Comm); [2010] 2 Lloyd's Rep 221 2.242
Somes v. British Empire Shipping (1860) 8 HL Cas 338 2.161
Sompo Japan Insurance of America v. Union Pacific Railroad Co [2004] AMC 247 (SDNY
2003) 3.17, 3.19, 3.20, 3.75
Sompo Japan Insurance of America v. Union Pacific Railroad Co [2011] AMC 301 (2d Cir. 2010) 3.20
Sonia, The; Trafigura Beheer NV v. Golden Stavraetos Maritime Inc [2003] EWCA Civ 664;
[2003] 1 WLR 2340 (CA) 3.92
Sonicare International Ltd v. East Anglia Freight Terminal Ltd [1997] 2 Lloyd's Rep 48 1.18, 2.28,
2.34, 2.89, 2.264, 2.300, 3.14
Sony Chemicals Europe BV v. M/V Ingrita [1997] AMC 755 (D Md 1996) 3.14, 3.17, 3.70

Sony Computer Entertainment Inc v. Nippon Express U.SA (Illinois) Inc [2004] AMC 1126
(SDNY) 3.20, 3.70, 3.75
Sony Computer Entertainment Ltd v. RH Freight Services Ltd [2007] EWHC 302 (Comm);
[2007] 2 Lloyd's Rep 463 2.365
Sophia Supply Co v. Gatoil (U. A) Inc [1989] 1 Lloyd's Rep 588 (CA) 2.331
Sotrade Denizcilik Sanayi Ve Ticaret SA v. Amadou Lo (The Duden) [2008] EWHC 2762
(Comm); [2009] 1 Lloyd's Rep 145 2.333
Source Ltd v. T.U.V. Rheinland Holding AG [1997] 3 WLR 365; [1998] QB 54 (CA) 2.356
Southern Water Authority v. Carey [1985] 2 All ER 1077 2.146
Spaner Bros. v. Central Canadian Express Co (1918) 43 DLR 400 Can DC, Ed 2.292
Spectra International plc v. Hayesoak Ltd [1997] 1 Lloyd's Rep 153; revsd [1998] 1 Lloyd's Rep
162 (CA) 2.23, 2.103, 2.133, 2.140, 2.264, 4.15, 4.87
Spiliada Maritime Corp v. Consulex Ltd (The Spiliada) [1987] AC 460; [1987] 1 Lloyd's Rep 1
(HL) 2.331
Spinney's (1948) Ltd v. Royal Insurance Co Ltd [1980] 1 Lloyd's Rep 406 2.283
Springer v. Great Western Railway Co [1921] 1 KB 257; (1920) 4 Ll L Rep 211 (CA) 2.163
Stafford Allen & Sons v. Pacific Steam Navigation Co [1956] 1 Lloyd's Rep 104 3.37
Stag Line Ltd v. Foscolo Mango & Co Ltd [1932] AC 328; (1931) 41 Ll L Rep 165 (HL)2.137, 3.96
Stag Line Ltd v. Tyne Ship Repair Group Ltd (The Zinnia) [1984] 2 Lloyd's Rep 211 2.28, 2.292,
2.301
Standard Bank plc v. Agrinvest International Inc [2007] EWHC 2595 (Comm); [2008] 1 Lloyd's Rep 532 2.333
Standard Chartered Bank v. Pakistan National Shipping Corp (1995) 415 LMLN 1 2.331
Standard Commercial Tobacco Co v. The M/V Recife [1994] AMC 1208 (SDNY 1993) 4.105
Standard Electrica, SA v. Hamburg Supamerikanische Dampfschiff-fahrts-Gesellschaft, 375
F.2d. 943 (2d Cir. 1967) 4.135, 4.149
Standard Multiwall Bag Manufacturing Co v. Marine Terminals Corporation [1997] AMC 891
(D Ore 1996) 3.15, 3.17
Star Reefers Pool INC v. JFC Group Ltd [2011] EWHC 339 (Comm); [2011] 2 Lloyd's Rep 215 2.320

Starlight Shipping Co v. Allianz Marine & Aviation Versicherungs AG (The Alexandros T) [2011]
EWHC 3381 (Comm); [2012] 1 Lloyd's Rep 162 2.337
Starrag-Heckeret Inc v. Maersk Inc [2007] AMC 1217 (9th Cir. 2006 3.20
Starsin, The. Homburg Houtimport BV v. Agrosin Private Ltd [2003] UKHL 12; [2003] 2 WLR
711; [2004] 1 AC 715 (HL) 2.245, 2.247, 2.252, 3.20, 3.37, 3.84
Steamship Mutual Underwriting Association (Bermuda) Ltd v. Sulpicio Lines Inc [2008] EWHC
914 (Comm); [2008] 2 Lloyd's Rep 269 2.333
Stewart Gill Ltd v. Horatio Myer & Co Ltd [1992] QB 600 (CA) 2.31, 2.277, 2.292
Sterling Hydraulics Ltd v. Dichotomatik Ltd [2006] EWHC 2004 (QB); [2007] 1 Lloyd's Rep 82.10,
2.14
Stolt Tank v. Evergreen Marine [1991] AMC 1761 (SDNY 1990) 4.94
Stoomvaart Maatschappij (The Zeeland) v. Horlock (No. 2) (1929) 33 Ll L Rep 319 2.254
Strathallan, The. Ailsa Craig Fishing Co Ltd v. Malvern Fishing Co Ltd [1983] 1 WLR 964;
[1983] 1 Lloyd's Rep 183 (Note) (HL) 2.187, 2.295
Strathlorne Steamship Co Ltd v. Andrew Weir & Co (1934) 50 Ll L Rep 185 (CA) 2.261
Studebaker Distributors Ltd v. Charlton Steam Shipping Co Ltd [1938] 1 KB 459; (1937) 59 Ll
L Rep 23 4.134
Sun-Bar Materials International v. American President Lines [1993] AMC 2639 (ND Cal 17
May 1993) 3.18
Sun Happiness, The. Etablissement Biret et Cie SA v. Yukeiteru Kaiun K.K. & Nissui Shipping
Corp [1984] 1 Lloyd's Rep 381 2.80
Sunderland Marine Mutual Insurance Co Ltd v. Wiseman (The Seaward Quest) [2007] EWHC
1460 (Comm); [2007] 2 Lloyd's Rep 308 2.344, 2.363
Sunripe (Cape) (Pty) Ltd v. Mediterranean Shipping Co SA [2004] AMC 1 (SDNY 2003) 4.98
Suprema Court de Justica, Uruguay, 28 March 2001, [2002] 4 ULR 1234 4.113
Surzur Overseas Ltd v. Ocean Reliance Shipping Co Ltd [1997] CLY No. 906 2.277
Sutcliffe v. G.W. Ry [1910] 1 KB 478 (CA)2.122, 2.205, 2.288
Svenska Traktor AB v. Maritime Agencies (Southampton) Ltd [1953] 2 QB 295; [1953] 2 Lloyd's
Rep 124 2.32, 4.101, 4.107
Swan v. Salisbury Construction Co Ltd [1966] 1 WLR 204 (PC Ber) 2.118
Swiss Bank Corp v. Brink's-MAT Ltd [1986] 2 Lloyd's Rep 79 2.12, 259, 2.116, 2.133, 2.213, 2.284
Swiss Bank Corp v. Brink's-MAT Ltd (Interest) [1986] QB 853; [1986] 2 Lloyd's Rep 99 (Note)2.12,
2.59
Syska v. Vivendi Universal SA [2008] EWHC 2155 (Comm); [2008] 2 Lloyd's Rep 6362.316, 2.335
Sze Hai Tong Bank Ltd v. Rambler Cycle Co Ltd [1959] AC 576; [1959] 2 Lloyd's Rep 114 (PC Sing) 4.124

T Comedy (UK) Ltd v. Easy Managed Transport Ltd [2007] EWHC 611 (Comm); [2007] 2
Lloyd's Rep 3972.16, 2.149, 2.157, 2.164
TICC Ltd v. COSCO (UK) Ltd [2001] EWCA Civ 1862; [2002] CLC 346; 2001 WL 1476256
(CA)2.57, 2.93, 2.111, 4.96
TNT Express, The. Marbig Rexel Pty. v. A.B.C. Container Line NV [1992] 2 Lloyd's Rep 636
(Sup Ct NSW) 2.231, 4.46, 4.116, 4.117, 4.130
TNT Express Nederland BV v. AXA Versicherung AG (Case C–533/08) [2010] IL Pr 35 2.364
T.S. Havprins, The. Chevron International Oil Co Ltd v A/S Sea Team [1983] 2 Lloyd's Rep
356 2.331
Taisho Marine v. Sea-Land Endurance, 815 F.2d 1270 (9th Cir. 1987), [1987] AMC 1730 4.103
Taisho Marine and Fire Insurance Co v. Maersk Line Inc [1993] AMC 705 (ND Ill 1992) 3.14, 3.17,
3.18
Taisho Marine and Fire Insurance Co v. The vessel ''Gladiolus'' [1987] AMC (9th Cir. 1985)3.14,
3.17, 3.18
Tamrock USA Inc v. M.V. Maren Mrsk [1996] AMC 676 (SDNY) 3.18, 3.21
Tappenden (t/a English & American Autos) v. Artus [1964] 2 QB 185 (CA) 2.149
Tarago, The. Chapman Marine Pty v. Wilhelmsen Lines [1999] AMC 1221 (Fed Ct NSW)4.100,
4.101, 4.142
Tasman Discoverer, The [2001] 2 Lloyd's Rep 528 (CA NZ); affmd [2004] UKPC 22; [2004] 2
Lloyd's Rep 647 (PC) 4.132
Tasman Express Line Ltd v. J.I. Case (Australia) Pty Ltd (1992) 342 LMLN (CA NSW) 4.107
Tasman Orient Line CV v. New Zealand China Clays (The Tasman Pioneer) [2009] NZCA 135;
[2009] 2 Lloyd's Rep 308 (CA NZ); [2010] NZSC 37; [2010] 2 Lloyd's Rep 1 (SC NZ)3.61,
4.107

Tatem Steam Navigation Co Ltd v. Great Western Railway Co & South Wales Siemens Steel
Association (Third Parties) (1942) 73 Ll L Rep 89 2.256
Tatry, The. Owners of Cargo Lately Laden on Board the Tatry v. Owners of the Tatry (Case
C–406/92) [1994] ECR I–5439; [1995] 1 Lloyd's Rep 302 2.365
Taylor v. Lewis Ltd (1927) 28 Ll L Rep 329 (IH) 2.287
Taylor (E.W.) & Co (Forwarding) v. Bell [1968] 2 Lloyd's Rep 632.21, 2.116, 2.126, 2.270, 2.276,
2.281
Tekdata Interconnections Ltd v. Amphenol Ltd [2009] EWCA Civ 1209; [2010] 1 Lloyd's Rep
357 (CA) 2.14, 2.15
Tele2 International Card Co SA v. Post Office Ltd [2009] EWCA Civ 9; 2009 WL 6118 (CA) 2.282
Telfair Shipping Corp v. Inersea Carriers SA (The Caroline P) [1984] 2 Lloyd's Rep 466 2.238

Teno, The. Compania Sud Americano de Vapores v. Shipmair BV [1977] 2 Lloyd's Rep 289 2.275
Termagent, The (1914) 19 Com Cas 239 3.21
Tetroc Ltd v. Cross-Con (International) Ltd [1981] 1 Lloyd's Rep 192 2.55, 2.67, 2.69, 2.70, 2.71,
2.72, 2.73
Texaco Melbourne, The. Attorney General of Ghana v. Texaco Overseas Tankships Ltd [1993]
1 Lloyd's Rep 471 (CA); affmd [1994] 1 Lloyd's Rep 473 (HL) 2.298
Texas Instruments Ltd v. Nason (Europe) Ltd [1991] 1 Lloyd's Rep 146 1.21, 2.70, 2.72, 2.77
Thermo Engineers Ltd and Anhydro A/S v. Ferrymasters Ltd [1981] 1 Lloyd's Rep 200; [1981]
1 WLR 1420 3.90, 4.83
Thiess Bros (Queensland) Proprietary Ltd v. Australian Steamships Proprietary Ltd [1955] 1
Lloyd's Rep 459 (Sup Ct NSW) 2.137
Thiti Lert Watana Co Ltd v. Minagratex Corp [2001] AMC 80 (ND Cal 2000) 3.17, 3.18
Thomas National Transport (Melbourne) Pty Ltd v. May & Baker (Australia) Pty Ltd (1966) 115
CLR 353 2.116
Thomas Young v. Hobson and Partner (1949) 65 TLR 365 2.133
Thompson v. T. Lohan (Plant Hire) and Hurdiss (J.W.) [1987] 1 WLR 649 (CA) 2.191
Thornton v. Shoe Lane Parking [1971] 2 QB 163; [1971] 1 Lloyd's Rep 289 (CA) 2.10
Through Transport Mutual Assurance Association (Eurasia) Ltd v. New India Assurance Co Ltd
[2004] EWCA Civ 1598; [2005] 1 Lloyd's Rep 67 (CA)2.333, 2.348, 2.349, 2.352
Through Transport Mutual Assurance Association (Eurasia) Ltd v. New India Assurance Co Ltd

(No. 2) [2005] EWHC 455 (Comm); [2005] 2 Lloyd's Rep 3782.348, 2.349, 2.352
Thyssen Inc v. Calypso Shipping Corp SA [2000] 2 Lloyd's Rep 243 2.311, 2.312
Tichburne v. White (1719) 1 Strange 145 2.205
Tilia Gorthon, The [1985] 1 Lloyd's Rep 552 4.107
Toepfer International GmbH v. Societe Cargill France [1997] 2 Lloyd's Rep 98; affmd [1998] 1
Lloyd's Rep 379 (CA) 2.333
Tokio Marine and Fire Insurance Co Ltd v. Hyundai Merchant Marine Co Ltd (The Packing)
[1989] AMC 2672 (ND Ill 1989), LMLN 263 3.14, 3.17, 3.18
Tokio Marine and Fire Insurance Co Ltd v. Mitsui O.S.K. Lines Ltd [2003] AMC 2543 (CD
Cal) 3.17, 3.18
Tokio Marine and Fire Insurance Co Ltd v. Nippon Express USA (Illinois) Inc [2001] AMC
1239 (CD Ca (West Div) 2000) 4.140, 4.149
Tokio Marine Management Inc v. M/V Zim Tokyo [1995] AMC 2263 (SDNY) 3.23
Toll (FGCT) Pty Ltd v. Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 (HCA) 2.10
Tor Mercia, The, 1977, Sup Ct Sweden (1980) 15 ETL 23 4.127
Toshiba International Corp v. M/V Sea-Land Express [1994] AMC 995 (SDNY, 1994)3.7, 3.19
Total Transport Corp v. Arcadia Petroleum Ltd (The Eurus) [1996] 2 Lloyd's Rep 408; affmd
[1998] 1 Lloyd's Rep 351 (CA)2.237, 2.240, 2.261
Tracomin SA v. Sudan Oil Seeds (No. 1) [1983] 1 WLR 1026; [1983] 2 Lloyd's Rep 384 (CA) 2.329

Trade Indemnity plc v. Forsakringsaktiebolaget Njord [1995] 1 All ER 796 2.357
Trafigura Beheer BV v. Golden Stavraetos Maritime Inc (The Sonia) [2003] EWCA Civ 664;
[2003] 1 WLR 2340 (CA) 3.92
Trafigura Beheer BV v. Kookmin Bank Co [2006] EWHC 1450 (Comm); [2006] 2 Lloyd's Rep
455 2.325, 2.328
Trafigura Beheer BV v. Kookmin Bank Co (No. 2) [2006] EWHC 1921 (Comm); [2007] 1
Lloyd's Rep 699 2.333
Trafigura PTE Ltd v. Emirates General Petroleum Ltd [2009] EWHC 1613 (Comm); WL
1894655 2.351
Tramp Shipping Corp v. Greenwich Marine Inc (The New Horizon) [1975] 1 WLR 1042; [1975]
2 Lloyd's Rep 314 (CA) 2.282

Trane Co v. Hanjin Shipping Co Ltd (The Hanjin Marseilles) [2001] 2 Lloyd's Rep 735 (HK
HC) Transatlantic Marine Claims Agency Inc v. M/V IBN Zuhr [1994] AMC 2086 (SD Ga 1994)4.116,	3.70
Transatlantic Marine Claims Agency Inc v. M/V Mason Lykes [1993] AMC 2448 (SDNY	4.120
1993) 4.141
Transatlantic Marine Claims Agency Inc v. M/V OOCL Inspiration [1998] AMC 1327 (2d Cir.)3.7, 3.26, 3.31, 4.120
Transmotors Ltd v. Robertson, Buckley & Co [1970] 1 Lloyd's Rep 224	2.15
Transocean Machine Co v. Orange Line and the Prins Willem IV [1958] Ex CR 227	3.35
Transocean Liners Reederei GmbH v. Euxine Shipping Co Ltd (The Imvros) [1999] 1 Lloyd's Rep 848 2.295
Transoceanica Societa Italiana di Navigazione v. H.S. Shipton & Sons [1923] 1 KB 31; (1922) 10 Ll L Rep 153 2.225
Trasporti Castelletti Spedizioni Internazionali SpA v. Hugo Trumpy SpA (Case C–159/97)
(1999) 34 ETL 617; [1999] 7 Euro CL 14; [1999] ECR I–15972.338, 2.339, 2.343
Travelers Casualty and Surety Co of Europe Ltd v. Sun Life Assurance Co of Canada (UK) Ltd [2004] EWHC 1704 (Comm); [2004] IL Pr 50 2.331
Travellers Indemnity Co v. The Vessel ''Sam Houston'' and Waterman Steamship Corp [1994] AMC 2162 (9th Cir. 1994) 4.142
Travers (Joseph) & Sons Ltd v. Cooper [1915] 1 KB 73 (CA) 2.122, 4.23
Trendtex Trading Corp v. Credit Suisse [1980] QB 629 (CA) affmd [1982] AC 679 (HL) 2.331 Tri Mg Intra Asia Airlines v. Norse Air Charter Ltd [2009] SGHC 13; [2009] 1 Lloyd's Rep 258
(HCt Sing)	2.16
Triad Shipping Co v. Stellar Chartering and Brokerage Inc Ltd (The Island Archon) [1994] 2 Lloyd's Rep 227 (CA) 2.261
Trident Turboprop (Dublin) Ltd v. First Flight Couriers Ltd [2009] EWCA Civ 290; [2009] 1 Lloyd's Rep 702 (CA)	2.26
Trotter & Co v. Delta S.S. Lines [1985] AMC 2783 (ED Pa 1982) 4.138
Troy v. Eastern Company of Warehouses Insurance & Transport of Goods with Advances (1921) 8 Ll L Rep 17 (CA) 2.61, 2.86, 3.12, 3.13
Tubacex Inc v. M/V Rison [1995] AMC 1305 (5th Cir. 1995) 4.125
Tudor Marine Ltd v. Tradax Export SA (The Virgo) [1976] 2 Lloyd's Rep 135 (CA)	2.80
Turnbull v. Garden (1869) 38 LJ Ch 331 2.167
Turner v. Grovit [2001] UKHL 65; [2002] 1 WLR 107 (HL); (Case C–159/02) [2005] 1 AC 101 (ECJ) 2.348
Tychy (No. 1), The. M.S.C. Mediterranean Shipping Co SA v. Polish Ocean Lines [1999] 2 Lloyd's Rep 11 (CA) 1.17, 489
Tyly v. Morrice (1699) Carth. 485 2.205
UB Tiger, The. P & O Nedlloyd BV v. Arab Metals Co [2006] EWCA Civ 1300; [2007] 2 Lloyd's
Rep 148 (CA) 2.216, 2.314, 3.14
UBS AG v. HSH Nordbank [2009] EWCA Civ 585; [2009] 2 Lloyd's Rep 272 (HL) 2.15, 2.344,
US v. Farrell Lines [1982] AMC 1904 (D Md 1980)	2.345 3.35
Ulster Swift Ltd v. Taunton Meat Haulage Ltd [1977] 1 WLR 625; [1977] 1 Lloyd's Rep 346 (CA)	2.54
Ultimo Cabinet Corp v. Mason Lykes [1991] AMC 1343 (SDNY 1991)	3.23
Ultisol Transport Contractors Ltd v. Bouygues Offshore SA [1997] 2 Lloyd's Rep 533 2.344
Unicoopjapan and Marubeni-Iida Co v. Ion Shipping Co (The Ion) [1971] 1 Lloyd's Rep 541	2.32
Union Bank of Australia Ltd v. Rudder (1911) 13 CLR 152 (HC Aus) 2.188
Union Transport v. Continental Lines SA [1992] 1 WLR 15; [1992] 1 Lloyd's Rep 229 (HL) 2.358 United Fresh Meat Co Ltd v. Charterhouse Cold Storage Ltd [1974] 2 Lloyd's Rep 286 2.297
United Mills Agencies Ltd v. Harvey Bray & Co [1951] 2 Lloyd's Rep 631 2.181, 2.186
United States Steel Products Co v. Great Western Railway Co [1916] 1 AC 189 (HL) 2.156
Universal Leaf Tobacco Co Inc v. Netumar [1993] AMC 2439 (4th Cir. 1993) 4.139, 4.145 Universal Shipping & Forwarding Co Ltd v. Commercial & Industrial Co Ltd (The Anglo Russ)
(1919) 1 Ll L Rep 635 2.21, 2.281 Unterweser Reederei GmbH v. Zapata Offshore Co (The Chaparral) [1968] 2 Lloyd's Rep 158
(CA) 2.331

Vastframe Camera Ltd v. Birkart Globistics Ltd, High Ct of Hong Kong SAR (Stone J), 5
October 2005	2.47
Vechscroon, The. McCarren & Co v. Humber International Transport and Truckline Ferries
(Poole) [1982] 1 Lloyd's Rep 301	4.92
Vegas v. Compania Anonima Venezolana, 720 F.2d 629 (11th Cir. 1983); [1984] AMC 1600 4.141
Vermillion Bay, The. St. Paul Fire & Marine Insurance Co v. Sea Land Service Inc [1990] AMC
2239 (SDNY 1990), LMLN 277 4.139, 4.145
Verity Shipping SA v. NV Norexa (The Skier Star) [2008] 213 (Comm); [2008] 1 Lloyd's Rep
710 2.333
Vertex Data Science Ltd v. Powergen Retail Ltd [2006] EWHC 1340 (Comm); [2006] 2 Lloyd's
Rep 591 2.95, 2.96, 2.315
Victoria Fur Traders Ltd v. Roadline (UK) Ltd [1981] 1 Lloyd's Rep 5702.68, 2.116, 3.12, 4.87
Vikfrost, The. W. & R. Fletcher (New Zealand) v. Sigurd Haavik A/S [1980] 1 Lloyd's Rep 560
(CA) 2.331
Virgo, The. Tudor Marine Ltd v. Tradax Export SA [1976] 2 Lloyd's Rep 135 (CA)	2.80
Vision Air Flight Services Inc v. M/V National Pride [1999] AMC 1168 (9th Cir. 1998) 4.145

Vistar SA v. M/V Sea-Land Express, 774 F.2d (5th Cir. 1985)	3.7
Vistar SA v. M/V Sea-Land Express, 792 F.2d 469 (5th Cir. 1986)	3.54
Vita Food Products Inc v. Unus Shipping Co Ltd (In Liquidation) [1939] AC 277; (1939) 63 Ll
L Rep 21 (PC) 2.317
Volvox Hollandia, The (No. 1). Saipem SpA v. Dredging VO2 BV (No. 1) [1988] 2 Lloyd's Rep
361 (CA) 2.331
Von Traubenberg v. Davies, Turner & Co Ltd [1951] 2 Lloyd's Rep 462 (CA) 2.11, 2.12, 2.117,
2.133, 2.181, 2.182, 2.186, 2.213, 2.262
Voss v. APL Co Pte Ltd [2002] 2 Lloyd's Rep 707 (Sing CA)	3.56

W. & R. Fletcher (New Zealand) v. Sigurd Haavik A/S (The Vikfrost) [1980] 1 Lloyd's Rep 560
(CA) 2.331
WLR Traders (London) Ltd v. British & Northern Shipping Agency Ltd and I. Leftley [1955] 1
Lloyd's Rep 5542.105, 2.117, 2.122, 2.181
WPP Holdings Italy SRL v. Benatti [2006] EWHC 1641 (Comm); [2006] 1 Lloyd's Rep 610 2.347
WRM Group Ltd v. Wood [1998] CLC 189 (CA) 2.277
Wadsworth v. Lydall [1981] 1 WLR 598 (CA) 2.278
Walek & Co (International) Ltd v. Chapman & Ball [1980] 2 Lloyd's Rep 279 2.235
Walford v. Galindez (1897) 2 Com Cas 137 2.250
Walford v. Miles [1992] 2 AC 128 (HL) 2.123
Walker v. Jackson (1842) 10 M & W 161 2.105
Watermill Export Inc v. M.V. Ponce, 506 F.Supp 612 (SDNY 1981); [1981] AMC 320 4.144

Watkins (M. C.) v. M/V London Senator [2000] AMC 2740 (ED Virg) 3.13, 3.15, 3.1, 3.52
Watson v. First Choice Holidays & Flights Ltd [2001] EWCA Civ 972; [2001] 2 Lloyd's Rep 339
(CA) 2.353
Weintraub v. ETA Transportation, SDNY 28 August 2003	2.87
Weis (Charles) & Co Ltd v. Northern Traffic Ltd (1919) 1 Ll L Rep 241 2.71, 2.127, 2.136
Welex AG v. Rosa Maritime Ltd (The Epsilon Rosa) [2003] EWCA Civ 938; [2003] 2 Lloyd's
Rep 509 2.333
Werner Enterprises Inc v. Westwind Maritime International Inc 554 F.3d 1319 (11th Cir.
2009)	3.22
Wessely v. Rosenberg Loewe & Co Successors Ltd (1940) 67 Ll L Rep 16 2.108, 2.122
West Tankers Inc v. Allianz SpA (The Front Comor) [2012] EWHC 854 (Comm); [2012] 2
Lloyd's Rep 103 2.348
West Tankers Inc v. RAS Riunione Adriatica di Sircuta SpA (The Front Comor) [2007] UKHL
4; [2007] 1 Lloyd's Rep 391 (HL) 2.352
Western Credit Ltd v. Alberry [1964] 1 WLR 945 (CA) 2.253
Western Digital Corp v. British Airways plc [2000] 2 Lloyd's Rep 142 (CA)	2.44
Western Regent, The. Seismic Shipping Inc v. Total E&P UK plc [2005] EWHC 460 (Admlty);
[2005] 2 Lloyd's Rep 54 2.333
Westway Coffee Corp v. M.V. Netuno [1982] AMC 1640 (2d Cir. 1982) 4.119
Whaite v. Lancashire & Yorkshire Ry Co (1874) LR 9 Ex 67 4.134
White Cross Equipment Ltd v. Farrell, 22 March 1983, unreported, Lexis 2.300, 2.309
White Rose, The. A/B Helsingfors Steamship Co Ltd v. Rederiaktiebolaget Rex [1969] 1 WLR

1098; [1969] 2 Lloyd's Rep 52 2.255

Whitsea Shipping and Trading Corp v. El Paso Rio Clara Ltda (The Marielle Bolten) [2009] EWHC 2552 (Comm); [2010] 1 Lloyd's Rep 6482.247, 2.248, 2.342, 3.16 Wibau Maschinenfabrik Hartman SA v. Mackinnon Mackenzie & Co (The Chanda) [1989] 2 Lloyd's Rep 4942.296, 2.298, 2.307, 4.104 Wight v. British Railways Board [1983] CLY 424 2.300 Williams Brothers (Hall) v. Naamlooze Vennootschap W.H. Berghuys Kolenhandel (1915) 21 Com Cas 253 2.278








Williams v. Natural Life Health Foods Ltd [1998] 1 WLR 830 (HL) 2.196, 2.246
Willoughby v. Horridge (1852) 12 CB 742 2.105
Wilson v. Brett (1843) 11 M & W 113; 152 ER 737	2.99
Wilson v. New Zealand Express Co Ltd [1923] NZLR 201 2.105, 2.106
Wiltshire Iron Co v. Great Western Railway Co (1871) LR 6 QB 776 2.154
Winkfield, The [1902] P 42 (CA) 2.224
Winson, The. China-Pacific SA v. Food Corp of India [1982] AC 939; [1982] 1 Lloyd's Rep 117
(HL)2.100, 2.161, 2.173
Witt ex parte Shubrook, Re (1875–76) 2 Ch D 489 (CA) 2.155
Wood Floor Solutions Andreas Domberger GmbH v. Silva Trade SA (Case C–19/09) [2010] 2
Lloyd's Rep 114 2.361
Woodar Investment Development Ltd v. Wimpey Construction UK Ltd [1980] 1 WLR 277
(HL) 2.224
Woodhouse, Drake and Carey v. M.V. Righteous [1984] AMC 479 (11th Cir.)	3.26

Woodman v. Photo Trade Processing Ltd, Exeter County Court, 3 April 1981, unreported 2.300
World Transport Agency Ltd v. Royte (England) Ltd [1957] 1 Lloyd's Rep 381 2.102, 2.127, 2.132,
	2.257
Wright v. Tyne Improvement Commissioners [1968] 1 WLR 336; [1968] 1 Lloyd's Rep 113
(CA) 2.240


XL Insurance Ltd v. Owens Corning [2000] 2 Lloyd's Rep 500 2.332

Xingcheng, The. China Ocean Shipping Co (The Xingcheng) v. Andros (The Andros) [1987] 2
Lloyd's Rep 210 (PC)	3.38

Yani Haryanto v. E.D. & F. Man (Sugar) Ltd [1986] 2 Lloyd's Rep 188 (CA) 2.127
Yasuda Fire & Marine Insurance Co Ltd v. Japan Intermodal Transport Co Ltd [1995] AMC
2737 (ND Ill)	3.17
Yeramex International v. S.S. Tendo [1977] AMC 1807 (ED Va 1977) 4.116, 4.145
Yeung Kai Yung v. Hong Kong and Shanghai Banking Corp [1981] AC 787 (PC) 2.261
Ymnos, The (No. 2). Compagnie Generale Maritime v. Diakan Spirit SA (No. 2) [1982] 2
Lloyd's Rep 574	4.88
Youell v. Kara Mara Shipping Co Ltd [2000] 2 Lloyd's Rep 102 2.333
Youell v. La Reunion Aerienne [2009] EWCA Civ 175; [2009] 1 Lloyd's Rep 586 (CA)2.348, 2.357
Young (W.) & Son (Wholesale Fish Merchants) Ltd v. British Transport Commission [1955] 2

QB 1772.147, 2.282, 2.284, 2.286

Z.I. Pompey Industrie et al. v. ECU-Line NV, M/V Conmar Fortune (2000) 35 ETL 516, [2000]
AMC (145 Can Fed Ct Trial Div), affmd [2000] AMC 851 3.35, 3.54
Zenith Electronics Corp v. Panalpina Inc [1996] AMC 622	2.16
Zhi Jiang Kou, The. P.S. Chellaram & Co Ltd v. China Ocean Shipping Co [1989] 1 Lloyd's Rep
413 (Sup Ct NSW); rvsd [1991] 1 Lloyd's Rep 493 (CA NSW)2.248, 2.249, 3.36, 3.90, 4.124,
	4.137
Zim Israel Navigation Ltd v. The Israeli Phoenix Assurance Co (1998) 8 Int ML 266; (1999)
ETL 535 (Sup Ct Israel, 1 September 1998) 4.113, 4.126
Zima Corporation v. Roman Pazinsky [1980] AMC 901 (SDNY)	2.87
Zimmerman (S.) & Son (Merchants) Ltd v. Baxter, Hoare & Co Ltd [1965] 1 Lloyd's Rep 882.223,
	2.270
Zinnia, The. Stag Line Ltd v. Tyne Ship Repair Group Ltd [1984] 2 Lloyd's Rep 211 2.28, 2.292,
	2.301

BELGIUM	44/2001 (EC) on Jurisdiction and the Rec
Maritime Law	ognition and Enforcement of Judg
Art. 91 3.84	ments in Civil and Commercial Mat
	ters (Brussels I Regulation)—cont.
CANADA	Art. 60 2.337, 2. 353
Carriage of Goods by Water Act 1970 2.81	71 2.364
EUROPEAN UNION	864/2007 (EC) (Rome II Regulation) 2.324
Council Directive—	Ch. II 2.324, 2.325
75/130 EEC on the establishment of com	III 2.324, 2.325
mon rules for certain types of com	Art. 1(2)(a)–(g) 2.324
bined road/rail carriage of goods be	2(1) 2.324
tween Member States 1.7	4(1) 2.324, 2.326
93/13/EEC on unfair terms in consumer	(2) 2.326
contracts 2.29	(3) 2.326
Preamble 2.29	5 2.324
Art. 2(c) 2.29	6 2.324
3(1) 2.29	7 2.324
Annex 1(1) 2.29	8 2.324
2008/68/EEC The Dangerous Goods	9 2.324
Directive 4.19	10(1) 2.324
Council Regulations—	11(1) 2.324
1346/2000 (EC) on insolvency	12(1) 2.324
proceedings 2.316	14(1)(b) 2.326
44/2001 (EC) on Jurisdiction and the Rec	593/2008 (EC) (Rome I Regulation)
ognition and Enforcement of Judg	Recital 2.321, 2.323
ments in Civil and Commercial Mat	Art. 1(2)(d) 2.316
ters (Brussels I Regulation) 2.329, 2.335	(e) 2.316 (f) 2.316
Recital 12 2.355, 2.364	(g) 2.316
11, 15 2.364	(j) 2.316
Art. 1(1) 2.352	(3) 2.316
(2)(d) 2.352	3 2.316
22.345, 2.353, 2.361	(4) 2.317
5(1)(a) 2.354, 2.360	4(1)2.320, 2.321, 2.327
(b)2.354, 2.355, 2.360, 2.361	(b) 2.321
(3)2.355, 2.362, 2.363 232.338–2.347, 2.365	(f) 2.321
(1) 2.338, 2.340	(2)2.320, 2.321, 2.322, 2.327
(2) 2.338	(3) 2.321, 2.327
24 2.353	(4) 2.321, 2.322
26 2.364	(5) 2.320, 2.323
272.347, 2.350, 2.365	5(3) 2.323
29 2.347	9(1) 2.318
28 2,347, 2.365	(2) 2.318
31 2.347, 2.353	(3) 2.317
35(3) 2.350	10(1) 2.317

593/2008 (EC) (Rome I Regulation)	ICC Uniform Rules for a Combined Trans
—cont.	port Document 1973, amended 1975
Art. 12(2) 2.317	(No 298)—cont.
18 2.316	r. 13(a) 3.65, 3.68, 3.112
19 2.321	(b)(ii) 3.64
(2) 2.321	(c) 3.66
(3) 2.321	(d) 3.4
26 2.327	14 3.59
	15 3.130
GERMANY	16 3.139
Commercial Code 1.40	17 3.63
Railway Act (EVO) 4.82	18 3.140
Art. 83(1) 4.82	19 3.92
	UNCITRAL/CIM Draft Instrument on the
INDIA	Carriage of Goods [wholly or partly]
Multimodal Transportation of Goods Act
19931.39, 3.45, 3.77, 3.123	[by sea]1.40, 1.44, 3F
	UNCTAD/ICC Rules for Multimodal
INTERNATIONAL	Transport Documents 1.39, 3.45, 3.49,
CMI Uniform Rules for Sea Waybills 4.92	3.57, 3.103, 3.122
Art.6 1.44	r. 1 3.124
ICC Uniform Customs and Practice for	1.1 3.125
Documentary Credits 1983 (UCP	1.2 3.131
400) 3.44	2 3.124
Art. 25 3.44	2.1 3.125
(d) 3.43	2.2 3.124, 3.127
26 3.44	2.7 3.124
ICC Uniform Customs and Practice for	2.8 3.124
Documentary Credits 1993 (UCP	2.9 3,132
500) 3.44, 3.123	31.34, 3.126, 3.127
	43.126, 3.127, 3.128
Art. 23 3.44	4.1 3.128
26 3.44	4.2 3.127
30 3.44, 3.124
ICC Uniform Customs and Practice for	4.3 3.127
Documentary Credits 2007 (UCP	5 3.133
600)2.5, 3.44	rr. 5.1–5.4 1.39, 3.128
Art. 19 3.44	r. 5.1 3.129, 3.131
20 3.44	5.2 3.130
Arts 21–24 3.44	5.3 3.138
ICC Uniform Rules for a Combined Trans	5.4 3.130, 3.131
port Document 1973, amended 1975	5.5 3.132
(No 298)1.35, 3.43, 3.46, 3.49	6 3.128, 3.132, 3.133, 3.139
r. 1 3.48	6.1 1.39, 3.135
(a) 3.49, 3.125	6.2 3.133
(c) 3.48	6.3 1.39, 3.129, 3.133
2 3.48	6.41.39, 3.134, 33.171
(a) 3.49	6.5 3.61, 3.132, 3.135
(c) 3.48, 3.49	6.6 3.61, 3.132
3 3.48, 3.55	73.132, 3.137
4 3.48, 3.55	83.136, 3.138
5 3.59, 3.63	9 3.138
	10 3.138
6 3.46
7 3.55, 3.91	11 3.139
8 3.91	123.127, 3.139, 3.140
9 3.55	133.125, 3.129, 3.131
103.55, 3.92, 3.138	(b) 3.134
11 3.63
(a) 3.132	NETHERLANDS
rr. 11–18 3.61	Dutch Civil Code 1.39
11–19 3.50	New Civil Code 2.65
r. 12 3.63, 3.131	s. 8.2.3.3–2 2.65
13 3.64, 3.67	Book 8, ss. 42, 43 3.89

TABLE OF LEGISLATION

SOUTHEAST ASIA	Late Payment of Commercial Debts (Inter
ASEAN Framework Agreement on Multi	est) Act 1998 2.266, 2.268, 2.278–2.280
modal Transport 1.39	s. 1(1) 2.279
	5 2.280
SWEDEN	Limitation Act 1980
Maritime Code 3.82	s. 5 2.238
	39 2.311
UNITED KINGDOM	Merchant Shipping Act 1981
Administration of Justice Act 1982	s. 2(5) 2.292
s. 15 2.279	Misrepresentation Act 1967
Sch. 1 2.279	s. 3 2.26, 2.277
Arbitration Act 1996	Private International Law (Miscellaneous
s. 7 2.344
	Provisions) Act 19952.324, 2.324, 2.328
11 2.351	s. 11(2)(b) 2.328
Bills of Lading Act 1855 2.91, 3.37	(c) 2.328
Carriage by Air Act 1961 2.25, 2.302	12(1) 2.328
Sch. 1B 1.29	14(4) 2.328
Carriage by Air (Supplementary Provi	Railways Act 1993
sions) Act 1962 1.29	s. 123 4.24
Carriage by Air and Road Act 1979	Railway and Canal Traffic Act 1854
s. 4 2.292	s. 7 2.301
Carriage of Goods by Road Act 19651.29,	Sale of Goods Act 1979
2.302	s. 32(2) 2.133
s. 14(2) 2.63	Senior Courts Act 1981
Art. 23 2.292	ss 20–21 2.351
Carriage of Goods by Sea Act 1971 1.29, 1.37,	21 4.89
2.25, 2.302, 3.87	s. 35A 2.279
s. 1(3) 3.87	49(2) 2.277
(6)(b) 4.92	Supply of Goods (Implied Terms) Act
(6) and (7) 4.107
	1973 2.31
4 4.113	s. 13 2.96
Carriage of Goods by Sea Act 1992 2.71, 2.85,	16(3)(a), (b) 2.96
2.343, 2.357, 3.8, 3.58, 3.105, 3.166	Supply of Goods and Services Act 1982
s. 1(2)(b) 2.90	s. 9 2.231
2 2.39, 2.40	Torts (Interference with Goods) Act 1977
3 2.40	s. 13 2.175
Carriers Act 1830 2.213, 4.134	Unfair Contract Terms Act 19772.2, 2.12,
Civil Evidence Act 1995 3.126	2.25, 2.61, 2.96, 2.165, 2.191, 2.277,
Civil Jurisdiction and Judgments Act	2.285, 4.23
1982 2.329	s. 22.31, 2.182, 2.192, 2.308
s. 9(1) 2.364	(1) 2.201
32(4) 2.329	(2) 2.201, 2.213
ss 41–46 2.353	3 2.27, 2.31, 2.104, 2.179, 2.191, 2.277,
s. 49 2.344, 2.346	2.289, 2.308
Civil Jurisdiction and Judgments Act	(1)(c) 2.179
1991 2.335	(2)(b)(i)2.102, 2.130, 2.138, 2.141,
s. 26 2.351	2.200

Civil Liability (Contribution) Act 19782.248,	(ii)2.131. 2.179
2.261	4 2.192, 2.265
Coinage Act 1971 4.132	7 2.231, 2.232
Contracts (Applicable Law) Act 1990 2.316	11 2.26
s. 2(2) 2.317	(1) 2.301
Contracts (Rights of Third Parties) Act	(4) 2.300
1999 2.34, 2.40, 2.146, 3.16, 3.61, 3.105,	(5) 2.28
3.140, 4.12	12 2.26
s. 1 4.13	132.27, 2.201, 2.277, 4.17
Debtors Relief Amendment Act 1735 2.73	(1)(a) 2.308
Electronic Communications Act 2000 3.126	26 2.26
Health and Safety at Work Act 1974 4.7	27 2.26
Insolvent Debtors Relief Act 1729 2.273	29(1) 2.26

TABLE OF LEGISLATION

Unfair Contract Terms Act 1977—cont.	Law Applicable to Contractual Obligations
s. 29(2) 2.26	(England and Wales) and Northern
Sch.1 2.26	Ireland) Regulations 2009 (SI
(1) 2.185	2009/3064) 2.316
2 2.28, 2.301	Merchant Shipping (Dangerous Goods and
Statutory Instruments	Marine Pollutants) Regulations 1997
Carriage of Dangerous Goods and Use of	(SI 1997/2367) 4.19
Transportable Pressure Equipment	Railways (Convention on International
Regulations (SI 2009/1348 4.19	Carriage by Rail) Regulations (SI
	2005/2092) 4.30
Carriage of Dangerous Goods and Use of Transportable Pressure Equipment	Rules of the Supreme Court (SI
(Amendment) Regulations (SI	1965/1776)
2011/1885) 4.18	Ord. 11, r. 1 2.351
	Transfer of Undertakings (Protection of
Civil Jurisdiction and Judgments Order	Employment) Regulations (SI
2001 (SI 2001/3929)	1981/1794) 1.26
Sch.1, paras 9 and 10 2.353	Unfair Terms in Consumer Contracts Reg
Civil Jurisdiction and Judgments Regula	ulations 1994 (SI 94/3159) 2.29
tions 2007 (SI 2007/1655) 2.335, 2.344	Unfair Terms in Consumer Contracts Reg
Civil Jurisdiction and Judgments Regula	ulations 1999 (SI 99/2083 2.29
tions 2009 (SI 2009/3131) 2.353	UNITED STATES
Freight Containers (Safety) Regulations	Carriage of Goods by Sea Act 1936
1984 (SI 1984/1890) 4.71	(COGSA)2.87, 3.7, 3.15–3.20, 3.23, 3.31,
reg. 2 1.13	3.37, 3.65, 3.70, 3.75, 3.76, 3.131,
4(1), (2), (5) 4.8	3.141, 4.99, 4.134, 4.135, 4.140,
Late Payment of Commercial Debts (Rate	4.141, 4.144, 4.145, 4.149
of Interest) (No. 3) Order 2002 (SI	s. 13 3.78
2002/1675) 2.279	Harter Act 1893 3.16, 3.65, 3.75

TABLE OF INTERNATIONAL CONVENTIONS

All references are to paragraph numbers. Paragraph numbers in italic indicate where the material is set out in full.

ADR. See European Agreement for Inter	CIM Rules—cont.
national Carriage of Dangerous Goods	Art. 15 4.29, 4.43
by Road	17 4.43
Brussels Convention on Jurisdiction and	21 4.54
Enforcement of Judgments in Civil	26 4.43
and Commercial Matters 1982 2.329	48 4.27
Art. 1 2.352
(4) 2.352	54 4.59
2 2.353	57(1) 4.84
5 2.338, 2.354	(2)(c) 4.84
(1)2.354, 2.356–2.359	CMR. See International Convention on the
(3)2.355, 2.356, 2.357	Carriage of Goods by Road
6 2.353	CMNI. See Budapest Convention on the
(1) 2.353	Contract for the Carriage of Goods by
(2) 2.353	Inland Waterway 2000
172.337–2.347, 2.365	Code of Conduct for Liner Conferences
18 2.353	1974. See UN Convention on a Code
20 2.364	of Conduct for Liner Conferences
212.347, 2.350, 2.365	1974
22 2.347, 2.365	Container Safety Convention 1972 1.13
23 2.338, 2.347	Convention on International Carriage by
24 2.347, 2.353	Rail 1980 (COTIF) 1.29, 2.25, 4.2
28(3) 2.350	Art. 2(1) 3.79, 4.29
52 2.353	(2) 4.29
53 2.353	3 4.29
57(2) 2.364	(3) 3.79
Title II, ss 3, 4, 6 2.350	Appendix C (RID Regulations) 4.19
Budapest Convention on the Contract for	Convention on Choice of Law Agreements
the Carriage of Goods by Inland Wa	2005 2.335
terway 2000 (CMNI) 1.29	Convention on Limitation of Liability for
Art. 2(2) 3.82	Maritime Claims 1976 (London
CIM Convention. See International Con	Convention) 3.118
ventions on the Carriage of Goods by	Art. 1 4.89
Rail 1961, 1980	Convention for the Unification of Rules
CIM Rules 4.28, 4.38, 4.77–4.79	Relating to the Arrest of Sea-Going
Art. 1 4.29	Ships 1952
(1) 4.29	Art. 7 2.365
(4) 4.30
2(1), (2) 4.29	COTIF. See Convention on International
6 4.29	Carriage by Rail 1980
8(1), (2), (3) 4.29	CSC. See International Convention on Safe
11(4) 4.118	Containers 1972
12 4.29	European Agreement for International
13 4.29	Carriage of Dangerous Goods by Road
14 4.29	(ADR) 4.45, 4.73

Hague Rules 19241.7, 1.27– 1.32, 1.37, 1.39,
1.44, 2.32, 2.48, 2.81–2.87, 2.91,	Art. 1(3) 3.97
2.138. 1.283, 2.286, 2.292, 2.298,	(4) 3.97
2.303, 2.307, 2.311, 2.312, 2.313,	(5) 3.97
3.3, 3.5, 3.8, 3.10, 3.15, 3.18, 3.31,	(6)1.29, 3.36, 3.120, 3.121
3.34, 3.58, 3.70, 3.71, 3.89, 3.107,
3.108, 3.125, 3.129, 3.151–3.152,	2 3.97
	3 3.96
3.171, 4.92, 4.99, 4.125, 4.126,	4 3.106
4.127, 4.131–4.132	5 1.38, 3.107
Art. 1(b) 2.81	(3) 3.61, 3.113
(c) 4.107	(5) 3.63
3, r. 2 4.98
3 4.113	(7) 3.106, 4.25
6 2.313	6 3.108
7 3.161	(1)(b) 3.113
82.233, 2.247, 4.113, 4.132	(2) 3.108
4, r. 2 2.30	(a) 4.151
(a), (b) 3.129	(b) 4.152

(i), (n) 4.128	7(1) 3.106
4 2.137	(2) 3.106
5 2.297, 3.63, 4.104, 4.132, 4.134	(3) 3.106
(a) 2.292	83.63, 3.114, 3.132, 4.108
Hague-Visby Rules (Hague Rules as	9 4.100, 4.108
amended by Visby Protocol 1968)1.27,	10 3.35
1.29, 1.32, 1.37, 1.44, 2.25, 2.82,	11 3.35
2.83, 2.85, 2.91, 2.311–2.314, 3.71,
4.90, 4.92, 4.100	12 3.35
Art. I 3.37	13 3.93, 3.115
	14 3.102
(b)2.81, 3.3	15 3.102
(c) 4.107	(2) 3,161
(e) 3.52	16 3.102
Arts I–VIII 3.65, , 4.133
II 4.124	(3)(b) 3.126
III, r. 3 4.113	17 3.91
4 3.126, 4.113	(1) 3.102
5 3.91	(2)–(4) 3.102
62.307, 2.313, 3.92, 3.116,	18 3.104
3.176, 4.102, 4.121	(1), (3) 1.38
6 bis 2.309, 3.38	(2)(a) 4.151

7 3.161	19 3.92
82.25, 2.32, 2.247, 2.282, 2.365,	(1) 3.116, 4.120
3.20, 3.31, 3.34, 3.35, 4.113, 4.118	(2) 3.116
IV, r. 2 2.30	(4) 3.116
(a) 1.34, 3.130	(5) 3.116
(b) 1.34, 3.130	(6) 3.116
(c)–(p) 3.131	(7) 3.116
(i), (n) 4.128
(l), (n) 4.104	(8) 3.116
4 2.138	20(1) 3.116, 3.176
	(2), (3) 3.116
52.292, 2.302, 3.63, 4.104,	(4) 3.116
4.105, 4.132, 4.133, 4.134	(5) 3.38, 3.116
(a)2.292, 3.108, 3.132	21 2.365, 3.116
(b)2.292, 3.108, 3.132	(4) 3.104
(c)3.108, 3.133, 4.133, 4.148,
4.150, 4.151, 4.152	22 3.116
(e) 3.63, 3.132	23 3.117
6 2.219, 3.91, 3.115	24 3.118
(1)(c) 3.61	25(1) 3.118
IV bis, r. 1 3.61	(2) 3.118
VII 3.36, 4.124	(3) 3.118

International Conventions on the Carriage
of Goods by Rail 1961, 1980 (CIM	Art. 5(2) 3.104
1980) 1.29, 4.27	18 3.63
Art. 1(4) 3.79	(3) 3.111
7A 4.44	(4)1.29, 3.39, 3.82, 3.89, 3.111,
	3.173
24(1) 3.79	22(3) 2.292
International Haulage of Private Wagons by
Rail	26 2.25
Annex III: International Carriage of	31 2.310
Containers by Rail (RICo) 4.29	38 1.29, 3.120, 3.121
Art. 3 4.29	(1) 3.82
International Convention on the Carriage	(2) 3.78, 3.173
	Rome Convention 1980 2.316
of Goods by Rail 1980 as amended by	Art. 3(2) 2.317
Protocol of Vilnius 1999 (CIM 1999)3.78,	(3) 2.317
4.29, 4.79
Art. 28 4.29	4(4) 2.322
31 4.29	5 3.97
42 4.29	7(1) 2.317
	(2) 2.318
International Convention on the Carriage	8 (1), (2) 2.317
of Goods by Road (CMR)1.15, 1.26, 1.29,	10(2) 2.317
1.32–1.33, 2.24, 2.54, 2.71, 2.77,	Rotterdam Rules: UN Convention on Con
2.159, 2.292, 2.294, 2.302, 3.27,	tracts for the International Carriage of
4.28, 4.33, 4.38, 4.77, 4.78, 4.79,
4.81	Goods Wholly or Partly by Sea 1.27, 1.44,
Art. 1 3.82, 3.84	2.85, 3.35, 3.57, 3.143, 4.124
(1) 3.97	Art. 1 3.147
	(1)3.147, 3.149
Arts 1–40 4.27	(2) 3.153
Art. 2 1.29, 3.68, 3.82, 3.83, 3.85, 3.90, 3.99,	(5) 3.147
3.173, 4.83	(6) 3.147
3 2.366	(7)3.147, 3.155
4 3.104
6(1)(k) 2.30	(8) 3.97
	(10) 3.147
7(3) 2.30	(11) 3.97, 3.167
8(1) 3.27	(12)–(27) 3.147
12 1.44	(15) 3.102
13(2) 2.164	(16) 3.102
17 2.288, 3.63	(17) 3.158
(4) 3.63	(18) 3,157
	(24) 3.97
(5) 4.25
18(2) 3.63	3 3.158
22 2.219, 4.45	4 3.106
232.292, 2.302, 2.310, 3.63	(1) 3.155
(1) 2.292	5 3.147
(3) 4.33	(1) 3.151
	6(1) 3.152
25(2)(b) 4.33	7 3.152
28 2.327	83.147, 3.157
29 3.114, 3.132
31 2.365, 2.366, 3.85	93.147, 3,157
(2) 2.365	123.106, 3.154, 3.170
	(3) 3.154
32 2.310	13(2) 4.125
(1) 3.114, 3.132	14 3.175
41 2.25, 2.31, 2.32, 2.164, 2.265, 2.310,	16 3.175
2.366, 3.90	17 3.173
International Convention on Safe Contain	(3) 3,175
ers 1972 (CSC) 4.8, 4.45, 4.71
	(b), (f), (l), (m) 3.175
Lugano Convention 1988 2.329	(6) 3.106
Art. 5(1) 2.353	18 3.155
Montevideo Treaty on International Land	19 3.38
Carriage 1940 1.29, 2.30	20 3.106

tracts for the International Carriage of	tracts for the International Carriage of
Goods Wholly or Partly by Sea—cont.	Goods Wholly or Partly by Sea—cont.
Art. 22 3.175	Art. 64 3.38, 3.116, 3.176
(1) 3.108	66 3.116
23 3.92, 3.116	Chapters 14 and 15 3.176
(1) 3.176, 4.120	Arts 66–74 2.365
(2) 3.176	66–78 3.176
(4) 3.116, 3.176	Art. 67 3.1'7
(5) 3.116	75 3.116
(6) 3.116	(3) 3.116

25 4.100	793.117, 3.153, 3.175
(1) 4.109	803.117, 3.153, 3.175
26 3.170	(5) 3.153
31(2) 3.91, 3.102	81 3.152
32 3.91, 3.115	823.118, 3.170, 3.173
Chapter 8 3.159	83 3.118, 3.174
353.102, 3.159	84 3.118, 3.174
363.102, 3.159, 4.115	86 3.118, 3.174
(4)(a) 3.161	TCM Draft Convention on the Combined
(b) 3.161	Transport of Goods 19711.32, 1.34–1.35,
37(2) 3.176	1.37
(c) 4.115	Tokyo Rules 1969 1.32, 3.40

38 3.162	Art. VIII(2) 1.32
(1) 3.173	Uniform Rules Concerning the Contract of
39(1) 3.162	International Carriage of Goods by
(2) 3.161	Rail, Appendix B to the COTIF Con
40 3.102, 4.116	vention (URCIM)4.28, 4.30, 4.39, 4.80
(1) 3.164, 4.115	Art. 1 4.29
(2) 3.164, 4.115	(1) 4.29, 4.30
(3) 3.164	(4) 1.29, 3.79
(4) 3.164	6(1) 4.30
413.102, 3.163, 4.115	(9) 4.44
(b)(i) 3.126, 3.156	Arts 6–8 4.44
(b)(ii) 3.57, 3.156, 3.163	9 4.45
(c) 3.126, 3.163	10 4.43
42 3.163	11(3) 4.50

43 3.167	15 4.43
45 3.167	16 4.57
46 3.57, 3.167	17(6) 4.43
47 3.165	24 4.31
(2) 3.165	47 4.56
48 3.165	(2)(b) 4.84
50 3.167	48 3.79, 4.27
51(1) 3.167	Appendix C: RID Rules 4.31, 4.45, 4.73
(b) 3.169	Appendix D: UR CUV 4.31
(2) 3.57	Appendix E: UR CUI 4.31
(3) 3.165	Appendix F: UR APTU 4.31
57 3.166	Appendix G: UR ATMF 4.31
58 3.166	Annex 8 4.31
59 3.175	United Nations Convention on Interna

(1) 3.108	tional Multimodal Transport of Goods
(2)3.108, 3.175, 4.151	1980 (MMTC)1.7, 1.34, 1.37, 3.49, 3.93,
60 3.61, 3.113, 3.175	3.115
61 3.63, 3.114	Preamble 3.94
(1) 3.175	Art. 11.39, 3.95, 3.98, 3.120, 3.149
62 3.176	(1)3.99–3.101
(1) 3.116	(2) 3.98
(2) 3.116	(3) 3.98, 3.128
(3) 3.176	(4) 3.100
63 3.116	(7) 3.124

United Nations Convention on Interna	United Nations Convention on Interna
tional Multimodal Transport of Goods	tional Multimodal Transport of Goods
1980 (MMTC)—cont.	1980 (MMTC)—cont.
Art. 2 3.98	Art. 233.115, 3.137
Arts 1 and 2 3.97	24(1), (2) 3.138
Art. 3 1.37	Arts 24–27 3.116
(1) 3.95	Art. 25(1) 3.138
(2) 3.95	28 3.117
4 3.94	(3) 3.104
5 3.103	(4) 3.104
(4) 3.103	293.118, 3.119
Arts 5–13 3.102	303.118, 3.119
5(2) 3.126	(4) 3.99, 3.121
6, 7 3.105, 3.127	31(1) 3.106
7(2) 3.127	(2) 3.106
8 3.103, 3.104	Arts 31–33 3.96
(1) 3.100	Art. 32 3.95
(j) 3.160	36 3.95
(2) 3.100, 3.104	383.118, 3.120
10(b) 3.126	Annex, Arts I–VI 3.95
12 3.115, 3.137	UN Convention on a Code of Conduct for

13 1.39, 3.104	Liner Conferences 1974 3.93
14 3.126	URCIM. See Uniform Rules Concerning
(b)(ii) 3.106	the Contract of International Carriage
(3) 3.104	of Goods by Rail, Appendix B to the
Arts 14–21 3.106	COTIF Convention
Art. 15 3.127	Vienna Convention on the Law of
16 3.107	Treaties 3.121
(1) 3.129, 3.130	s. 3 3.96
(2) 3.182	Warsaw Convention 1929
(3) 3.128	Art. 20(2) 1.34
(4) 3.113	31 3.121
(5) 3.113	Warsaw Convention 1929 as amended at
18 3.108	The Hague 1955 and by Montreal
(1)–(3) 3.110	Additional Protocol No. 4, 1975, with
(1) 3.109, 3.115	modifications, and as supplemented by
(2) 3.108	the Guadalajara Convention 2.25, 2.284,
(b) 3.133, 4.152	3.72
(3) 3.109, 3.133	Art. 1(1) 3.97
(4) 3.113, 3.135	8(c) 2.30
(5) 3.61, 3.132	9 2.30
(6)3.108, 3.114, 3.115, 3.132	18 3.83
19 3.109–3.113, 3.134, 3.171	(3) 1.29, 3.82
20 3.114	22 2.302
(1) 3.139	25 3.132
(2) 3.140	26 2.310
21 3.114	28(1) 2.365
(1) 3.132	31 1.29, 3.78
223.115, 3.137	(1) 3.82

AAI Forwarding Ltd, Terms and Condi	BIFA 2005A (Forwarding Terms approved
tions (2003–2006) 2.1	by the British International Freight
cl. 15 2.284	Association 2005)—cont.
Baltime Charterparty 4.88	cl. 2(B) 2.24, 2.25, 2.32, 2.303, 2.310, 3.134
BIFA 1989 Standard Trading Conditions	3 2.23, 2.33, 2.34
(Forwarding Terms approved by the	4(A) 2.44, 2.50, 2.51
British International Freight Associa	(B) 2.124, 2.132, 2.134, 2.140
tion 1989) 2.11, 2.301	5 2.50, 2.134
cl. 2(A) 2.20	6(A) 2.124, 2.125, 2.126, 2.133
(B) 2.31, 2.32	(B) 2.44
42.19, 2.33, 2.38, 2.41, 2.340	7 2.125
5(B) 2.44, 2.50, 2.73	8 2.147, 4.22
(C) 2.44	(A) 2.162
6 2.44	9 2.166
72.124, 2.133, 2.258	10 2.168
(C) 2.130	(B) 2.175
8 2.132, 2.140	112.43, 2.51, 2.68, 2.178
92.141, 2.224	(A) 2.182
12 2.177	(B) 2.183, 2.185
14(B) 2.208	12 2.51, 2.68, 2.179
152.199, 2.200, 2.201	(A) 2.187
18 2.13	(B)2.215, 2.266, 2.281
23 2.25	(C) 2.187
26 2.132, 2.197	132.192. 2.200
28 2.26	142.179, 2.203, 2.239
29A 2.294	15 2.179, 2.203, 2.235, 2,239
BIFA Standard Terms of Contract 2000	162.179, 2.211
	(A) 2.133
(Forwarding Terms approved by the
British International Freight Associa	172.214, 2.221
tion 2000) 1.21, 2.10, 2.301	(A) 2.207, 2.223, 2.228, 2.235, 2.237
cl. 1 2.19	(i) 2.237
5 2.134	(B) 2.204, 2.209
6 2.124	(C) 2.229
72.124, 2.132, 2.140	18 2.207, 2.224, 2.236, 2,239, 2.240
13 2.200	192.215, 2.244
14(B) 2.203	202.34, 2.36, 2.215, 2.221, 2.237, 2.250
17 2.214	(A) 2.204, 2.209
222.215, 2.266, 2.281	(C) 2.241, 2.245
24 2.197	212.215, 2.266, 4.22
cll. 24–29 2.2	(A)2.267, 2.272, 2.277
cl. 27 2.297	(B) 2.278, 4.22
BIFA 2005A (Forwarding Terms approved	23 2.95, 2.99, 2.132, 2.182, 2.185, 2.197,
by the British International Freight	2.228, 2.286, 2.288
Association 2005) 2.1, 2.9, 2.10	(A) 2.277
cl. 1 2.19, 2.37	242.122, 2.239, 2.282
2(A)2.12, 2.19, 2.99, 2.199	25 2.282

by the British International Freight	cl. 13(o) 1.17
Association 2005)—cont.	cll. 16(a), (b), (c), (f) 1.17
cl. 262.205, 2.292	British Railways Board General Conditions

(A)2.295, 2.298, 2.303	for Carriage of Goods 1986 (BRB) 4.2, 4.4
(i)(b) 2.300	cl. 2 4.12
(C) 2.285, 2.292	3 4.16
(D) 2.211, 2.213	4 4.12

272.216, 2.304	(1) 2.219, 4.10
(A) 2.305, 2.306	5A 4.24
(B) 2.305, 2.312	6 2.301, 4.26
28 2.312, 2.315, 2.340, 2.351	7 4.23

BIMCO Combiconbill 1971 3.43	8(1) 4.22
cl. 12 3.65	(2) 4.22
BIMCO Combiconbill 1995 1.36, 3.43, 3.56	(3) 4.22
	9 4.21
cl. 1 3.49	10 2.170, 4.21
4 3.92
9 3.47	11 4.21
cll. 10–12 3.62	12(1) 4.27
	13 4.20
cl. 14(2) 3.63	14 4.23
17 3.56
18 3.91	15 4.22
22 3.91	204.4, 4.18
	23 4.4
BIMCO Combiconwaybill3.43, 3.56	25 4.4
BIMCO Combidoc 19771.36, 3.43, 3.66, 3.88
cl. 1 3.49	26 4.4
4 3.92	27 4.4
	28 4.4
6 3.47	Brittany Freight General Conditions for the
8 3.47
cll. 6–8 3.62	Carriage of Freight
cl. 11(1)(b) 3.65	cl. 5.b 4.98
	CIFFA: Canadian International Freight
12 3.61	Forwarders Association
cll. 13, 17, 18 3.56
cl. 15(4) 3.63	cl. 5 2.188
17 3.91	11 2.176
	13 2.183
18 3.91	16 2.264
BIMCO Conlinebill 1978 3.4	Condor Logistics Conditions of Carriage
BIMCO Conlinebill 2000 1.42
cl. 6 3.2, 3.4, 3.47	and/or Warehousing 2009
	cl. 25.1 2.31
BIMCO Multidoc 1995 1.39, 3.43, 3.123,	DAMCO Bill of Lading
3.124	cl. 1 4.93
cl. 2 3.124
4 3.138	2 4.95
	4 2.245, 4.91
9 3.124	6 3.62
11 3.131	6.1(c) 3.7
12(a)(i) 3.134	6.2(b) 3.65
(a)–(g) 3.134
	(d) 3.66
(g) 3.132	(e) 3.66
13(a) 3.132	7 3.62
14 3.138	7.2(a) 3.65, 4.131
15(a) 3.139
	(c) 3.63
(b) 3.142	7.3 3.63
(c) 3.140	8.1 3.61
16 3.126	9 3.92
19 3.137
	10 3.63
20 3.137	11 2.231, 3.47, 4.122
BIMCO Slothire 1.17	12 4.97
cl. 13 4.91	14 3.56, 3.91, 4.111
14 4.90	15 2.250

15(a) 4.90	18 4.99

cl. 20 3.47	cl. 12 4.37
21 2.235, 3.91	DB Schenker GCOC 4.2
21.3 2.237	cl. 1 4.5

DAMCO Standard Trading Conditions	3 4.42
2009	4 4.10
cll. 10, 11 2.44	4.1 4.10
cl. 11(a) 2.44	4.2 4.16
(b) 2.68, 2.71	6 4.22
(c) 2.179	6.9, 6.10 4.2

14 2.44, 2.140	7.2 4.22
15 2.96	8.4 4.26
18 2.217	10.3.1 4.23
19 2.217	10.4 4.26
20(a) 2.214, 2.250	11 4.23
22 2.235, 2.237	15 4.20

(a) 2.204	16 4.5
(b) 2.204, 2.237	19.1 2.31
(c) 2.209, 2.237	DB Schenker Intermodal Provisions
23(a), (c) 2.204	pr. 8 4.49
25 2.188	DHL Express (UK) Ltd STC
27 2.183	cl. 3 2.217

29(b)(i) 2.247	5 2.235, 2.237
(iii) 2.264	5.1 2.204
30 2.204	5.2–5.5 2.209
32 2.192	9.2 2.280
35(a) 2.266	9.62.188, 2.266, 2.281
(b) 2.266, 2.281	10 2.259, 2.269
(c) 2.266	10.09 4.12

(d) 2.266	11 2.168, 2.176
36 2.166	13 2.292
37 2.125, 2.133	13.1 2.288
38(a) 2.124, 2.129	13.7 2.282
39 2.168	15 2.250
40 2.168	15.3 2.264
412.147, 2.160, 2.162, 2.176	15.5 2.264

45 2.288	17.1 2.147, 2.162
47 2.292	17.2 2.161
48 2.292	17.3 2.150
49 2.300	19.9 4.12
50 2.295	10.10 4.12
51 2.305	Eurotunnel Freight Terms and
53 2.9	Conditions 4.65

54 2.316	cl. 11 4.76
DB Schenker AG for International Car	Evergreen Line Bill of Lading
riage by Rail 2007	cl. 1 4.93
cl. 1.1 4.32	2 4.95
1.2.1 4.49	4 4.91
1.2.2 4.49	7(2) 4.131
1.3 4.42	10 4.122

1.4 4.42	12 4.111
2 4.44	16 4.99
6 4.50	17 4.99
DB Schenker ALB	18 4.97
cl. 1.3 4.42	(2) 4.98
4 4.48	19 4.122
4.2 4.46
	EWS Conditions 1007 4.2
4.3 4.49	FENEX (The Netherlands Association for
9 4.45	Forwarding and Logistics) General
10.2 4.60	Conditions2.1, 2.20

Forwarding and Logistics) General	ing (FBL 1992)—cont.
Conditions—cont.	cl. 17 3.92, 3.138
cl. 8 2.47	FIATA Multimodal Waybill (FWB) 3.43, 3.56
cl. 16(4) 2.65	FIATA Neutral Air Waybill 1.21

FIATA Combined Transport Bill of Lading	First GB Logistics Terms and Conditions
(FBL) 1.39, 3.43, 3.43, 3.56	cl. 13 2.282
cl. 1 3.49	Freightliner Conditions 1986
2 2.44, 2.69	cl. 3 2.34

2.1 2.5	Freightliner Conditions of Carriage 1995
(a) 2.140	Freightliner Conditions of Carriage 1999
2.2 2.103	cl. 1 4.5
3.3 3.56	2 4.7, 4.21

4 3.91	(a) 4.8
5 3.91	3 4.9, 4.16
5.1 3.56	4 4.11, 4.55
cll. 6–8 3.62	(c) 2.245
cl. 7 3.65	5 4.21, 4.27

9 3.61	6 4.16
10.2 3.63	(b) 4.44
11 2.135, 3.140	84.5, 4.9
12.3 3.47	9 4.5, 4.10, 4.18

16 2.305	10 4.10, 4.20
17 2.305	11 4.5, 4.21
19 3.92	14 4.7
FIATA Forwarder's Certificate of Receipt	12 4.5, 4.21
(FCR) 2.3, 2.6, 2.10	(c) 4.20

FIATA Forwarder's Certificate of Trans	13 4.10, 4.22
port (FCT)2.4, 2.5, 2.6	14 4.22
cll. 2, 3 2.62	15(a), (b) 4.10, 4.11
FIATA Model Rules for Freight Forward	(c) 4.9
ing Services2.7, 2.10
	16 4.21
r. 1.1 2.10	cll. 16–19 4.23
1.2 2.10	cl. 17 4.6
2.1 2.19	18 4.6, 4.7, 4.10, 4.21
1.2 2.10, 2.17	19 4.10

5 2.134	22 4.10
7.1 2.71	23 4.28
7.3 2.44, 2.140	24 4.24
8.3 2.44	Geologistics GTC
9.1 2.305	cl. 1 2.13, 2.14

19 2.316	2(iii) 2.75
FIATA Multimodal Transport Bill of Lad	(iv) 2.71
ing (FBL 1992) 3,123	3 2.33
cl. 3.1 3.56	4 2.259
3.2 3.56, 3.126
	5 2.217
4 3.91, 3.137	6 2.183, 2.185
5 3.91	72.204, 2.207, 2.235
5.1 3.56	8 2.204
5.2 3.137	9 2.124, 2.130

7.2 3.65	10 2.168
8.1 3.132	(B)(i) 2.176
8.3–8.6 3.134	(ii) 2.177
8.6(a), (b) 3.134	11 2.147, 2.162
8.7 3.61, 3.135	12 2.266

8.8 3.132	13 2.266
8.9 3.63, 3.132	(ii) 2.281
9 3.139	14(i) 2.285, 2.291
10.2 3.140	(ii)2.291, 2.292

12 3.124	15 2.292
16 3.138	16 2.305, 2.306

Geologistics GTC—cont.	Intercontainer-Interfrigo (ICF) General
cl. 17 2.247	Conditions applicable to Combined
182.250, 2.252, 2.264	Transport 1994 4.35, 4.36
202.124, 2.125, 2.129	cl. 30 4.37
21 2.141, 2.145	Intercontainer-Interfrigo (ICF) General
22 2.211	Conditions applicable to Combined
(i) 2.213	Transport 2000
(ii) 2.213	Art. 1, cll. 1–6 4.37
23 2.166	cll. 7–10 4.41
	Art. 2, cll. 11–17 4.43
26 2.104	Art. 3, cll. 18–20 4.45
27 2.283	Art. 4, cll. 21–24 4.46
28 2.25, 2.140	cl. 22 4.46
29 2.316, 2.329	Art. 5, cll. 25–28 4.48
German Freight Forwarders' Standard	Art. 6, cl. 29 4.46
Terms and Conditions 2003 2.1
HAFFA (Hong Kong Association of	cll. 29–33 4.50
Freight Forwarding and Logistics)	Art. 7, cl. 34 4.52
2008	35 5.61
cl. 1 2.19	Art. 8 4.42
1.4 2.24	cll. 38–39 4.54
5.22.124, 2.141	Art. 9, cl. 41 4.38, 4.57
	43 4.38
11.11 2.166	cll. 40–44 4.56
13 2.188	Art. 10, cll. 45–47 4.37
14 2.162	cl. 48 4.37
18 2.168	cl. 49 4.37
Hapag-Lloyd Bill of Lading for Multimodal	50 4.37
Transport or Port to Port Shipment 1.42	Art. 12, cl. 54 4.37
IFF Conditions 19742.6, 2.69	54 4.47
13 2.285	55 4.42
(i) 2.261	56 4.37
23 2.263	57 4.36
24 2.96	58 4.36
IFF Conditions 1981

	Arts. 24–28 4.62
cl. 2 2.104	Interfrigo Conditions Applicable to Trans
3 2.128	port of Transcontainers Fitted for
4 2.128	Controlled Temperature 1973 4.35, 4.53
6 2.145	Art. 5 4.53
9(i) 2.213	Ital Logistics Terms and Conditions 2.1
18 2.283	Le Shuttle Conditions of Carriage 4.65
	Linertime Charterparty 4.88
(b) 2.291	Maersk Line Terms and Conditions 1.36
20 2.291	cl. 4 2.140, 4.91
21 2.145	5.3 3.7
222.250, 2.252, 2.257, 2.264	6.2 3.62
23 2.44, 2.62
24 2.252	(a)(i) 3.65
IFF Conditions 1984	(ii) 3.66
cl. 3C 2.6	(c)(ii) 3.66
4D 2.128, 2.129	6.3 3.62
5 2.131	7 2.235
	8.1 3.61
6(A) 2.217	9 2.305
15 2.306	15 2.250
20 2.306	19 2.135, 3.47
362.283, 2.286, 2.288	(2) 2.136
Institute of Shipping and Forwarding	Maersk Line Multimodal Transport Bill of
Agents Conditions	Lading 1.42, 3.134
cl. 12 2.284	cl. 1 4.93
Intercontainer Conditions 1990 4.36, 4.47	2 4.95
Art. 38 4.47 39 4.47	6.2 4.132 7.2(a) 4.131

Lading—cont.		Conditions 2011—cont.
cl. 11	4.122	cl. 4.3 2.204
(2)(c)	4.98	7 2.1
(3) 4.118		8.4 2.267
12	4.97	9.2 4.92
13	4.122	P&O Nedlloyd Bill of Lading
14	4.111	cl. 7(1) 2.299
		P&O Nedlloyd Logistics STC 1997
15.5	4.96	cl. 3A 2.47
18 4.99, 4.106		4B 2.129
Mediterranean Shipping Company Bill of		5A 2.134
Lading, Standard Terms and Condi		7D 2.264
tions (MSC STC)	3.56	Rail Link Europe General Conditions
Mitsui OSK Lines Combined Transport		Art. 1 4.37.1
Bill (1992)	3.61	2.1 4.37.1
New York Produce Exchange Inter-Club		2.2 4.37.1
Agreement	4.88	4.1 4.40
Nordic Association of Freight Forwarders		5 4.42
(NSAB) General Conditions 2000	2.1	5.4 4.60
North Sea Freight Conditions of Carriage		7 4.43
(NSFCC) (2011)	3.43	84.51
cl. 1	4.93	8.54.51

8	4.99	9.4 4.45
12	3.92	11.1 4.55
14	3.61	11.2 4.41, 4.55
15	4.91	12.2 4.41
16(4)	3.65	13 4.57
20	4.97	Railfreight Distribution Standard Condi
North Sea Standard Conditions of Car		tions of Carriage 1992 (RfD
riage: NSSCC 1994	3.43	Conditions) 4.2
North Sea Standard Conditions of Car		Road Haulage Association Conditions of
riage: NSSCC 2001	3.43	Carriage 1998
cl. 10	3.47	cl. 11(2) 2.301
13.2	3.65	Road Haulage Association Conditions of
		Carriage 2009
OOCL Logistics Business Terms and		cl. 1 4.86
Conditions	2.1	2(1) 2.33
cl. 8	1.23	(4) 4.85
13	2.98	3 2.219
P&O Ferries Freight Terms and Conditions		4 4.20
of Carriage 2009 2.266		5 2.282, 4.17
cl. 6.3	4.98	6 2,170, 4.20
7 2.237		7 4.20
11.2	2.31	9(2)(a) 2.204
P&O Ferrymasters General Terms and		(b) 2.283, 4.24, 4.85
Conditions 2002		(viii) 2.286
cl. 2.1.2	2.16	9.3 4.20, 4.21
		10 4.24
2.2	2.16	11 2.292, 4.87
P&O Ferrymasters General Terms and		(2) 2.292
Conditions 20112.1, 2.9		13 2.305, 4.23, 4.87
cl. 1.1 2.204		(1) 2.308
2	2.9	15 4.87
2.1.2	2.16	Roadways Container Logistics conditions
2.2	2.16
2.3 2.24, 2.31		2002 4.85
3 2.204		cl. 10 4.87
		Slothire (BIMCO) 1.17
3.1.1 2.204		cl. 13 4.91
4 2.204		14 4.90

Freight Forwarders' Conditions		cl. 17(c) 2.266
cl. 21	1.23	182.69, 2.124, 2.133, 2.134
TNT Ipec Consignment Note	1.44	(b) 2.130
TT CLUB 100		(e) 2.141
cl. 1	4.93	19(a) 2.124, 2.129
2	4.95	(b) 2.131
		20 2.131, 2.168
5 2.247, 4.91
(3) 2.264		21 2.168
6(1)(a)	3.65	22 2.147
(c)	3.7	(a) 2.176
(2)(b)	3.65	(b) 2.177
(3)(b)	3.65	232.147, 2.160, 2.162
(ii)	4.131	24 2.166
		26 2.231
(d)	3.61	(a)(iii)	2.232
7 2.235, 2.250
(6) 2.237		27 2.282
8(3) 4.98, 4.122		(a) 2.283
9	4.97	(b) 2.288
13 3.47, 3.62		(c) 2.285
16	3.62	(d) 2.291
		cll. 28–30 2.292
19	3.78	cl. 28(a) 2.292
20 2.315		29(a), (b) 2.292
TT CLUB 400	2.1
cl. 1(e)	2.23	31 2.305
(g)	2.19	(a)(i) 2.308
(j)	2.19	(ii)2.305, 2.312
2(a)	2.13	35 2.26, 2.30
		40(a) 2.124
(b) 2.6, 2.16, 2.71		41 2.211
(c)	2.14	42 2.44, 2.140
3	2.47	44 2.138
(a)	2.75
4(a)	2.44	46	3.78
(b)	2.75	TT CLUB 6001.25, 2.1
(c)	2.71	cl. 1 2.19, 2.20
(d) 2.68, 2.179		3.1	2.95
		3.2(A)	2.95
5	2.33	4.1 2.95, 2.123
6 2.217		4.2	2.95
cll. 6–9 2.217		4.4	2.95
cl. 7 2.217		5	2.20
8 2.235
9 2.214		7 2.204
102.204, 2.207, 2.235		7.2	2.20
		10 2.167
(a) 2.237		13 2.180
(c) 2.209		15 2.123
11 2.204		15.1 2.259
12 2.183, 2.184		16	2.47
(d) 2.185		22 2.98, 2.176
13 2.211, 2.213
14 2.190		23.2 2.123
		24	2.95
(a) 2.188		35.1 2.315
15 2.282, 2.291		35.2 2.315
16 2.237, 2.250		UIRR (International Union of Combined
(c) 2.192		Rail and Road Transport Companies)
(d)(i) 2.247		General Conditions 1998	4.65
(ii)	2.224	Preamble	4.66
(iii)	2.264
		cl. 1	4.66
(e) 2.224, 2.226		1.4	4.84
17(a) 2.266		1.5.9.3	4.84

UIRR (International Union of Combined	UIRR (International Union of Combined
Rail and Road Transport Companies)	Rail and Road Transport Companies)
General Conditions 1998—cont.	General Conditions 1998—cont.
cl. 3 4.68	cl. 8.5 4.70
3.6 4.69	9 4.84
4 4.68	10.3 4.75, 4.76
4.1 4.76, 4.84	10.5 4.77
5 4.71	11.6 4.76
5.3 4.72	UKWA General Conditions 2.1
6 4.73	cl. 3(iii) 2.288
6.5 4.74	4(ii) 2.264
7 4.75	UKWA Contract Conditions for Logistics
8 4.76	2006 2.1
8.2 4.76	cl. 2.1.2 2.214

AAI Conditions: AAI Forwarding Ltd, Terms and Conditions (2003–2006)

ADSp: German Freight Forwarders Standard Terms and Conditions (2003)

Amended Convention: The Hague Protocol to the Warsaw Convention 1955

Arnold: Arnold, Outsourcing Contracts (Sweet & Maxwell, 1995)

Benjamin: M. Bridge (Ed.), Benjamin's Sale of Goods 8th edn (Sweet & Maxwell, 2010)

BIFA: British International Freight Association

BIFA Guide: Exporter and Forwarder, The Professional Guide, by the British International Freight Association (1990)

BIFA 2005A: BIFA Standard Trading Conditions 2005A (2009)

BIMCO: Baltic and International Maritime Council

Booker: Mark D. Booker, Containers: Conditions, Law and Practice of Carriage and Use (Witherby, 1987)

Bools: Michael D. Bools, The Bill of Lading: A Document of Title to Goods—An Anglo-American Comparison (LLP, 1997)

Bowstead: F.M.B. Reynolds, Bowstead & Reynolds on Agency, 18th edn (Sweet & Maxwell, 2006)

Branch: Alan E. Branch, Import/Export Documentation (Chapman & Hall, 1990)

BRB Conditions: British Rail General Conditions of Carriage of Goods (1986)

Brewer et al: A.M. Brewer, K.J. Button and D.A. Hensher, Handbook of Logistics and Supply-Chain Management (Pergamon, 2001)

Briggs and Rees: A. Briggs and P. Rees, Civil Jurisdiction and Judgements, 5th edn (Informa, 2009)

Bugden: P. Bugden, Goods in Transit and Freight Forwarding (Sweet & Maxwell, 2010)

Carver: R. Colinvaux (ed.), Carriage by Sea, 13th edn (Stevens, 1982)

Carver on Bills of Lading: G. Treitel and F.M.B. Reynolds, Carver on Bills of Lading, 3rd edn (Sweet & Maxwell, 2012)

Cashmore: C. Cashmore, Parties to a Contract of Carriage: or, Who can Sue on a Contract of Carriage of Goods? (LLP, 1990)

Cheshire, North and Fawcett: J.J. Fawcett and J.M. Carruthers (Consulting Ed. P.M. North), Cheshire, North and Fawcett Private International Law, 14th edn (OUP, 2008)

CIFFA: Canadian International Freight Forwarders Association

CIT: International Rail Transport Committee

Clarke, CMR: M.A. Clarke, International Carriage of Goods by Road: CMR, 5th edn (Informa, 2009)

Clarke & Yates: M.A. Clarke and D. Yates, Contracts of Carriage by Land and Air, 2nd edn (Informa, 2008)

Combiconbill: BIMCO Combined Transport Bill of Lading (1971, revised 1995)

Combidoc: BIMCO Combined Transport Document (1977)

Conlinebill: BIMCO Liner Bill of Lading (1978 and 2000)

Contracts: D. Yates (Ed.), Contracts for the Carriage of Goods by Land, Sea and Air (LLP, from 1993, looseleaf)

CMI: Comité Maritime International

CMNI: Budapest Convention on the Contract for the Carriage of Goods by Inland Waterway 2000

Crossley Vaines: E.L.G. Tyler and N.E. Palmer (eds), Crossley Vaines on Personal Property, 5th edn (LexisNexis Butterworths, 1973)

COGSA: Carriage of Goods by Sea Act 1936 (USA)

COTIF: Convention concerning International Carriage by Rail (COTIF) 1980, as amended by the Protocol of Vilnius 1999

CMR: Convention on the Contract for the International Carriage of Goods by Road 1956

CTD: Combined Transport Document

CTO: Combined Transport Operator

DAMCO STC: DAMCO Standard Trading Conditions (2012)

DAMCO BL: DAMCO Combined Transport Bill of Lading

DB Schenker Rail (UK) GCOC: DB Schenker Rail (UK) General Conditions of Carriage (2009)

DB Schenker AG: DB Schenker Rail Deutschland AG Provisions for International Carriage by Rail (2007)

DB Schenker ALB: General Terms and Conditions (ALB) of DB Schenker Rail Deutschland AG (2012)

Debattista: C. Debattista, Bills of lading in Export Trade (Tottel, 2009)

De Wit: R. De Wit, Multimodal Transport (LLP, 1995)

DHL Express (UK) Ltd STC: DHL Express (UK) Ltd—UK Pallet Network, Standard Terms and Conditions (2008)

Diamond: A. Diamond, The 1980 UN Convention on Multimodal Transport: Legal Aspects of the Convention (LLP, 1981)

Diamond RR: A. Diamond, "The Rotterdam Rules" [2009] LMCLQ 445

Dicey, Morris and Collins: L. Collins et al. (Eds) Conflicts of Law, 14th edn (Sweet & Maxwell, 2006)

DOT Study: Cargo Liability Study, US Department of Transportation (1975)

Eftestøl-Wilhelmsson: E. Eftestøl-Wilhelmsson, "The Rotterdam Rules in a multimdodal context" (2010) 16 JIML 274

ETL: European Transport Law (Antwerp)

Evergreen bill of lading: Evergreen Line Bill of Lading Terms and Conditions (2012)

Example Contract: A. Slater, Example Contract for Third-Party Freight Forwarding Sevices (Added Value Logistics Publications Ltd, 2004)

FBL: FIATA Combined Transport Bill of Lading (1987) and Multimodal Transport Bill of Lading (1992)

FCR: FIATA Forwarders Certificate of Receipt

FCT: FIATA Forwarders Certificate of Transport

Fenex Conditions: General Conditions of the Netherlands Association for Forwarding and Logistics 2004

FIATA: International Association of Freight Forwarders Association

FIATA BL: FIATA bill of lading (see FBL)

FIATA Model Rules: FIATA Model Rules for Freight Forwarding Services (1996)

Fridman: G.H.L. Fridman, Law of Agency, 7th edn (LexisNexis Butterworths, 1996)

Freightliner Conditions: Freightliner Standard Conditions of Carriage (2011)

Gaskell et al.: N. Gaskell, R. Asariotis and Y. Baatz, Bill of Lading: Law and Contracts (LLP, 2000)

General Conditions: see BRB Conditions

Geologistics GTC: Geologistics General Trading Conditions (1992)

Giemulla/Schmid: E. Giemulla and R. Schmid (eds), Warsaw Convention (Kluwer, from 1992, looseleaf)

Glass and Cashmore: D.A. Glass and C. Cashmore, Introduction to the Law of Carriage of Goods (Sweet & Maxwell, 1989)

Graham and Hughes: M.G. Graham and D.O. Hughes, Containerisation in the Eighties (LLP, 1985)

Grammenos: The Handbook of Maritime Economics and Business, Costas Th. Grammenos (ed.), 2nd edn (Informa, 2010)

Gronsfors: "Container Bills of Lading—A New Trend in Documentation", in Law and International Trade—Festschrift für Clive Schmitthoff (Chronicle, 1974)

GTC-CIM: General Terms and Conditions of Carriage for International Freight Traffic by Rail

HAFFA: Hong Kong Association of Freight Forwarding and Logistics

Hague Rules: International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading 1924

Hague-Visby Rules: The Hague Rules as amended by the Brussels Protocol of 1968

Hamburg Rules: The United Nations Convention on the Carriage of Goods by Sea of 1978

Harrington: S. Harrington, "Legal Problems arising from Containerization and Intermodal Transport" (1982) 17 ETL 3

Hayuth: Y. Hayuth, Intermodality: Concept and Practice (LLP, 1987)

Hill: D.J. Hill, Freight Forwarders (Stevens, 1972)

Hill and Messent: A. D. Messent and D. A. Glass, Hill & Messent: CMR: Contracts for the International Carriage of Goods by Road, 3rd edn (Informa, 2000)

Hoeks: M. Hoeks, Multimodal Transport Law: The Law Applicable to the Multimodal Contract for the Carriage of Goods (Kluwer, 2010)

Holloway: I.C. Holloway, "Troubled Waters: The Liability of a Freight Forwarder as a Principal Under Anglo-Canadian Law" 17 JMLC 243 (1986)

House BL: House Bill of Lading

ICC: International Chamber of Commerce

ICC Rules: Uniform Rules For a Combined Transport Document, Brochure No. 298 (1975)

ISO: International Organisation for Standardisation

ICF Conditions: Intercontainer-Interfrigo General Conditions Applicable to Combined Transport (2000)

Jacobs: E. Jacobs, Effective Exclusion Clauses (Fourmat, 1990)

Jané and de Ochoa: J. Jané and A. de Ochoa, The Handbook of Logistics Contracts (Palgrave Macmillan, 2006)

Johnson and Garnett: K.M. Johnson and H.C. Garnett, The Economics of Containerisation (Allen & Unwin, 1971)

Kahn-Freund: O. Kahn-Freund, The Law of Carriage by Inland Transport, 4th edn (Stevens, 1965)

Kimball: G Kimball, Outsourcing Agreements: A Practical Guide (2010)

Kindred and Brooks: Hugh M. Kindred and Mary R. Brooks, Multimodal Transport Rules (1997)

Kiantou-Pampouki: Aliki Kiantou-Pampouki (Ed.), Multimodal Transport Carrier Liability and Issues related to the Bills of Lading (2000)

Lewis: A. Lewis, Outsourcing Contracts: A Practical Guide (3rd edn, 2009)

Maersk Terms and Conditions: Maersk Line Multimodal Transport Bill of Lading, Terms and Conditions of Carriage

Mahoney: Mahoney, Intermodal Freight Transportation (1985)

Mitchelhill: Alan Mitchelhill, Bills of Lading Law and Practice, 2nd edn (Chapman & Hall, 1990)

MMTC: United Nations Convention on International Multimodal Transport of Goods 1980

Modern Liner Contracts: Modern Liner Contracts, A Special Report (Lloyd's of London Press, 1984)

Montreal Convention: Convention for the Unification of Certain Rules for International Carriage by Air 1999

MSC STC: Mediterranean Shipping Company Bill of Lading, Standard Terms and Conditions of the Contract of Carriage (1996–2012)

MTD: Multimodal Transport Document

MTO: Multimodal Transport Operator

MULTIDOC 95: BIMCO Multimodal Transport Bill of Lading (1995)

NSAB: General Conditions of the Nordic Association of Freight Forwarders (2000)

NSFCC: North Sea Freight Conditions of Carriage (2011)

NSSCC: North Sea Standard Conditions of Carriage (2001)

NVOCC: Non-vessel-operating common carrier

OOCL Logistics BTC: OOCL Logistics Group of Companies Business Terms and Conditions (1998–2012)

Palmer: N.E. Palmer et al., Bailment, 3rd edn (Sweet & Maxwell, 2009)

P&O Ferries Freight Terms: P&O Ferries Freight, Terms and Conditions of Carriage (2009)

P&O Ferrymasters GTC: P&O Ferrymasters General terms and Conditions (2011)
P&O Nedlloyd Bill of Lading: P&O Nedlloyd Bill of Lading (2000)
P&O Nedlloyd STC: P&O Nedlloyd Standard Trading Conditions (1997)
Rail Link Europe GC: Rail Link Europe General Conditions
Ramberg: J. Ramberg, "The Vanishing Bill of Lading and the 'Hamburg Rules Carrier'" 27 AJCL 391 (1979)
Ramberg, The Law of Freight Forwarding: J. Ramberg, The Law of Freight Forwarding and The 1992 FIATA Multimodal Transport Bill of Lading (1993)
RHA Conditions: Conditions of Carriage of the Road Haulage Association Ltd (2009)
Richardson: J.W. Richardson, Combined Transport Documents (Informa, 2000)
Ridley: B. Harris, Ridley's Law of the Carriage of Goods by Land, Sea and Air (Sweet & Maxwell, 2010)
RfD Conditions: Railfreight Distribution Standard Conditions of Carriage for International Transport (1992)
Rotterdam Rules: United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea 2008
RRAPA: Y. Baatz et al., The Rotterdam Rules: A Practical Annotation (Informa, 2009)
Schmitthoff: L. D'Arcy, C. Murray and B. Cleave, Schmitthoff's Export Trade, 11th edn (Sweet & Maxwell, 2007)
Schmitthoff and Goode: C.M. Schmitthoff and R.M Goode, International Carriage of Goods: Some Legal Problems and Possible Solutions, Vol. 1, (Kluwer, 1988)
Scrutton: Eder, Foxton, Berry, Smith and Bennett, Scrutton on Charterparties and Bills of Lading, 22nd edn (Sweet & Maxwell, 2011)
Selvig: E. Selvig, "Through-Carriage On-Carriage of Goods by Sea" 27 AJCL 369 (1979)
Shachar: Y. Shachar, "The Container Bill of Lading as a Receipt" 10 JMLC 39 (1978)
Shawcross & Beaumont: P. Martin et al., Shawcross & Beaumont Air Law, 4th edn (Butterworths, 1983)
Slater, How to prepare: A. Slater, How to prepare an example contract for third-party logistics services, 2nd edn (Added Value Logistics Publications, 1998)
Sorkin: S. Sorkin, Goods in Transit (Bender, from 1976, looseleaf)
Southampton Seminar: Multimodal Transport, The 1980 UN Convention (Papers of a one-day seminar held at Southampton University, 12 September 1980)
TCM: Draft Convention on the Combined Transport of Goods (Transports Combiné de Marchandises, 1970)
Tetley: W. Tetley, Marine Cargo Claims, 4th edn (Carswell, 2008)
Thomas: R Thomas, A New Convention for the Carriage of Goods by Sea—the Rotterdam Rules: An Analysis of the UN Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (Lawtext, 2009)
Thomas RR: R Thomas, The Carriage of Goods by Sea under the Rotterdam Rules (Informa, 2010)

Theunis: Jan Theunis (ed.), International Carriage of Goods by Road (CMR) (LLP, 1987)

Treitel: E. Peel, Treitel: The Law of Contract, 13th edn (Sweet & Maxwell, 2011)

TT CLUB: Through Transport Mutual Assurance Association Ltd

TT CLUB 100: TT CLUB Bill of Lading Conditions, Series 100

TT CLUB 400: TT CLUB Forwarder Trading Conditions, Series 400

TT CLUB 600: TT CLUB Logistics Conditions, Series 600

TT Talk: TT CLUB electronic newsletter UCTA: Unfair Contract Terms Act 1977

UIC: International Union of Railways

UIRR Conditions: General Conditions for International Road-Rail Transport of the International Road-Rail Federation (1998)

UKWA Conditions: United Kingdom Warehousing Association Conditions 2002

UKWA Logistics Conditions: UKWA Contract Conditions for Logistics 2006

ULR: Uniform Law Review

Ulfbeck: V. Ulfbeck, "Contracts of logistics under the Rotterdam Rules" (2011) 17 JIML 210

UNCTAD: United Nations Conference on Trade and Development

UNCTAD/ICC Rules: Unctad/ICC Rules for Multimodal Transport Documents, Publication No. 481 (1992)

URCIM: Uniform Rules Concerning the Contract of International Carriage of Goods by Rail, Appendix B to the COTIF Convention

UTI: Intermodal Transport Unit

Understanding the Freight Business: BIFA publication, 5th edn (K. Willmott, 2001) Warsaw Convention: Convention for the Unification of Certain Rules Relating to International Carriage by Air 1929

Yates and Hawkins: D. Yates and A.J. Hawkins, Standard Business Contracts (Sweet & Maxwell, 1986)

CHAPTER 1 INTRODUCTION AND OVERVIEW

1A INTRODUCTION

In very general terms combined or multimodal transport means the linking of two 1.1 or more transport modes under a contractual arrangement which either envisages or permits such a link.¹ Whereas it is possible to focus on the law of an individual mode and to treat links with another mode as incidental, this book puts such links at the forefront of the discussion. In the past the linking of modes in order to provide a through service for customers not wishing to create the link themselves might commonly require the services of an agent such as a shipping or forwarding agent. Alternatively, modal carriers or their agents might sometimes be prepared to take on such a role. Less usually, and commonly linked to the needs of a specific trade, a dedicated service might link modes often on the basis of a joint operation between operators of different modes. Since the Second World War, transport services were transformed by the development of unit load devices to ease the handling of goods and facilitate transfer between modes, most notably the development of the maritime container.² This development, in particular, enabled the link between sea and land modes of carriage to be made with ease and facilitated the ability of various kinds of operators to market through transport services. Forwarders and sea carriers were naturally at the forefront of this development. Furthermore, the more recent interest in expanding into the provision of wider-based logistics services has particularly involved both of these types of participants and has in turn been facilitated by developments associated with the container revolution.

Taking this development as its primary theme, forms of contract which provide 1.2 the basis for modern through transport services and terms adopted in them lie at the

^1. In 1995 the UNCTAD Secretariat defined multimodal transport broadly as ''the movement of goods from one country to another by at least two different modes of transport performed under one contract'', Facing The Challenge of Integrated Transport Services, 28 April 1995, UNCTAD/SDD/MT/7. Whereas the emphasis in this book is on the contractual rather than the mere physical linkage of transport modes, it is not confined to a link based on a single contract in the sense of a contract providing for a through liability. A contract which provides for the linking of modes by combining contracts, which is typical of arrangements made by freight forwarders, is naturally included. Further, whilst there is an emphasis on contracts which are likely to involve a cross-frontier movement, the book includes contracts designed for or used in the context of purely domestic transport.

^2. The container revolution is said to date from 1956 when Sea-Land, which was originally a road haulier, started its containership service between New York and Puerto Rico, see Johnson and Garnett, The Economics of Containerisation (1971), p. 12. The movement of Sea-Land into the transatlantic trade was a major spur to the involvement of other operators. 1969 has been seen as the true start of the ''Container Age'': Jane's Freight Containers, 1969–70.

core of this book. Since forwarding contracts are often a crucial part of the context of these services and because the use of unit load devices has been crucial to their development it seems natural to expand into those areas in order to fill in the wider context. Further, since terms adopted in some forms are derived from attempts by international bodies to provide solutions to certain difficulties associated with them, the terms adopted in these efforts are also examined.

1.3 In later chapters detailed consideration will be given first to conditions used in respect of forwarding and logistics services taking account of both the terms and forms of document in use. The trading conditions adopted by the British International Freight Association (BIFA) are completely reviewed in Chapter 2 but within that review the legal difficulties produced by the involvement of forwarders in more integrated services and the movement towards logistics services are considered. Further, forwarders issuing carriage documentation or making use of documentation issued by a performing carrier have long needed to make reference to their trading conditions either on the carriage document itself or by other means.³ The increasing provision of added value services may also require reference to general trading conditions beyond those focused on the provision of carriage.⁴ The main issues arising from the need to incorporate standard trading conditions and the need to link with carriage documents is considered also in Chapter 2.5
1.4 The primary forms of contract dedicated specifically to the provision of the main forms of combined or multimodal services are considered in detail in Chapter 3. The order of treatment in that chapter will follow the historical development of carriage documentation specifically devoted to integrated services especially arising from the container revolution in the context of liner shipping. Since each development demonstrates commercial and legal possibilities which can still be employed today it is necessary to see them all as having potential relevance. Each development will be placed in its specific context at the appropriate point in Chapter 3 but an overview is given below, as part of this introductory chapter, so that the development can be seen as a whole.
1.5 Finally, contracts or specific contractual terms focused on the use of containers or other unit load devices are examined in detail in Chapter 4. This also provides the opportunity to draw in terms used in other forms of combined transport.
1.6 In general, the discussion will revolve around forms and conditions which are issued either by British operators or are likely to be relevant to traders operating from the UK. Reference may, however, be made to terms and conditions used in other parts of the world by way of contrast, illustration or as part of overall context. Similarly, whilst the discussion will be largely from the perspective of English law, the nature of the subject inevitably requires reference to legal materials drawn from other jurisdictions. The remainder of this chapter is devoted to matters of definition and practice and placing the overall development into its commercial and legal context.

^3. Similarly, liner operators operating in a conference have needed to make reference to wider conditions contained in their tariff, see 4.92.

^4. Richardson, p. 293.

^5. See 2B.

1B TERMINOLOGY AND PRACTICE

1B.1 DEFINITIONS

It is common to see references to combined, multimodal or intermodal transport. 1.7 These are sometimes said to be interchangeable terms referring to the carriage of goods involving more than one mode of transport.⁶ From the paragraphs above one can also see a reference to the term ''through transport'' which can also be applied in this context. The confusion in terminology derives in part from the need to cover different ideas as well as variations in commercial or geographical usage. The historical course of international legislative efforts has been a further factor. For example, it was common in the past to make reference to combined transport but the more modern reference is to multimodal transport which reflects the influence of the United Nations Convention on International Multimodal Transport of Goods 1980 (MMTC).7 The older term, however, is still in use, especially in current documentation which has not yet been adapted to the newer usage. It has also been used in respect of certain types of combined transport, particularly in the context of European road/rail transport8 and is commonly used to reflect the idea of use of a unit load system to link modes. A similar range of use applies to the word intermodal.9 The discussion may be helped by keeping in mind the distinctions made in the following paragraphs.

^6. Clarke, ''Multimodal Transport in the New Millennium'', (2002) 1 WMU Journal of Maritime Affairs, p. 71, citing the UNCTAD Review of Maritime Transport 1997 (UNCTAD/RMT (97)/1). 7. See 1.37.

^8. It has been said that for the European railway industry ''combined'' transport refers to bimodal road/rail transport (UNCTAD/SDD/MT/7, above n. 1, para. 64). This usage is reflected in older regulatory instruments, e.g. EC controls in respect of haulage quotas, such as the Council Directive of 17 February 1975, 75/130 EEC. Since the replacement of the ICC Rules for Combined Transport with the UNCTAD/ICC Rules for Multimodal Transport Documents, see 1.38, it is said that this has allowed the European Transport Industry to use the term ''combined'' transport to mean road/rail combinations only (UNCTAD report, above, n. 1, para. 65). More recently, the secretariat for the inland transport committee of the UNECE has defined combined transport as ''intermodal transport where the major part of the European journey is by rail, inland waterways or sea and any initial and/or final legs carried out by road are as short as possible'': Terminology on Combined Transport, TRANS/WP.24/2000/1, 1 February 2000, para. 1.2). Other views are that combined transport refers to conveyance of one transport vehicle on another: see Cuadernos de la Cepal, The International Common-Carrier Transportation Industry and the Competitiveness of the Foreign Trade of the Countries of Latin America, p. 40, who states that intermodal transport is simply a transfer of goods between different modes.

^9. Commonly found in US practice. For the UNECE (see report noted above, fn. 8) intermodal transport is ''The movement of goods in one and the same loading unit or road vehicle, which uses successively two or more modes of transport without handling the goods themselves in changing modes'' (cf Chenal, ''Uniform Rules for a Combined Transport Document in Light of the Proposed Revision of the Hague Rules'' (1978) 20 Arizona Law Review 954, at p. 954, n. 9: ''Inter-modal refers to the use of more than one mode to carry goods''). The report notes that by extension the term ''intermodality'' has been used to refer to transport by the same loading unit or truck in a ''door to door transport chain'' (citing COM(97) 243). Other sources have emphasised the organisation by one carrier of the door to door movement as the salient characteristic of this term: UNCTAD 1995 report, above, fn. 1, para. 66. A later report (Implementation of Multimodal Transport Rules, UNCTAD/SDTE/TLB/2, 25 June 2001) refers to the glossary adopted by the UNECE but notes that these definitions are not applicable in their strictest sense to the legal field. For Hayuth, intermodality is the movement of cargo by at least two different modes of transport under a single rate, through-billing and through liability, p. 15.

1.8 First, the physical combinations that may be possible and produced by loading techniques must be distinguished from the contracts that may be made to utilise them. Reference to an intermodal or combined transport technique may be referring simply to the fact that a container may be carried on a road vehicle and a ship. Within this general distinction further sub-distinctions can be made. A distinction exists between a unit load device which is carried by modes of transport but is not a mode of transport in its own right (e.g. a container) and one that is, but might still be carried by another means. A further sub-distinction arises where one carrier is able to link modes because of ownership of the means of utilising them and where several carriers must be used.
1.9 Secondly, a basic distinction can be drawn relevant to the legal significance attached to contracts made in this context; that is, between contracts which simply link operators of different modes to the customer and those which provide for a through liability notwithstanding that different modes or different carriers may be used to perform the contract. Under the influence of the MMTC the term multimodal transport tends to be used today to express the idea of a carriage of goods from one place to another by at least two modes of transport under a single contract.10 As we have seen, the term combined transport is also used to express this idea. It is at its clearest where mode to mode transport is the method envisaged.11 This is distinguished from liability which is divided between the different carriers, thus producing a segmented rather than a continuous liability attached to a single operator.
1.10 The term ''through transport'' is often used in this context where different modes of transport are connected in this way, but again one must have regard to usage where this term is used merely to reflect the fact that different carriers have been used in a movement, regardless of the contractual basis with the customer.12

1B.2 UNIT LOAD DEVICES

1.11 Through services linking modes and the use of unit load handling of goods are not a modern phenomenon.¹³ The focus of modern times, however, has been on the tremendous increase in combined transport services prompted by the container

^10. Cf Art. 1.1 of the MMTC and Kiantou-Pampouki, ''The General Report'', in Kiantou-Pampouki, pp. 3–66, at p. 6.

^11. Putting aside for the moment whether mode on mode transport, sometimes called ''mixed'' transport, is multimodal transport. See Kiantou-Pampouki, above, fn. 10, at p. 10, and see 3.98.

^12. Because of the documentary history it overlaps with the use of combined or multimodal transport. According to Faber, for lawyers practising in England a combined transport document signifies a through liability whereas a through transport contract signifies that liability is engaged only for the part performed by the carrier contracting with the customer, Multimodal Transport, Avoiding Legal Problems, p. 1, see also Carr, ''The Current State of Multimodal transport Law in the UK'', Kiantou-Pampouki, pp. 205–234, at p. 209. However, the difference can also be a matter of form. This is considered in detail at 3.6. Where the same mode is involved the term overlaps with use of the term ''successive carriage''.

^13. E.g. Beare, ''Liability regimes: where we are, how we got there and where we are going'' [2002] LMCLQ 306 at pp. 310–311, notes that in the heyday of the Hapsburg Empire, Trieste offered an arrangement for a combined tariff to include inland transport and sea freight in order to counter competition from its North Sea rivals, citing Jan Morris, Trieste and the Meaning of Nowhere (Faber, 2001) p. 159.

revolution. The use of containers as a means of interconnection between transport modes does not necessarily require combined transport services but naturally facilitates them. A major stimulus to this revolution was standardisation of containers which provided the basis for the development of specialist ships, port handling equipment, lorries and rail wagons.14

The International Organisation for Standardisation (ISO) adopted a general 1.12 definition of a container which covers a wide range of equipment. A container is defined as an article of transport equipment:

(a) of a permanent character and accordingly strong enough to be suitable for repeated use;
(b) specially designed to facilitate the carriage of goods by one or more modes of transport, without intermediate reloading;
(c) fitted with devices permitting its ready handling, particularly its transfer from one mode of transport to another;
(d) so designed as to be easy to fill and empty;
(e) having an internal volume of one cubic metre or more but excluding vehicles or conventional packing.

This wide definition covers all types of container system. ISO recommendation 1.13 668, however, approved the basic characteristics of the standard freight container most notably the Series 1 type which is in most common use today.15 This has an 8 foot × 8 foot 6 inch end section and is generally 20 or 40 foot long.¹⁶ A 20-foot long container is referred to as a TEU, a 20-foot equivalent unit and is used as a general indicator, for example, of capacity of ships.17 Standard freight containers are the main means of providing links between surface modes of transport.¹⁸ In air transport lighter and often differently configured containers are in use.¹⁹ Consequently, combined transport services involving air will more likely involve linking air and land surface modes of transport. Further differentiation can be made between standard surface freight containers which were specifically designed to link sea carriage with other surface modes, other containers in use in continental trades (in the USA and the continent of Europe), and swap-bodies, all of which (as well as air freight containers) fall within the general definition noted above. Nevertheless the

^14. Johnson and Garnett, op cit., p. 14.

^15. See further Jane's Freight Containers (1986), p. 658.

^16. When introduced in 1964 ISO 668 series 1containers were 8ft × 8ft but were later increased in height to 8ft 6in. By 1990 some 92% of the world's dry container stock consisted of this type of container, UNCTAD Bulletin, No. 14, May–June 1992.

^17. De Wit, para. 1.9. By January 2011 the fleet of containers had reached 29 million TEUs, UNCTAD 2011 Review of Maritime Transport, p. 39.

^18. ISO 668 standard takes into account the requirements of rail, marine and road transport and main national transport regulations. Within the basic framework of the Series 1 containers, including flatracks and open-sided ones, the individual types have been standardised for the carriage of dry, refrigerated, liquid and bulk cargoes: UNCTAD's Review of Developments in Standardization of Containers and Related Activities, TD/B/C.4/329, 31 January 1990.

^19. The marine container has a strong steel frame capable of withstanding stacking up to nine high and is heavy (on average 2.45 tonnes) and its cuboid shape is inhibitive of air transport, see Graham and Hughes, Containerisation in the Eighties, p. 39, who refer to the development of lightweight igloo-type containers for airfreight use, see also Mahoney, Intermodal Freight Transportation, pp. 50–51.

Container Safety Convention 1972,20 which contains a similarly wide definition,21 excludes air containers and swap-bodies, unless the swap-body is carried by or on board a sea-going vessel, and is not mounted on a road vehicle or rail wagon.22

1.14 All of the above are a form of unit load device which enables goods to be transported across modes without the need for intermediate handling of the goods within them. Other forms of unit load systems which enable or can be used to link modes are pallets²³ and road vehicles including trailers and semi-trailers. The latter is termed piggyback transport.²⁴ Another system is the lash barge system which links carriage by inland waterway (the barge as one mode) with ocean carriage (the ship as another mode).²⁵
1.15 In terms of transfer between modes a distinction is made, especially in the context of containers, between lo-lo (lift-on lift-off) and ro-ro (roll-on roll-off). The former refers to the vertical handling process necessary to load containers on to a ship especially the modern cellular containership. The latter refers to the horizontal technique of loading containers on a ship designed to carry trailers, the container moving on the ship either remaining on the trailer used to deliver to the ship or by means of a ship's trailer.²⁶ As noted above, a similar but more conceptual distinction can be made between mode to mode and mode on mode systems of carriage. Mode to mode involves removal of goods from one mode of carriage to another. In respect of the use of a type of unit load device which, in itself, cannot be defined as a mode of transport, this will involve removing the unit from one mode in order to load it on another mode. The movement of a container is typical of this. Freight containers are not generally regarded as modes of transport as such but as means of handling the goods. Mode on mode involves goods remaining present on one mode which is then transported by another mode. Typical of this is the case of a road vehicle being transported on a ro-ro ship. The road vehicle may be regarded as both a unit load

^20. Which lays down, for purposes of safety, a system of approval and obligations as to maintenance etc.

^21. But with a different dimensional requirement to the effect that the area enclosed by the outer bottom corners be either 7 square metres if the container is fitted with top corner fittings or 14 square metres if not.

^22. See Booker, Containers, chs 1 and 2; see also the Freight Containers (Safety Convention) Regulations 1984 (SI 1984/1890) which implements the Convention. Regulation 2 defines a swap-body as ''a container which is specially designed for carriage by road only or by rail and road only and is without stacking capability and top lift facilities''.

^23. As a handling technique the container has its origins within a general move to unitise cargo. Graham and Hughes, p. 17, state that early examples were packaged timber, bundled and looped for lifting, and pallet loads of general cargo. These authors note that ships were improved to handle pallets and that for a time the debate between pallet and container proponents was fierce, but the container proved superior in protection, security and handling characteristics. The two techniques are not infrequently combined.

^24. In the United States the rail regulatory system recognised a piggyback type of service termed TOFC (trailer on flat car). This compared with the similarly recognised COFC (container on flat car) service, see Wood, ''Multimodal Transportation: An American Perspective on Carrier Liability and Bill of Lading'', in Kiantou-Pampouki, pp. 235–268, at p. 241.

^25. See Graham and Hughes, p. 20, Lash was an expensive system and has had only a limited use where a major river system can be exploited (notably Mississippi and Rhine). Similar systems are SEABEE (Sea Barge Carrier) and BACAT (Barge on Catamaran), see 1975 DOT Study p. 5.

^26. Their respective development is described by Graham and Hughes, at p. 19. These authors also note the adaptation of standard multideck cargo liners to accommodate containers (combination carriers) and the carriage of containers on certain bulk carriers (conbulkers).

device and as a mode of transport. This systems distinction can have legal significance, as under the CMR Convention.27

1B.3 PRACTICAL CONTEXT OF OPERATIONS

As stated above, the container revolution prompted an increase in combined 1.16 transport operations. Particularly notable were changes to liner shipping involving deep-sea transport and the service changes prompted by this. Containerisation required specialised berths to handle gearless containerships and the appropriate handling equipment. It has been noted that, in the main, infrastructure has been provided by port authorities and the equipment by terminal operating companies in which container service operators have sometimes invested.28 It has also been said that with the container revolution, the shipowners came ashore and had to consider the inland movement of containers.29 Sometimes the movement was the other way,³⁰ and indeed the very first container operator was a road carrier who went to sea. Operators who wished to take advantage of containers in providing a complete door to door service31 needed to secure road carriage arrangements³² and to engage in activities traditionally the province of forwarders. Furthermore, they saw the possibility of providing for less than container load carriage, and depots were provided near ports or industrial centres variously called Inland Clearance Depots,33 Containerbases or Container Freight Stations.34 The economics of the revolution forced rationalisation of the industry, not least impelling a high degree of concentration through mergers or the creation of subsidiaries dedicated to the provision of container services.³⁵ Today some 20 container liner operators control around 70 per cent of global container sea carriage capacity.36 Rationalisation was also achieved through several forms of cooperation, among operators especially,

^27. See below 1.28.

^28. Graham and Hughes, p. 23. See also, Heaver, below fn. 73, pp. 383–384.

^29. Graham and Hughes, p. 24.

^30. J Ramberg, ''The Implications of New Transport Technologies'', Ocean Transport Documentation and its Simplification, UNCTAD-SIDA, 1980, p. 22.

^31. For Hayuth, p. 51, during the early stages of containerisation the container-vessel operator pursued activity beyond the ports mainly to control inventory, i.e. the containers, but became more motivated to capture market share through vertical integration.

^32. Most usually provided either directly or through long-term arrangements such as via a joint venture or formal supply contract, see e.g. Cel Group Ltd v. Nedlloyd Lines UK Ltd [2003] EWCA Civ 1716, [2004] 1 Lloyd's Rep 381, where the merger of Nedlloyd with the P&O Group in 1996 and consequent use of P&O's own haulage business (P&O Roadways Ltd) had the effect of putting Nedlloyd in breach of their own haulage supply contract.

^33. Alternatively Inland Container Depots, see Hayuth, pp. 107–116.

^34. Graham and Hughes, p. 24. An Inland Clearance Depot (ICD) is a CFS (Container Freight Station) with customs clearance facilities.

^35. See further, Graham and Hughes, p. 25.

^36. UNCTAD Review of Maritime Transport, 2011, p .45.

initially through joint fleet consortia.³⁷ From this arises the current use of crosschartering between liner operators, on the basis of an operating agreement, to provide regular services. These involve cross-charterparties commonly linked to an operating agreement between operators. They operate on the basis of a space or slot charter³⁸ of part of a container ship to other operators in respect of the carriage of containers on that ship, such containers containing the goods of customers of the cross-charterer.³⁹ This arrangement requires the use of complex indemnity clauses in the cross-charterparty. These must also be reflected in the document issued by the cross-charterer to his customer, usually a bill of lading or waybill. Some joint service arrangements, however, may involve each operator marketing a service but by use of a clause which is, in effect, an agency or demise clause, the contract is expressed to be between the owner of the vessel named in the bill of lading (or substitute) and the customer. The use of a demise or agency clause, however, can appear odd and may produce difficulties when a combined transport bill has been issued by the charterer.⁴⁰

1.17 Apart from joint service arrangements, it is not uncommon for operators to market services based on long-term or ad hoc chartering of vessels. On the one hand the charterer may issue bills of lading in such a way as to assume contractual responsibility towards the holder of the bill of lading. This bill of lading is then used to effect delivery. On the other hand the shipowner may retain contractual responsibility for the carriage by sea so far as the charterer's customer is concerned. In this case the charterparty may authorise the charterer to issue bills of lading on behalf of the master or to present bills to the master to sign, such bills of lading evidencing a contract between the customer and the shipowner.41 The charterer may therefore either issue a bill of lading to the customer or a confirmation note which is supplemented by the shipowner's bill of lading if this is required for the purpose of a documentary credit.42 In the former case an agency or demise clause in the bill of lading may well seek to establish a contract between the shipowner and the customer. In the latter case the charterer makes clear in the confirmation note

^37. More recently the movement from consortia towards development of global strategic alliances can be noted, going beyond focus on a particular trade towards a global strategy across trades and including greater levels of cooperation in respect of multimodal operations and logistics services, Dong-Keun Ryoo and Tae-Woo Lee, ''The Roles of Liner Shipping Co-Operation in Business Strategy and the Impact of the Financial Crisis on Korean Liner Shipping Companies'', The Handbook of Maritime Economics and Business (Costas Th. Grammenos, ed., 1st edn, 2002, LLP), p. 346 at p. 357, citing H.A. Thanopoulou, D.K. Ryoo and T.W. Lee, ''Korean Liner Shipping in the Era of Global Alliances'', Journal of Maritime Policy and Management, Vol. 26, No. 3 (1999), 209–229.

^38. Space on a container ship is usually chartered by ''slot,'' each slot representing the space required to accommodate one TEU, see Reilly, ''Identity of the carrier: issues under slot charters'', 25 Tul. Mar. L.J. 505, at p. 506.

^39. See generally Modern Liner Contracts, and J. Richardson, Combined Transport Documents. See further, M.R. Brooks, Sea Change in Liner Shipping (2000). This author, at p. 1, notes the use of the word consortia in the context of European regulation whereas the word alliance incorporates this concept in North American contexts. See further Reilly, previous footnote and C. Hancock, ''Containerisation, slot charters and the law'' in Legal Issues Relating to Time Charterparties, ch. 14.

^40. Richardson, p. 65. See further, 3.31.

^41. E.g. the Boxtime Charterparty provides for this in cl. 13(o). The charterparty also recognises, however, that the charterer may take on the contractual responsibility under the bill of lading and provides protection to the shipowner under cl. 16(a), (b), (c) and (f), see Richardson, pp. 64–67.

^42. J. Ramberg, ''The Vanishing Bill of Lading & The 'Hamburg Rules Carrier''', (1979) 27 AJCL 391, at p. 397.

that his contract is to procure carriage rather than to carry.43 Whilst the arrangements just described involve charter of a whole ship the use of stand-alone slot sale charters can be noted typically standing outside consortium arrangements. BIMCO created SLOTHIRE as a standard format for slot chartering in 199344 and, as with cross-charter arrangements this envisages that the slot charterer takes contractual responsibility towards its customer,45 and provides merely for a receipt to be issued by the owner to the charterer.46 A further arrangement that should be noted is the use of service or cover bills of lading issued where a container is transhipped on to or from a vessel servicing ports which cannot be reached by a large containership.⁴⁷ This may be linked with a feeder slot charterparty to guarantee space.48

The arrangements described above are not necessarily confined to joint arrange- 1.18 ments made by shipowners or to shipowners wishing to supplement their services. Forwarders and other transport operators provide container or combined transport services. Traditionally, forwarders have provided a range of intermediary services for customers and have generally taken advantage of the possibility of profit through the consolidation of goods whenever this has been possible in respect of a particular mode.49 The competitive challenge presented by the movement of shipowners and other operators into their traditional areas of expertise meant that they had to develop similar container-based services. This required investment in or contractual arrangements enabling them to maintain warehousing and distribution facilities.⁵⁰ In trades where a substantial sea leg is involved they may procure the carriage by sea by means of chartering a complete ship or slots on the basis of a slot charter or other space booking arrangement.⁵¹ Additionally or alternatively they may link into the general service provided by a shipowner or other operator. In such cases the forwarder may make use of the ship operator's bill of lading.⁵² Where the forwarder is consolidating goods belonging to several customers into a container, such goods being destined for delivery to a single consignee or several consignees, a ''groupage''

^43. Ibid.

^44. See Richardson, p. 143 et seq.

^45. See Richardson, p. 155. Clause 13(a) requires the charterer to undertake that bills of lading issued by them contain no identity of carrier clause which purport to establish a contractual relationship between the owners and the cargo interests of the charterers. In The Tychy, [1999] 2 Lloyd's Rep 11, Clarke LJ accepted as accurate the following definition of a slot charterer given by Griggs and Williams in Limitation of Liability for Maritime Claims (3rd edn): '' . . . a party who has the right to use a specified part (but not the whole) of the cargo carrying capacity of a vessel on a particular voyage and who often issues his own bills of lading. Such a party is described in common parlance as a 'charterer' ''.

^46. Clause 11(b).

^47. Gaskell et al., para. 1.38, Modern Liner Contracts, p. 77. They may also be termed feeder bills, see e.g. The Pioneer Container [1994] AC 324.

^48. E.g. see Richardson, p. 355.

^49. See generally Hill, and especially ch. 1 for the earlier history.

^50. The larger forwarder would anyhow often combine the functioning of warehousing or wharfinger with that of forwarding, see Hill, p. 216. Further added value activities, such as packing might be undertaken. Such services may well be marketed today as part of a ''logistics'' package, see below.

^51. See e.g. Coli Shipping (UK) Ltd v. Andrea Merzario, [2002] 1 Lloyd's Rep 608, where the forwarder had an annual contract with the shipowner whereby a certain number of slots would be available for carriage on a particular route on vessels owned or operated by the shipowner.

^52. See the use made of shipowner's bills of lading in Coli, above and Cho Yang Shipping Co Ltd v. Coral (UK) Ltd [1997] 2 Lloyd's Rep 641. In these cases the customer is brought into direct relations with the shipowner although the forwarder is not acting as an agent, in the fullest sense, for either the shipowner or the customer, at least in respect of the freight. See further 2.92.

or ocean bill of lading may be obtained from the ship operator. The forwarder consigns the goods to his agent who will deliver the goods to the ultimate consignees or against production of the forwarder's own document.53 Such document may take a bill of lading form such as a ''House'' bill of lading, a traditional type of forwarder's document used in carriage by sea particularly where the forwarder is controlling the movement and delivery of the goods by himself or through agents other than the sea carrier.

1.19 In the US the concept of the non-vessel operating common carrier (NVOCC) emerged in the course of regulatory control. This recognised the involvement of transport intermediaries in providing services beyond agency and document processing, particularly in respect of consolidation of goods and involved recognition of their role, in effect, as an operator in the provision of carriage by sea services.⁵⁴ From this the more general idea of the NVOC can be identified which is commonly used to express the involvement of non shipowning intermediaries in services involving sea carriage where they undertake responsibility as a carrier. References to NVOCC (non-vessel operating common carrier) or NVOC (nonvessel operating carrier) or more recently, NVOMTO (non-vessel operating multimodal transport operator),⁵⁵ arise frequently in the context of combined sea container services. The term is used to cover forwarders and charterers in general.⁵⁶ One might, however, distinguish charterers of whole ships, who can perhaps be regarded as ship operators,⁵⁷ especially where their documentation controls the delivery of the goods by the shipowner.
1.20 The involvement of these various intermediaries requires their roles to be analysed to determine the level of responsibility they undertake and the status of documents they issue. These issues arise quite apart from any further issues stemming from combined transport operations and need earlier clarification. They arise naturally in the context of forwarding contracts and are dealt with in Chapter 2.58 For the moment a range of possibilities can be noted. On the one hand, such intermediaries may take on a purely agency role as in the case of the traditional forwarder. On the other hand, their involvement with transport supply may see them regarded as being a principal to an extent commensurate with full responsibility as a carrier. In between, some shifting between these extremes may be possible.⁵⁹

^53. See Hill, p. 195, and BIFA guide p. 166. See e.g. Sonicare International Ltd v. East Anglia Freight Terminal Ltd [1997] 2 Lloyd's Rep 48.

^54. See Sorkin, para. 1.15(8). See also Hayuth, pp. 126–128. Similar recognition was developed in respect of US regulatory practice in respect of other modes, e.g. the Part IV forwarder (later termed the surface freight forwarder) and the indirect air carrier. See further Sorkin, para. 1.15(2).

^55. See e.g. H.M. Kindred, D. Manara and S.G. Ellis, Freight Forwarders' Legal Liabilities for the Multimodal Movement of Goods, Transport Canada, TUP 1985/86, Transportation Series Report No.17, Canadian Marine Transportation Centre, p. 7.

^56. See e.g. Gaskell et al., para. 1.42.

^57. Thus the significance in references to non-vessel operating common carriers, cf Sorkin, above, fn. 54.

^58. See, 2C.4.

^59. See e.g. Coli and Cho Yang, above, fn. 51. Compare Maersk Air Ltd v. Expeditors International (UK) Ltd [2003] 1 Lloyd's Rep 391 where the forwarder, although associated with a company providing transport service, was itself concerned only in providing a payment and invoicing service within the context of a chain of transport suppliers servicing the ultimate customer's requirements.

The types of arrangement noted above tend to be associated particularly with 1.21 deep-sea container operations. Other types of arrangement can be identified often associated with a particular mode or a particular grouping of modes. For example, in UK short sea movements, forwarders and road carriers are notably engaged in the provision of international road movements including consolidated trailer loads and will (apart from use of the Channel tunnel) make use of ferries as a seabridge. The form of groupage adopted here is often distinguishable from container movements in that goods consigned by several customers may be collected into a road vehicle organised by forwarders or vehicle operators for carriage in that vehicle.60 Forms of consolidation similar to those operated in sea carriage are a common feature of carriage by air. Similar door to door movements, focused on air as the main transport mode, are particularly engaged in by forwarders or consolidators linking into services operated by line haul operators and issuing their own ''house'' or neutral air waybill61 to the customer. Combined air and road or rail services may be provided by an air operator under cover of an air waybill for the whole journey.⁶² Much of the intermodal movement connected with rail tends to focus on container or piggyback services designed to link in with wider services provided by sea carriers, road hauliers or forwarders. Contract forms particularly associated with such services are considered in detail in Chapter 4.⁶³ A particular feature here is the use of ''aggregators'' to supply services to shippers and operators based on the wholesale control of the rail movement. One can note also the existence of ''integrators'' engaged in parcels and express services which make use of owned or chartered aircraft and maintain ground delivery forces.64

Ideally the flexibility provided by containerisation and other unit-load techniques 1.22 should enable two developments in order to take full advantage of it: first, the possibility of separating the operation of transport modes from ownership; secondly, the ability to provide an integrated transport service across modes, which implies at its fullest extent responsibility and liability for the whole movement. Development in both these respects depends upon factors other than facilitation through unit load

^60. See e.g. Texas Instruments Ltd v. Nason (Europe) Ltd [1991] 1 Lloyd's Rep 146.

^61. E.g. the FIATA neutral air waybill based on the standardised neutral air waybill introduced by IATA under IATA Resolution 600a. This can be used by the forwarder either when contracting as carrier or when acting as agent for the carrier.

^62. In The Economic Impact of Carrier Liability on Intermodal Freight Transport, a report produced for the EC by IM Technologies Ltd, europa.eu.int/comm/transport/final\_report.pdf, at p. 8, there is noted the regular practice in intra-European traffic of an air freight carrier substituting truck or rail for air movement (in German: ''ersatzverkehr'') under cover of an air waybill. Such ''substitution'' might be on the basis of a discretion provided by the contract or agreed by the relevant parties, see further Giemulla/ Schmid, paras 18(53) et seq. See further, Quantum Corp Inc v. Plane Trucking Ltd [2002] EWCA Civ 350, [2002] 2 Lloyd's Rep 25, for a case where there was both a house and air carrier's waybill covering a combined carriage by air and road.

^63. Detailed consideration is given to contract terms used by: Freightliners, Intercontainer, and UIRR companies, see Chapter 4. Many other companies providing combined road/rail transport in Europe operate on BIFA Conditions, see the report, above, fn. 62, p. 13.

^64. Companies such as UPS, DHL, TNT and FedEx, see Understanding the Freight Business, p. 46. See also Reynolds-Feighan, ''Air Freight Logistics'', Brewer et al., ch. 28 at pp. 432–433. This type of company is geared to express delivery. A further sub-division can be made between companies providing courier service, express delivery service, and parcel services, see Sage, ''Express Delivery'', Brewer et al., ch. 30, pp. 456–458.

devices, such as regulation of ownership, operation and rationalisation. Historically this has impacted to some degree on contract forms⁶⁵ and may continue to influence contract clauses or provide the underlying reason for a particular type of clause. Furthermore, the emphasis today is on operation rather than ownership of distinct modes of transport as well as on the supply or use of a unit load system. The focus therefore should be on the contractual operation as a whole rather than on the underlying modes utilised. This has yet to be realised completely but the development towards the concept of multimodal transport and its legal underpinnings are part of a continuum towards it. In very general terms operators engaged in the supply of services can range from those who own no modal assets to those who may own all or some of the transport modes involved in a particular movement.66 Because movements may be strongly associated with a particular mode, for example where it is an important wholesale asset and is utilised for the major leg of a movement, the service is likely to be marketed around it and strongly associated with it. Particular trade conditions may involve a strong association with particular modes or combination of them and be marketed on that basis. This has implications for the legal classification and control of contracts, especially those purporting to deal with contracts built around intermodal arrangements.

1.23 Before turning specifically to contracts and the legislative background a further development affecting practice must be noted. Recent focus has been on the marketing of logistics services.⁶⁷ These embrace services connected with the process of planning, implementing and controlling the efficient and cost-effective flow or storage of raw materials, in process-inventory, finished goods and related information from the point of origin to the point of consumption and for the purpose of conforming to customer requirements.68 At its most complete it involves customer outsourcing69 inventory and distribution functions of the business, including related

^65. Particularly in trades connected with US operations, see 3.7. In Europe the ability of members of conferences to integrate inland and terminal activities under one umbrella has been restricted by concern to preserve their antitrust immunity, see ''Maritime Logistics'', Brewer et al., ch. 27 at p. 425. This may well impact on the motivation to offer uniform liability terms.

^66. See De Wit, p. 5, where the author identifies three models of integration: (A) forwarders coming into integration as a newcomer; (B) carriers in one mode extending their operations to provide an integrated supply (either on the basis of ownership or subcontract); (C) forwarders linking the customer to other suppliers of integrated services. The developing role of ports in expanding beyond consolidation into transport and forwarding was noted by Hayuth, p. 68.

^67. For an early perspective see Hayuth, ch. 7.

^68. Canadian Association of Logistics Management. The UNCTAD Report, Facing the Challenge, above, fn. 1, para. 23 notes the move from the organisation of inventory by manufacturers to anticipate customer needs (the speculative approach) to ''inventory postponement'' strategies trading off costs between inventory and transport. For the Institute of Logistics and Transport ''Logistics is the time related positioning of resource or the strategic management of the total supply chain''. For the US Council of Supply Chain Management Professionals ''Logistics is that part of the supply-chain process that plans, implements and controls the efficient, effective forward and reverse flow and storage of goods, services and related information between the point of origin and the point of consumption in order to meet customers' requirements''.

^69. This has been said to be the business practice of a company contracting out in-house services to outside providers normally in respect of non-core functions of the business, Arnold, Outsourcing Contracts, p. 1.This suggests a process of moving from in-house provision to outside providers. A wider definition refers simply to the strategic decision to contract out one or more activities required by the organisation: Browne and Allen, ''Logistics Out-Sourcing'', Brewer et al., ch. 16, p. 253. There can, however, be recognition of core activities which would normally be served in-house (i.e. ''a bundle of

activities of storage,70 transport management and supply and extending possibly to assembly71 and order processing and billing, and perhaps even marketing. The term third party logistics has come to embrace the direct or indirect supply of these services.72 The traditional functions of carriers and forwarders are logistical functions within the overall concept, the essence of the more recent focus being on the development of management (for example, supply chain management) and control systems geared towards efficient product distribution.73 It is common today to refer to ''contract logistics'' which captures the idea of a third party providing the planning, implementation and control of a logistics system under a contract74 tailored to the particular customer.75 Thus a continuum of services is identifiable,⁷⁶

corporate skills that can be put to work in producing different products'' Jan´e and de Ochoa, p. 5) and other activities where a choice can be made for internal or external provision. Typical functions for which an outsourcing choice is likely are IT provision, personnel functions, training, equipment provision and maintenance. In the transport and warehousing context major wholesale and retail companies may outsource former in-house distribution activities previously centred on owned storage and transport facilities.

70. Distribution services are likely to be focused on the supply and activities surrounding the operation of dedicated warehouse facilities, see e.g. the Example Contract for Logistics Services in Slater, How to prepare.
71. A logistics contract may involve a variety of added value activities (Slater, How to Prepare, p. 25) such as packing, labelling and ticketing. A recent trend for port operators such as ABP to become involved in providing services such as bagging, blending, sorting etc is noted in ''Supply chains-Industry Perspective'' 1(4) S&TLI (1999) p. 34.
72. The term Lead Logistics Partner (LLP) has been defined as a third party logistics (3PL) provider of logistics services which controls other outsourced supply-chain elements (see further Jan´e and de Ochoa, p. 18). Fourth party logistics (4PL) involves supply-chain coordination and management by an entity that does not supply (operate) underlying logistical services.
73. ''Supply chain management, according to the IOLT is 'a sequence of events intended to satisfy a customer' and can include procurement, manufacturing, distribution, waste disposal, and associated transport, storage and IT. In other words, a supply chain is what is created in a customer-focused era to satisfy the physical requirements necessary in fulfilling an order. Logistics is the process by which the supply chain is formulated, maintained and continually improved'', Understanding the Freight Business, p. 203. I.e. supply-chain management is the wide framework within which logistics functions, Trevor D Heaver, ''Supply Chain and Logistics Management: Implications for Liner Shipping'', The Handbook of Maritime Economics and Business, above fn. 37, p. 375 at p. 376. The definition of logistics given by the Association of Logistics Management, above fn. 68, is said to recognise the distinction between SCM and logistics, SCM being a wider concept which has been re-conceptualised from integrating logistics across the supply chain to the current understanding of integrating and managing key business processes across the supply chain, Lambert ''The Supply Chain Management and Logistics Controversy'', Brewer et al., ch. 7 at p. 101.
- 74. Logistics World Directory (www.logisticsworld.com).
75. Usually involving a degree of exclusivity, see Kimball pp. 65–66, and reflected in conditions restricting rights of assignment without prior agreement, e.g. TT CLUB, cl. 21, OOCL Logistics Business Terms and Conditions, cl. 8.
76. ''At one end of the continuum a TPL may offer as little as would a traditional freight forwarder acting as an agent of the cargo-owner and contracting for carriage. At the other end, the TPL may provide as much as would a shelf-to-shelf logistical management firm which undertakes whatever services are required of it. A TPL may offer a full range of services but be contracted by different cargo owners for differing services on this continuum'', H.M. Kindred and M.R. Brooks, Multimodal Transport Rules, 1997, pp. 13–14. At p. 14 the authors provide a useful list of typical logistics functions. See also the list in Understanding the Freight Business, p. 203. Browne and Allen, above fn. 69, at p. 257 provide a list which distinguishes classical outsourcing (e.g. transport), advanced services (e.g. assembly/ packaging) and full services (e.g. order processing, invoicing, payments collection).

and to which forwarders and transport operators have naturally turned.⁷⁷ Different service patterns may raise different customer expectations.⁷⁸ The development in turns reflects how containerisation facilitated it by capacitating time sensitive transport services,⁷⁹ and how it is influenced, in part, by similar factors relevant to intermodal integration.⁸⁰ Furthermore, it is impelling similar rationalising liaisons.⁸¹

1.24 This development may well replicate some of the legal issues that have arisen in the past in the movement from traditional forwarding functions into transport operation and further highlight issues already implicit in that movement. Most important will be the classification of role as agent or provider. However, contract logistics will naturally involve a more complex relationship with a mix of different services so that it may be even more appropriate to regard it as a mixed contract from a legal perspective.⁸² Furthermore the collaborative nature of the relationship is closer than a purely transactional one so that it may appear more as a partnership or joint venture: ''prolonged, inter-dependent, and (it is hoped) cooperative and

^77. Freight transport and warehousing services along with documentation services to support the flow of products may be regarded as more traditionally available services. The more recent development involves an expanding range of services such as final assembly of products, inventory management, product and package labelling, tracking and tracing along the supply chain, order planning and processing and reverse logistics (i.e. collection and recovery of end-of life products and used packaging), Browne and Allen, ''Logistics Out-Sourcing'', Brewer, Button and Hensher, Handbook of Logistics and Supply-Chain Management, 2001, ch. 16, pp. 253–268, at pp. 256–257. This couples with the development of logistics management being perceived and audited as an integrated function adding value rather than functioning as individuated units of cost. Recognition of this along with factors contributing to the use of outsourcing has led to the developed market in ''logistics services'', see Heaver, ''Perspectives in Global Performance Issues'', Brewer et al., ch. 2, pp. 11–28 at p. 13.

^78. The UNCTAD secretariat indicate that ambitious logistics companies consider three distinctive sets of customer: (1) those who want traditional transport and distribution services focusing on price and quality; (2) those requiring selected logistics services, such as merge-in-transport or pan European distribution and (3) those looking for supply and chain management services customised to their particular requirements, sometimes covering some of their risks, see Institutional and Technological Changes in Transport/Logistics Field, UNCTAD/SDTE/TIB/3, pp. 4–5. Satisfaction of customer expectations may be built into the contract through provision of performance standards. A feature of larger scale contracts is likely to be provision of agreed performance standards based on agreed measures of performance, see Slater, How to Prepare, p. 27 and p. 37.

^79. Just in time delivery. A means of reducing inventory and one of a number of cost reduction strategies which exemplify the role of logistics in improving supply-chain performance. See Heaver (fn. 73, above at pp. 377–379) who identifies also: low-cost location sourcing, postponement of manufacturing, and supply-chain visibility (e.g. through automatic relay of point of sale information or cargo tracking, both enabled through IT).

^80. Kindred and Brooks, at p. 13, cite D.J. Bowersox, ''The Strategic Benefits of Logistics Alliances'' 90:4 Harvard Business Review (1990), who identified four dominant forces creating an environment where logistic alliances could flourish. The first two are particularly pertinent to intermodal services: (1) deregulation of transport; (2) the explosion of information technology. The remaining two are: (3) the emphasis on leaner organisations and the propensity to seek external expertise; (4) the escalating competitive environment.

^81. E.g. between groups of forwarders, groups of carriers such as Transplace.com (reported in UNCTAD Trade Facilitation and Multimodal Transport Newsletter, No.11 Dec. 2000, p. 15). The evolution of logistics services from different bases is traced by Heaver, ''Evolving Conditions in Supply Chain Management and Logistics,'' in The Handbook of Maritime Economics and Business (Grammenos, 2nd edn, 2010) pp. 462–464.

^82. V. Ulfbeck, ''Contracts of logistics under the Rotterdam Rules'' (2011) 17 JIML 210.

mutually beneficial.''83 Building on the collaborative nature of such agreements is a movement towards ''vested outsourcing.''84 This seeks to reconcile the conflicting interests of the customer to reduce costs and the supplier to increase the size of the contract by emphasising the mutually beneficial collaborative structure to provide outcomes beneficial to both parties. It advocates a less transaction based approach to the contract focusing more on outcomes rather than activities. To a large extent this should be what a contract of this type should be aiming for. The contract should provide an appropriate division of risks and balance of penalties and incentives.85 As a warning against an over regulated contract, it is salutary, but if a corollary is a reliance on goodwill rather than a robust contractual framework this could leave a hostage to fortune should the relationship break down.⁸⁶ Since many of the more complex contracts will be bespoke and available only to the immediate parties and their lawyers there is only limited public access to standard contract provision although several texts contain suggested terms.87 The logistics agreement provided in TT CLUB 600 for members of the club may well prove to be highly influential. There are publicly available a large number of standard conditions for logistics but these relate to more standardised services which do not necessarily require the same complex provision as the more extensive arrangements that major distribution outsourcing may require.

A further practical distinction which has already been noted in the earlier 1.25 developments surrounding containerisation⁸⁸ is between asset based and non asset based providers.⁸⁹ This may have some impact on how contractual arrangements with the customer are perceived. Further, companies with an asset based starting point may provoke concern in the customer about neutrality. This concern has led some shipping companies to constitute logistics as an independent business unit separate from their shipping and intermodal business.⁹⁰ Despite this, concerns about potential conflict of interest might continue to arise.91

Some aspects of the more complex and long-term contracts involving logistics 1.26 outsourcing will fall outside the scope of this book, such as property and

^83. G. Kimball, Outsourcing Agreements A Practical Guide (OUP, 2010) p. 2 (said in respect of outsourcing generally).

^84. K. Vitasek, M. Ledyard and K.B. Manrodt, Vested Outsourcing: Five Rules that will Transform Outsourcing (Palgrave Macmillan, 2010).

^85. Kimball, above, fn. 83, pp. 8–9.

^86. S. de Silva speaking at a CILT Outsourcing and Procurement Forum event, 17 March 2011.

^87. Kimball, above, fn. 83, Lewis, below fn. 92, Slater, above, fn. 78, Jan´e and de Ochoa.

^88. See 1.18.

^89. E.g. Geologistics eschewed conventional asset ownership, their main capital investment involved IT systems, 1(4) S&TLI (1999) p. 34. Other companies started from an asset base. Heaver notes the American example of Ryder System Inc, ''which has incorporated additional information technologies and logistics management skills in its fleet management expertise to become a major logistics provider'' ''Perspectives on Global Performance Issues'', Brewer et al., ch. 2, p. 13. See also Brooks and Fraser, ''Maritime Logistics'', Brewer et al., ch. 27, p. 423 who note the modest growth of businesses related to marine carriers.

^90. Heaver, above, fn. 73, at p. 385.

^91. Brooks and Fraser, above fn. 89, p. 425. P&O Nedlloyd Logistics e.g. gave some recognition of this in that their website indicated that their supply-chain solutions were provided using managed subcontractors, including ocean carriers other than P&O Nedlloyd.

employment issues arising from the transfer of assets and personnel.⁹² Another example is the need to make more detailed provision for variations in or termination of the relationship.93 Some issues inherent in forwarding, however, may be enhanced in the context of a more complex and symbiotic relationship and are relevant in the context of a discussion of forwarding and transport. Since the supplier may well take on extensive responsibility for both the preparation of goods and their transport there is a greater blurring of the demarcation of the roles of shipper and carrier. This has implications for the application of compulsory carriage regimes so that the liability of the supplier is properly engaged notwithstanding that the act causing loss normally falls within the shipper's responsibility.⁹⁴ A further example is that since a logistics operator is likely to have access to information regarding matters such as the customer's volume of sale and the identity of suppliers it will be important to seek to clarify the extent of a duty of confidentiality.⁹⁵ A common feature of such contracts is the inclusion of performance targets which expressly impose specific requirements as, for example, the time by which goods are to be collected or delivered.96 The monitoring of performance levels over a range of movements obviously introduces a degree of complexity to the more standard issues of liability for loss, damage or delay which would be relevant to a single movement. In that regard also, the existence of an ''umbrella contract'' may well raise problems of conflict and interpretation whenever separate contractual documentation is issued for each movement.⁹⁷ Where compulsory regimes of liability are potentially applicable to a particular movement of goods their precise application in the context of such umbrella contracts may also be a matter of some difficulty.98

1C THE DEVELOPMENT OF FORMS OF CONTRACT

1.27 By the early 1970s it was possible to see the development of modern forms of combined/multimodal transport documents in light of three stages originally identified by Gronsfors.⁹⁹ Most of this development will be described in terms of bills of lading. Despite the flexibility of the maritime container this is natural given that shipowners and ship operators still dominate the supply of present day

^92. E.g. those raised by Transfer of Undertakings (Protection of Employment) Regulations. These are beyond the scope of this book but see further e.g. Slater, How to prepare, p. 15, A. Lewis, Outsourcing Contracts—A Practical Guide (City & Financial Publishing, 3rd edn, 2009). See also Arnold, above, chs. 3 and 5.

^93. See Slater, How to prepare, p. 14 and cl. 4 of the Example Contract.

^94. Ulfbeck, above fn. 82, at pp. 221–225.

^95. See 2.98. See cl. 12.1 of Example Contract for an example of an express term imposing a duty not to disclose confidential information. See also TT CLUB 600, cl. 22.

^96. E.g. cl. 5.6 of Example Contract. See also Slater, How to prepare, pp. 37–38.

^97. See e.g. Rhˆone Poulenc Rorer Ltd v. Trans Global Group Ltd, QBD, 18 June 1997, unreported, see

^2.11. 98. See e.g. in the context of the CMR Convention, Gefco UK Ltd v. Mason [1998] 2 Lloyd's Rep 585. See 2.25.

^99. K. Gronfors, ''Container Bills of Lading—A New Trend in Documentation'', in Law and International Trade—Festschrift f¨ur Clive Schmitthoff (1974); see also ''Container Bills of lading and Multimodal Transport Documents'', in Ocean Transportation.

container services. Naturally, therefore, the documentary development has tended to involve mainly adaptation of, or evolution from, traditional shipping documents. As will appear below the modern form of bill of lading used in container trades will offer a choice of terms depending upon whether combined transport is provided or simply a service confined to carriage by sea. Furthermore, international trade and documentary credit arrangements have traditionally revolved around the legal recognition given to the bill of lading as a transferable document.100 Newer forms of document have needed to keep close to the model of the traditional bill so as to encourage recognition. This links also with the emphasis placed on the bill of lading by the Hague Rules.101 These points may explain why so much documentation issued by forwarders, who were also in the forefront of developing through transport services, tended to take on a bill of lading form as a means of enabling their documentation to fit in with the traditional uses of such documentation in the shipping context.102 Even with newer forms of documents seeking to move away from the traditional bill of lading, such as waybills, there seems to have been a shipping culture which distinguishes their form and the way they are used from documents used in a non-shipping context, such as road and rail consignment notes.103 Similarly, recent efforts to create electronic transport documents still seem to reflect a divide between those focused on replicating documents with a bias towards sea and those linked mainly to other transport modes.104 New developments¹⁰⁵ could point the way to a transformation in both paper and electronic documents but there is some way to go before these become fully operational. Consequently the description is conducted mainly in terms of describing the development of bills of lading but other document forms can also be related to it.

1C.1 THE EARLY STAGES

The first stage involved the adaptation of traditional shipping documents to take 1.28 account of supplemental modes, i.e. the adaptation of conventional or through bills of lading to take account both of containers and supplemental transport requirements. Particular legal difficulties arose from the fact that such bills commonly involved a segmented rather than an integrated liability especially when an agency

^100. See especially the developments in respect of the Uniform Customs and Practice on Documentary Credits at 3.44.

^101. See 2C.4.4.

^102. See the FBL, below.

^103. See generally ''The Use of Transport Documents in International Trade'' UNCTAD, 26 November 2003 (UNCTAD/SDTE/TLB/2003/3).

^104. Commercial e-document developments in international shipping, such as those initiated by Bolero and @GlobalTrade, still refer mainly to bills of lading and waybills. See further, for developments in respect of waybills and paperless documentation, Ramberg, ''The Multimodal Transport Document'', and Gronsfors, ''The Paperless Transfer of Transport Information and Legal Functions'', in Schmitthoff and Goode, pp. 1 and 19; Williams, ''Waybills and Short Form Documents: A Lawyer's View'' [1979] LMCLQ 297; Tetley, ch. 45; Debattista, ch. 2; see further G. Humphreys and A. Higgs, ''Waybills: A Case of Common Law Laissez Faire in European Commerce'' [1992] JBL 453.

^105. Notably the Rotterdam Rules, see 1.40.

role was adopted by an operator seeking to provide the relevant through link. Although through liability is currently the norm in respect of through container transport these problems still have relevance today to operations involving forwarders and in both containerised and non-containerised transport where operators may only be prepared to provide a through link on an agency basis.106 The section on Through Bills of Lading¹⁰⁷ takes the opportunity to explore these problems in their different contexts.

1.29 The next stage saw the appearance of ''first generation'' container bills, whereby modal operators focused on extending into an integrated liability for the through movement and to address problems perceived as arising from this. First, liability was extended to cover both transport stages and periods incidental to the transport stage such as intermediate warehousing. Secondly, liability was managed to make use of any possible freedom of contract especially to align the contracting operator's liability with those of subcontractors.108 In addition, some opportunity to manage the potential application of mandatory rules might be taken to a greater or lesser extent. Individual transport modes are subject to a range of rules which may have mandatory operation. This can depend upon which national law applies to the contract and whether the transport takes place as a domestic operation or operates over international boundaries. There exists some degree of uncertainty as to how far such rules will apply in the context of a contract which extends liability beyond a particular mode. Nevertheless, where international carriage is involved there is, at least, the possibility that one or more international conventions may apply to a transport utilising different modes.¹⁰⁹ Particular note should be taken of: for carriage by sea the potential application of the Hague Rules 1924, the Hague-Visby Rules 1968,¹¹⁰ or the Hamburg Rules 1978; for carriage by air, the Warsaw regimes¹¹¹ or the Montreal Convention 1999;112 for carriage by road, CMR;¹¹³ for rail the URCIM114 and for inland waterways CMNI 2001.115 Apart from impacting

^106. See e.g. Coli, above fn. 51.

^107. See, 3.B.

^108. See the contract clause quoted by Gronsfors, above, fn. 99, at p. 35. A similar clause is reproduced in Schmitthoff's Export Trade (D'Arcy et al., 2000), p. 367, taken from a bill of lading used by EUCON of Dublin, Rotterdam and other centres.

^109. See generally, De Wit, ch. 2, Bugden, chs 16 and 17.

^110. See the Carriage of Goods by Sea Act 1971. See further Scrutton, Carver, Carver on Bills of Lading.

^111. Consisting of the original Warsaw Convention, the Convention as amended by the Hague Protocol and the Convention as amended by Montreal Protocol No.4. See the Carriage by Air Act 1961. See also the Carriage by Air (Supplementary Provisions) Act 1962. See further Shawcross & Beaumont, Giemulla/Schmid, Clarke, Contracts of Carriage by Air (Informa, 2nd edn, 2010), Clarke & Yates, Part 3.

^112. In force in the UK from 28 June 2004. See Schedule 1B of the Carriage by Air Act 1961.

^113. See The Carriage of Goods by Road Act 1965. See Clarke, Hill and Messent, Clarke & Yates, Part 1. CMR and CIM are regional regimes focused essentially on European operations. Other regionally based regimes exist e.g. The Montevideo Treaty on International Land Carriage 1940, applied in MERCOSUR Member States, see Fresnedo de Aguirre, ''Unifying the Law of Carriage of Goods: a View from MERCOSUR'' 2003–1/2 ULR 241.

^114. Appendix B of COTIF 1999, Clarke & Yates, 2.477 et seq.

^115. In force from 1 April 2005.

directly on a particular mode some of these regimes contain rules which either extend the regime to multimodal operations or which relate expressly to them.116

A leading example of a first generation type of bill sought to reduce potential 1.30 issues of conflict by acknowledging the existence of the common international rules and attaching them to the relevant stages of the transport.¹¹⁷ Where subcontractors were used in those parts of an operation that were potentially outside the scope of such rules it referred to the conditions utilised by its subcontractors. In essence a network form of liability was adopted which influenced developments in the next stage.

Such bills also sought to deal with the problem of unlocalised damage. The 1.31 carriage of goods in containers can raise particular problems of proof as to whether the loss or damage occurred while the goods are the responsibility of the carrier. There is also the particular difficulty of identifying the stage at which damage occurred where the container travels across modes. Where there is segmented liability across operators it will normally be necessary to identify the operator responsible for the loss, damage or delay so that the appropriate legal regime is attached whether this is mandatory, based on implied rules of national law or regulated by contract.¹¹⁸ Where an integrated liability is adopted the focus may turn to identifying the appropriate legal rule applicable. Where the loss, damage or delay is localised to a particular stage the contract terms or an applicable mandatory rule may attach a particular liability to that stage. If this stage cannot be identified then some rule must be employed to determine liability and these bills sought to manage this through the contract.¹¹⁹

1C.2 SECOND GENERATION BILLS AND TCM

The third stage saw the ''second generation'' of container bills, based on the TCM 1.32 Draft Convention 1971. This represented the culmination of a process which can be traced back as far as 1911 so far as interest in the development of rules for through transport is concerned.¹²⁰ The draft ultimately produced represented an evolution

^116. Article 2 of CMR, Art. 1(4) of URCIM, Art. 1(6) of Hamburg Rules, Arts 18(3) and 31 of the Warsaw Convention, and Arts 18(4) and 38 of the Montreal Convention.

^117. See cl. 3 of the ACL bill reproduced by Gronfors, fn. 99, at pp. 35–36. Compare the Hapag Lloyd conditions of carriage and the bill of lading discussed in Princess Buitoni v. Hapag-Lloyd [1991] 2 Lloyd's Rep 383, discussed at 369.

^118. See the material at 3B.7, which is directed to issues of proof of this nature.

^119. E.g. the ACL bill (see above fn. 117), in such circumstances, deemed the damage or loss to have occurred during the sea voyage and applied the Hague Rules.

^120. De Wit, para. 2.172, noting that the Comit´e Maritime International (CMI) devoted some attention to through carriage at its Paris and Copenhagen conferences in 1911 and 1913. A detailed review of the development of TCM and the later development up to and including the Multimodal Transport Convention is provided by this author, paras 2.172 –2.195. See also Beare, ''Liability regimes: where we are, how we got there and where we are going'' [2002] LMCLQ 306, pp. 310–313.

of work emanating mainly from two bodies. The first was the Comit´e Maritime International (CMI) which operated from a maritime perspective and whose final draft put stress on the establishment of a document similar to the bill of lading, possessing all its characteristics and in particular its negotiability.¹²¹ The second was the work of the Institute for the Unification of Private Law (Unidroit) which produced a draft in 1961, was inspired by CMR and focused on the establishment of a liability system.122 The Unidroit draft brought forth the notion of a combined transport document and worked out a system of liability based on the network approach. It also provided rules for unlocalised damage which were not associated with a particular mode and a system of rules for claims and limitation which likewise would operate without regard to the particular modes. The final product was a modified draft, produced in the course of joint ECE/IMCO meetings based on a merger of the previous work known as the Rome draft.123

1.33 In summary, the draft TCM convention¹²⁴ sought to harmonise contract terms so that operators from different modal starting points could compete on the same level of terms. This gave credence to the notion of the Combined Transport Operator (CTO) and was the beginning of a move to develop the concept of an integrated contract service dissociated from any particular mode. With this development came also the first effort to provide a uniform definition of combined transport and to provide for combined transport documents, in negotiable or non-negotiable form rather than bills of lading. It also provided that by issuance of a combined transport document the CTO undertakes to perform, or in his own name procure the performance of, the entire transport giving distinct recognition to the non-owning or operating contractor. It can also be noted here that it envisaged voluntary adoption by the parties rather than mandatory application.¹²⁵ For various reasons formal adoption of the draft never occurred.¹²⁶ First there was air industry opposition. The negative view of the airlines had already wrought one concession since Article 1 of the final draft excluded pick-up, delivery and transhipment

^121. De Wit, para. 2.185. The reference is to the Tokyo Rules accepted by CMI in 1969 (see (1969) 1(1) JMLC 186). Several drafts had been considered in CMI prior to this. A notable feature of the Tokyo Rules was that they permitted the carrier to incorporate an international convention concerning carriage of goods by sea where loss or damage occurred at sea and where no mandatory rules would otherwise apply, see Art. VIII (2), i.e. the Hague Rules. This would be in preference to a uniform regime otherwise applicable in cases where there was no mandatory law. The uniform regime (essentially based on reasonable diligence) applied to unlocalised loss or damage.

^122. De Wit, para. 2.185. Note also the involvement of important bodies representing commercial interests such as the ICC see 3.41.

^123. For the Rome draft TCM see (1970) 1(4) JMLC 651.

^124. See UN Doc. TRANS/370, CTCIII/1, Annex 1, see also Unification of International Law Yearbook 1970–71, pp. 63–83.

^125. Seen as a weakness by De Wit, para. 2.190. More recently, and given the subsequent difficulties of introducing mandatory rules in this area, the suggestion has again been made for a non-mandatory regime, but this time operating on a default basis, see Asariotis et al., Intermodal transportation and carrier liability, European Communities, 1999, paras 18–20. This links with EU developments considered further below at 1.41.

^126. See Massey, ''Prospects For A New Intermodal Regime'' (1972) 3(4) JMLC 725, De Wit, paras 2.190–2.192. See further, 3.93.

operations carried out in the performance of an air transport contract. Also a desire for further study was expressed by the United States and there were concerns of developing countries which were not well represented at IMCO.127 As a result the initiative passed to UNCTAD and the process of creating an international convention began afresh.128

Part of the debate around this time included concerns about the merits of a 1.34 network system. This emerged particularly towards the end of the TCM and had already been manifested in the final draft itself. The lead provisions provided for a network liability system for localised loss or damage.129 These directed the parties to mandatory rules applicable to the particular stage or to an expressly incorporated international convention appropriate to that stage or to default liability rules applicable where damage was unlocalised or, if localised, no mandatory rule or convention was applicable to the stage where loss or damage occurred. The default liability rules were essentially based on fault liability by reference to certain defences but without reference to certain special defences available in some modal transport uniform laws which reduced further a carrier's potential liability.130 However, an alternative provision was included in the final draft.131 This alternative provided for a uniform system of liability,¹³² as well as for a stricter liability than that proposed by the base rule in TCM for unlocalised loss or where no mandatory rule applied.¹³³ The twin issues of whether the system should be network or uniform or some modified system¹³⁴ and the level of liability to be imprinted on a base or uniform liability rule are among the core issues around which debate has raged in the efforts

^127. The concerns of the developing countries were focused more on economics, most notably, the fear of domination by large container consortia controlled by developed countries, rather than the specific terms of TCM, see Selvig, ''The Backround to the Convention'', para. 8, Southampton Seminar.

^128. An International Preparatory Group (IPG) was set up to prepare the new draft, see 3.93.

^129. The issue of liability for delay was a matter of some difficulty and was not clearly resolved in TCM. The approach of later initiatives has varied and will not be considered in this overview but as they arise in the detailed discussion in Chapter 3. Note also that the developments described here also sought to provide detailed rules regarding the transport document and in respect of claims and actions, particularly provision of a uniform time limit. These will be considered at relevant points in the more detailed discussion in Chapter 3.

^130. Such as the defence of negligent navigation and management in Art. IV, r. 2(a) of the Hague and Hague-Visby Rules in respect of carriage of goods by sea. See also in respect of fire caused otherwise than by the carrier's actual fault or privity (Art. IV, r. 2(b). Cf, in relation to carriage by air, the negligent pilotage defence in Art. 20(2) of the Original Warsaw Convention.

^131. Proposed by Australia, Canada, Norway and Sweden, see Massey, above, fn. 126, p. 745.

^132. Apart from retaining navigation and fire defences for carriage by sea, cf the UNCTAD/ICC Rules, 3.

^133. A further alternative proposed by France was for a network approach but with a strict liability at base, Massey, above, fn. 126, p. 746.

^134. De Wit, paras 2.143 –2.169, discusses three different types of system in the abstract—pure network, modified network and uniform and analyses their respective merits. In the context of container transport the adoption of a pure network system is impractical given the problem of unlocalised damage so that some modification is required. A reference to a modified network system therefore can refer to the type of system adopted under TCM. This must be distinguished from the different kind of system of the type adopted by the MMTC 1980 which involves a uniform system of liability with a limited network system in respect of limitation of liability, arguably a ''modified uniform'' system.

to create an acceptable uniform law in this area.¹³⁵ In brief,¹³⁶ a network system has the advantage of reducing the potential for conflict with mandatory regimes, applying rules appropriate to the particular mode of transport where loss or damage occurred, and keeping the carrier's liability in line with its recourse position. Particular disadvantages are that the potential liability is unpredictable at the outset and the scope for dispute is considerable, both as to the precise stage where loss or damage occurred and to the precise regime of liability to be applied. Further it is not a satisfactory solution to the problem of cumulative damage or delay. A uniform system provides a potentially more certain system, at least for the cargo interest, but only to the extent that potential conflict with mandatory rules can be avoided.

1.35 Despite the lack of formal adoption, the TCM rules provided a basis for commercial efforts to establish trading conditions acceptable to cargo, insurance, banking and carrier interests. The details of this are traced in Chapter 3.137 The most notable development was the creation of the ICC Uniform Rules for a Combined Transport Document 1973 amended in 1975. The ICC Rules are no doubt old, but they still form the basis of many conditions still in use. These rules drew on the solution produced by TCM to provide a scheme of liability which could be adopted commercially and recognised as providing a fair balance between cargo and carrier interests. For example, on the one hand, these rules in general¹³⁸ prevent the CTO from adopting the conditions used by subcontractors which might be highly restrictive on the rights of cargo interests and so, as under TCM, impose a qualification of the network approach to prevent it. On the other hand the default rule provides for a limit of liability based on the weight limit adopted in carriage by sea which compares favourably with convention limits adopted for other modes so far as the carrier is concerned.
1.36 Some standard form documents developed around this time by important commercially representative bodies such as BIMCO139 and FIATA140 were based directly on and made specific reference to these rules. Many shipowners providing deep-sea container transport produced standard terms based largely on these rules and the dynamics of consortia operation meant that common form bills of lading on

^135. Support for a uniform system was propounded at an International Seminar on Intermodal Transport held at the University of Genoa, 23–26 May 1972, see the report by Lord Diplock, ''The Genoa Seminar'' 1972 Il Diritto Marittimo 177. See also Asariotis et al., above, fn. 125, at para. 22. Contrast the view of the UNCTAD secretariat which presented a series of papers to assist the discussion in the process leading to the MMTC, see ''International Multimodal Transport Operations'', 28 August 1974, TD/B/AC.15/7, paras 52–76. It concluded that a lower aggregate cost of insurance protection to cargo would result from a network liability system combined with an adequate (not strict) level of liability, see para. 74.

^136. See further the review in the more recent report of the UNCTAD Secretariat, Multimodal Transport The Feasibility of an International Legal Instrument, 13 January 2003, UNCTAD/SDTE/TLB/ 2003/1, esp. paras 44–53.

^137. See 3C.

^138. Apart from in respect of inland waterways, see 3.66.

^139. Historically considered as a shipowners' organisation but, increasingly, adopting standard forms after consultation with other interests or bodies, Gaskell, et al., para. 1.74. BIMCO documents include Combiconbill and Combidoc, see 3.43.

^140. See 2.1. The FIATA FBL first created in 1970 was among the first ''official'' forms of combined transport bill.

the same terms would be adopted by several operators.¹⁴¹ These have continued to operate on similar provisions up to the present day. For example, terms and conditions currently adopted in the Maersk Line Multimodal Transport Bill of Lading largely adopt the same basic scheme of liability with relatively few changes over the years mainly to assist clarification and to take account of important developments in respect of the calculation of limits of liability.142 The reference to documents termed bills of lading is of interest since this appears to run contrary to the attempt by TCM and the ICC Rules to achieve recognition of combined transport documents. This was adopted by some documents¹⁴³ at the time but most documents continued to be titled as bills of lading albeit for combined transport or for use either for port to port or combined transport services. Further details concerning forms will be outlined below but it can be noted here that, as with the scheme of liability, the form of combined transport bill of lading developed around this time is still in common use today.

1C.3 MMTC AND LATER DEVELOPMENTS

The documentary development has not stood still and some further developments 1.37 have been influenced by continued efforts to establish acceptable international rules. As noted above, after the failure of TCM, the initiative passed to UNCTAD especially with a view to responding to the concerns of developing countries. A major part of the background at that time was the reforming efforts being undertaken in shipping law at around the same time. Bills of lading had already been subject to effort to create a uniform law through the original Hague Rules. A protocol to these rules established the Hague-Visby Rules in 1968 enacted in the UK by the Carriage of Goods by Sea Act 1971. A further protocol changed the basis of calculating limits of liability. The Hague and Hague-Visby Rules had been developed through the CMI and the latter rules represented clarification rather than radical changes to the earlier rules. The UN initially through UNCTAD and later through UNCITRAL considered more radical proposals inspired by the concerns of developing countries to establish a more equitable balance between cargo and carrier interests. The ultimate result was the Hamburg Rules 1978 which came into force in 1992 but has not been adopted by the UK. The result today is a degree of fragmentation among the uniform rules adopted internationally for this mode of transport and to which further efforts are being addressed.¹⁴⁴ The work of UNCTAD was naturally influenced by these developments and the Multimodal Transport Convention ultimately produced in 1980 reflected this influence. It has been said that the IPG¹⁴⁵ considered the problems of multimodal transport from the

^141. Modern Liner Contracts, pp. 14–15.

^142. Frequent references will be made to this document as it provides a leading example of the type. Naturally such bills need to deal with wider matters than the basic scheme of liability and differences in the various versions of this and the predecessor documents issued by P&O Nedlloyd will be drawn out as appropriate.

^143. E.g. Combidoc—although even this document contains spaces to indicate ports of loading or discharge.

^144. See below, 1.40.

^145. See above, fn. 128.

point of view of shipping and that the Convention must be read with this in mind.146 Nevertheless, it can be borne in mind that the liability provisions in the Hamburg Rules are closer to other conventions than the Hague or Hague Visby Rules.

1.38 From MMTC the notion of multimodal transport and multimodal transport operator has passed into general parlance as a substitute for those of combined transport and combined transport operator. The details of and further background to the Convention are discussed in Chapter 3.147 In outline the liability system adopted by it reflected the working out of a compromise between the network and uniform approaches. Arguably MMTC adopts a modified uniform system.¹⁴⁸ A uniform liability is imposed regardless of the stage at which loss, damage or delay occurred provided that the occurrence causing the loss, damage or delay took place whilst the goods were in the charge of the MTO.149 The level of liability imposed by this rule is based on Article 5 of the Hamburg Rules which essentially imposes fault liability with a reversed burden of proof. A default provision for limitation of liability applies different limits depending upon whether, according to the contract, carriage by sea or inland waterways is included.150 This enables some account to be taken of the different level and operation of the limit of liability in sea carriage as opposed to other modes. A limited network provision allows for higher limits adopted by applicable international conventions or mandatory national law to be applied where loss or damage can be localised. In some respects the substantive scope of the convention is more complete than the earlier attempt made in the TCM since it includes provisions concerning arbitration and jurisdiction. It also sought to resolve potential conflicts with the operation of other conventions which were perceived to exist. As with TCM much concern was expressed by the air industry about the impact of the convention on established liability conditions.151 A limited concession was the exclusion of pick-up and delivery services although this is expressed in terms wider than a connection with air transport.¹⁵²

1.39 The convention failed to obtain international acceptance and has not been adopted.¹⁵³ There was no commercial acceptance of the scheme of liability adopted by it as a uniform law solution. An effort to deal with commercial objections to the scheme came with the UNCTAD/ICC Rules.154 These rules sought to achieve greater reconciliation with the Hague Rules so as to be more acceptable to shipping interests. Apart from a uniform liability rule imposing liability for fault it maintains the availability of the distinctive sea carriage defences of negligent navigation or management and fire without the actual fault or privity of the carrier.¹⁵⁵ As with MMTC, the rules for limitation of liability recognise a split between contracts

^146. Selvig, in Seminar Papers, para. 10.

^147. See 3D.

^148. See fn. 134.

^149. Article 16, see 3.106.

^150. Article 18(1) and (3), see 3.106.

^151. See De Wit, para. 2.218.

^152. See Art. 1 and 3.

^153. See the various explanations offered in the report of the UNCTAD secretariat, above fn. 136, at paras 22–26.

^154. Discussed in detail at 3E.

^155. Rules 5.1 and 5.4, see 3.128.

including carriage by sea and inland waterways and other modes but adopts the Hague-Visby Rules limit for the former.156 A network provision applies the limits of liability adopted by applicable international conventions and mandatory national laws.157 The rules recognise, however, that as purely contractual provisions they may be displaced by mandatory law and so take account of this in Article 13.158 Some commercial recognition to the Rules has been given by FIATA and BIMCO. A revised version of the FBL¹⁵⁹ in 1992 was issued subject to these rules. Similarly BIMCO Multidoc 1995 is expressly subject to them.¹⁶⁰ Apart from these there appears to have been no wholesale commercial adoption of them. The combined effort of the Convention and the Rules has, however, had some influence on some of the regional and national efforts to provide rules for multimodal transport.¹⁶¹ The various efforts, however, display a variety of approaches, further clouding a clear way to a uniform solution.

The search therefore continues for an internationally acceptable solution whether 1.40 based on a mandatory uniform law or model law.¹⁶² More recently, however, a development from a different starting point could have considerable impact on the future of contracts for multimodal transport. This is the United Nations Convention on Contracts for the Carriage of Goods Wholly or Partly by Sea 2009 (The Rotterdam Rules) the culmination of work undertaken by UNCITRAL.163 Starting in 1996, the initial focus was on carriage by sea and the need to fill in gaps left by current national and international rules. The work of the Commission linked with work also being undertaken by CMI and culminated in a preliminary draft instrument on the carriage of goods by sea on which further work was conducted by a working group established by UNCITRAL. Ultimately a ''maritime plus'' regime has been created. Whilst there must always be an element of international sea carriage within the scope of application of the new rules, and which will be regulated

^156. Rules 6.1 and 6.3, see 3.132.

^157. Rule 6.4, see 3.132.

^158. See further 3.120.

^159. See above fn. 140.

^160. Waybill versions are also available.

^161. National examples include the Indian Multimodal Transportation of Goods Act 1993 (see 3.120, and Bhatia Shipping & Agencies PVT Ltd v. Alcobex Metals Ltd [2004] EWHC 2323 (Comm), [2005] 2 Lloyd's Rep 336) and the Dutch Civil Code (Book 8, 8:40–8:52 and German Commercial Code (s452–452d). Regional examples are the Decision 331 of 4 March 1993 (as modified by Decision 393 of 9 July 1996) of the Andean Community and the ASEAN Framework Agreement on Multimodal Transport. For a review see the report of the UNCTAD Secretariat, Implementation of Multimodal Transport Rules, 25 June 2001, UNCTAD/SDTE/TLB/2.

^162. See the report of the UNCTAD Secretariat, above fn. 136, based on a questionnaire issued to Governments and industry as well as to interested intergovernmental and non-governmental organisations and a number of experts on the subject. The report displays the variety of opinion on different features of and approaches to a possible uniform law. Majority opinion favours a mandatory regime with an overall fault-based uniform system with modified network in respect of limits of liability, see paras 57, 61, 64, 79.

^163. See Thomas, Thomas RR, RRAPA. See further M.F. Sturley, T. Fujita & G.J. van der Ziel, Rotterdam Rules: The UN Convention on Contracts for the Carriage of Goods Wholly or Partly by Sea (Sweet & Maxwell, 2010), M.D. G¨uner-Ozbek, ¨ The United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea: An Appraisal of the ''Rotterdam Rules'' (Springer, 2011), A. Von Ziegler, J. Schelin and S. Zunarelli, The Rotterdam Rules 2008: Commentary to the United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (Kluwer Law International, 2010).

by it, it will also regulate contracts of carriage to the extent that they extend beyond the sea.¹⁶⁴ Since such carriage would inevitably be multimodal, consideration has been given to how the Convention should co-exist with modal rules, the decision being taken to confine any such consideration to mandatory international modal regimes of carriage. This development is considered in detail in Chapter 3 although it can be noted here that at the time of writing this Convention has not yet come into force.¹⁶⁵

1.41 Apart from what is anticipated as a global development, the European Union is giving consideration to the development of a regional legal instrument specifically for multimodal transport with a view to reducing barriers to choosing multimodal transport.¹⁶⁶ Early work focused on the idea of a distinct regime for multimodal transport based on a uniform regime and overriding if required compulsory modal regimes such as CMR.167 More recently attention has focused on a proposal for a mandatory uniform liability system but with an opt-out in respect of liability limits.168

1C.4 THE DEVELOPMENT AND CURRENT FORMS

1.42 Although there has been a progressive development of forms it should be remembered that it may not be possible to exclude the possibility that an older type of form may yet form the basis of litigation. With some forms the changes indicated above may be reflected only in the terminology adopted by the operator rather than in the scheme of liability adopted in the form. Some bills of lading, for example, may pronounce themselves to be combined transport bills but accept only a segmented responsibility. Similarly, some bills of lading now adopt the multimodal transport terminology but still employ essentially a first generation scheme of integrated liability.¹⁶⁹ Others retain the second generation scheme whilst moving to the newer terminology.170 Furthermore, the different stages of development are sometimes reflected on the face of documents as well as their terms. The earlier type of through bill of lading would indicate the stages of transport on it supplemental to a carriage by sea. Today the prevalence of container transport will require some reference to them to appear even on a standard bill of lading or other transport document. Most

^164. The so called ''door to door'' scope of application.

^165. So far only two states have adopted the Convention out of the 20 required.

^166. See E. Eftestøl-Wilhelmsson ''The Rotterdam Rules in a multimdodal context'' (2010) 16 JIML 274.

^167. M.A. Clarke, R. Herber, F. Lorenzon and J. Ramberg, ''Integrated Services in the Intermodal Chain (ISIC) Final Report Task B: Intermodal Liability and Documentation'' (Southampton, 28 October 2005).

^{168. &#}x27;'Study on the details and added value of establishing a (optional) single transport (electronic) document for all carriage of goods, irrespective of mode, as well as a standard liability clause (voluntary liability) regime, with regard to their ability to facilitate multimodal freight transport'' (published June 2009) ec.europa.eu/transport/strategies/studies/doc/2009\_05\_19\_multimodal\_transport\_report.pdf, see E. Eftestøl-Wilhelmsson, above, fn. 166, p. 279. For further discussion of possible solutions to the multimodal muddle see Hoeks, ch. 11 and B. Marten, ''Multimodal Transport Reform in the European Union: A Minimalist Approach'' (2012) XLVII ETL 129.

^169. E.g. The Hapag-Lloyd Bill of Lading for Multimodal Transport or Port to Port Shipment.

^170. E.g. the Maersk Line Multimodal Transport Bill of Lading.

bills of lading can be used to provide for through carriage which includes transport by a different mode. Older bill of lading forms commonly contained spaces to indicate pre-carriage or on-carriage into which the carrier or mode could be specified.¹⁷¹ Second stage combined transport bills became more open about the stages of transport and indicate a place of receipt and a place of delivery. Some forms are specifically designed to be used for combined/multimodal transport. It is common, however, for a bill of lading to indicate that it can be used either for port to port carriage or for combined carriage. Filling in the place of receipt or delivery will convert it to a combined bill.172 For port to port carriage only the places of loading and discharge of the ship will be indicated. Even with documents entitled combined or multimodal transport document there may be space for indicating the port of loading and discharge.¹⁷³

The modern combined/multimodal transport bill is meant to serve integrated 1.43 ''conveyor belt'' movement so that it does not need to be aligned to a particular ship or voyage. Early forms of combined bill would indicate the ''intended voyage'' or ''intended port of loading''. Today the boxes on the face of bills tend to omit the word ''intended''. Even if the intended port of loading is indicated the bill will contain a wide liberty clause giving the carrier freedom of route and means of conveyance. Further aspects of commercial practice relevant to container bills involve distinctions to be drawn between full container load movements (FCL) or a part container load (LCL) where a groupage arrangement is involved. Combined with references to house, door, depot and port, an individual service selection can be made by the customer.174 Bills of lading issued by forwarders will reflect similar patterns. As noted earlier a container bill of lading issued by a shipping line will, however, often refer to and incorporate the carrier's tariff which will reflect agreements made within the shipping line's conference or consortia.

In trades where sea transport is not contemplated, contract forms may take a 1.44 pattern more closely aligned to transport documents linked to other modes. Even where a sea leg is anticipated or possible the contract may be evidenced by a consignment note as in the case of the TNT Ipec Consignment Note.175 Although the thrust of the TCM Draft Convention and the Multimodal Transport Convention 1980 has been to seek to move transport documentation away from the traditional distinction between bills of lading and other documents towards a distinction between negotiable and non-negotiable combined/multimodal transport documents, the development towards this has been slow. As noted earlier the main thrust in the development is strongly related to shipping and a shipping culture

^171. See e.g. Conlinebill 2000.

^172. See Mitchelhill, ch. 5 and App. H. The NCFCC 2008 use the term gate to gate in contrast to port to port (see cl. 1). The former phrase includes incidental terminal handling in the port of loading and/ or port of discharge. See also 3.52.

^173. See Combidoc above, fn. 139, and FBL.

^174. House-to-house and door-to-door indicates a movement commencing and terminating at traders' premises. Depot and port (or pier, commonly in US practice, see Sorkin, Goods in Transit, para. 2.25(5)) will indicate a movement commencing or finishing at a CFS or port terminal. Combination indicates the precise service selection e.g. LCL Door/LCL Depot: carrier collects from shipper and moves to depot for groupage and delivers to importing depot at destination, see Understanding the Freight Business, p. 48.

^175. See Branch, p. 180.

which still tends to think in terms of bills of lading and waybills and was formed against a background of the traditional use of bills of lading and the potential application of the Hague Rules. Consignment notes and waybills such as the air waybill have not tended to take on a negotiable form and have needed to be aligned to the requirements of conventions governing non sea modes of transport.176 Depending, however, on the success of the Rotterdam Rules, there may yet be the development of a basic distinction between negotiable and non-negotiable transport documents (paper and electronic) applicable both to contracts of carriage of goods by sea and to multimodal contracts where they involve an element of sea carriage.¹⁷⁷

^176. E.g. the CMR Convention invests a limited control function in the use of the document in a way that is not reproduced in respect of waybills used where carriage by sea forms a substantial element. Cf Art. 12 of the CMR Convention with Art. 6 of the CMI Uniform Rules for Sea Waybills. See further D. Glass and R. Nair, ''Towards Flexible carriage documents? Reducing the need for modally distinct documents in international goods transport'', (2009) 15 JIML 37, European Commission (2006) ''ELDOC: legal study on legal and administrative practices regarding the validity and mutual recognition of electronic documents, with a view to identifying the existing legal barriers for enterprises'', D3.6 final report, prepared for EC DG Enterprise and Industry, November 2006.

^177. For further discussion of general developments including in respect of electronic documentation see: M. Goldby, ''The performance of the bill of lading's functions under UNCITRAL's draft convention on the carriage of goods'' (2007) 13 JIML 160 and ''Electronic alternatives to transport documents: a framework for future development?'', Thomas, ch. 9, N. Gaskell, ''Bills of lading in an electronic age'' [2010] LMCLQ 233, A. Møllmann, ''From bills of lading to transport documents—the role of transport documents under the Rotterdam Rules'' (2011) 17 JIML 50. See also for industry perspectives, D.A. Glass, P.B. Marlow, R. Nair, ''The use and legal effects of carriage documents in international multimodal transport'', (2010) 2(4) Int. Journal of Shipping and Transport Logistics 347.

CHAPTER 2 FREIGHT FORWARDING CONDITIONS

2A INTRODUCTION

Virtually all major freight forwarders in the UK are trading members of BIFA. 2.1 ¹ Registered Trading Members of BIFA agree to use the Standard Trading Conditions, employ a minimum number of professional members, maintain liability insurance and abide by the Association's Code of Conduct. Probationary membership is available for companies new to the industry. Ordinary Trading Membership is available for companies unable to comply with all the conditions, in particular those wishing to use their own trading conditions. Such proprietary conditions, which seem to be less common in the UK today, may well reflect the influence of current or previous BIFA Conditions or even the older IFF editions of 1984 and 1981.2 Other companies, not primarily engaged in forwarding, may in fact utilise BIFA Conditions or incorporate forwarding activities into their general conditions. A further possibility is to use standard conditions drafted by bodies closely involved in claims such as the TT CLUB.³ Some companies marketing logistics services advertise their membership of BIFA and appear to apply the conditions to them. Others adopt their own conditions in respect of such services. Some companies may contract on BIFA conditions but add supplemental terms,4 for example dealing with the loading and unloading of transport units,⁵ cancellation provisions, demurrage terms etc. It has also been common for logistics services providers to base their terms on Road Haulage Association (RHA) conditions and those provided by the United Kingdom Warehousing Association (UKWA).⁶ The use of dedicated terms

^1. The British International Freight Association. Prior to 1989 known as the Institute of Freight Forwarders.

^2. See e.g. AAI Forwarding Ltd Terms and Conditions (www.aai-intl.co.uk/companies/terms\_ aaifwd.html).

^3. TT CLUB 400 is provided for members requiring freight forwarding terms and TT CLUB 600 is for use by members requiring a full set of logistics conditions.

^4. E.g. P&O Ferrymasters GTC 2011 (www.poferrymasters.com/general-conditions-2011-BIFA conditions-2005A.pdf), See 2.9 below, Ital Logistics Terms and Conditions (www.ital-logistics.com/ resources/downloads/Terms & Conditions\_ITAL Logistics\_June 2012.pdf).

^5. E.g. cl. 7 of P&O Ferrymasters GTC.

^6. Slater, How to Prepare, p. 1. UKWA conditions consist currently of the 2002 Conditions of Contract and the 2006 Conditions for Logistics. Cf also the terms used in Holland by Fenex for value-added logistics (1995) which are linked particularly to activity at a logistics centre. An impression of the variety of terms used by various logistics providers which may be more or less influenced by UK associations' terms can be found by consulting terms used by e.g. DAMCO: (www.damco.com/~/media/Files/ Download Centre/Handling Documents/Damco STCs 2009.ashx), OOCL Logistics: (www.oocllogis

is more likely the closer and more complex the relationship between customer and service provider,⁷ especially where contract logistics involving the outsourcing of a company's logistics requirements are involved. Associations of freight forwarders occur in other countries and, along with BIFA, are members of FIATA.8 This body provides Model Rules for Freight Forwarding Services9 and some associations make clear that their conditions give the customer at least the degree of protection stipulated by these Rules.10 Some national associations have begun to make specific reference to logistics services in their conditions11 or to provide separate conditions in respect of them.12 Discussion of the roles adopted by freight forwarders and logistics operators and connected issues concerning their definition and their legal status is made below as they arise in the context of specific terms.

2.2 The 1989 BIFA Conditions continued the policy adopted by the 1984 IFF Conditions which were drafted with an eye to the Unfair Contract Terms Act 1977.13 They were intended as a more simplified and manageable version of the 1984 edition. The 2000 edition continued this trend which is carried into the current 2005A Conditions.14 A major change in the 1984 edition was the substitution of the restrictive ''omnibus'' exclusion found in previous editions,¹⁵ which based liability only on wilful misconduct, with a general exclusion of liability clause¹⁶ more favourable to the customer. Also, it has been said17 that the drafting of the 1984 Conditions appeared to be with the possibility in mind that a court might be prepared to sever innocent clauses or parts of them from other clauses or

tics.com/businesstermsandconditions/Pages/default.aspx?site=unitedkingdom), DHL Logistics: (www.dhl.co.uk/content/dam/downloads/uk/Logistics/dhl\_pallet\_network\_terms\_and\_conditions.pdf), Supreme Logistics: (www.supremelogistics.co.uk/pdf/Supreme\_Logistics\_Business\_T\_Cs\_2011.pdf), Condor logistics: (www.condorlogistics.co.uk/img/Conditions of carriage and warehousing.pdf), Sbi Logistics: (www.urgent-delivery.com/\_docs/Sbi Logistics Terms of Business.pdf), First GB logistics: (www.firstgblogistics.com/terms.php), Global Logistics: (www.globalistics.com/terms.html), Fresh Logistics: www.freshlogistics.co.uk/termsandconditions.html). An example of a service linked to courier carriers is provided by Rand Logistics: (https://www.randlogistics.com/terms\_and\_conditions).

7. Included may be tailor-made terms dealing with e.g. dedicated storage facilities, vehicle fleet and performance levels, see generally Slater, How to Prepare. Alternatively there may be a tailor-made ''umbrella agreement'' to which general conditions are attached in respect of particular movements, see e.g. Rhˆone Poulenc Rorer Ltd v. Trans Global Group Ltd, below, fn. 48. TT CLUB 600 which is appropriate for contract logistics makes provision for the incorporation of ''Standard Conditions'' of the member such as TT CLUB 400.
8. International Federation of Freight Forwarders Associations. In Europe they may also be members of Clecat (European Association for forwarding, transport, logistic and customs services). As with BIFA national associations may well issue general trading conditions for local use. Countries with a close connection to the UK may well use terms similar to those used by BIFA currently or previously e.g. the Irish International Freight Association (IIFA) still makes use of 1989 conditions which are similar to BIFA 1989. Others may use conditions based on TT CLUB 400.
- 9. See below, 2.7.
- 10. E.g. the General Conditions of the Nordic Association of Freight Forwarders (NSAB) 2000.
11. As in the German Freight Forwarders' Standard Terms and Conditions (ADSp 2003). In Germany the development is now reflected in the name: The Federal Association of German Freight Forwarders and Logistics Operators, similarly in Holland, see fn. 12.
12. The Netherlands Association for Forwarding and Logistics (FENEX) issue general forwarding conditions (2004) and separate terms and conditions for value-added logistics (1995).
- 13. Hereinafter UCTA.
- 14. © BIFA 2009.
- 15. E.g. cl. 18, 1981 Conditions.
- 16. See cl. 36, 1984 Conditions.
- 17. Yates and Hawkins, 2G(9), note 5.

parts which offend UCTA.18 Whilst earlier versions placed a heavy emphasis on a single exclusion the more recent versions are sprinkled with exclusions, limitations and indemnities creating greater opportunity for the wielding of the blue pencil. Nevertheless, there remain general clauses in the more recent conditions¹⁹ and their relationship with other clauses will need careful consideration. Note that the 1981 Conditions also involved a greater degree of complexity than seen in previous versions such as those of 1974 and 1970.

Various documents may be issued by forwarders depending on the particular 2.3 relations that the forwarder has to his customer, the goods and carriers or other parties involved.20 Forwarders are generally intermediaries and normally utilise the documents, such as bills of lading and consignment notes, issued by the carriers involved in the transport. They may on occasion be authorised to issue the document themselves as agent for the carrier. The forwarder may issue a document, for example to a road haulier, to indicate the calling forward of goods from the customer's premises, or to the customer to indicate that the goods have in fact been shipped.²¹ Where the forwarder comes into possession or control of the goods a Forwarder's Certificate of Receipt (FCR) or House Bill of Lading (House BL) may be issued. The FCR is used primarily in continental trade and functions similarly to an international consignment note in that goods are forwarded to a named consignee. Countermanding instructions are possible provided that the original receipt is surrendered. The House BL functions similarly to a traditional bill of lading, with provision for endorsement and requiring its production at destination to the receiving agent of the forwarder. It provides a means of control between agents when the forwarder is utilising a receiving agent to control movement or delivery at destination. An alternative is for the sending forwarder to issue a delivery order to the customer to obtain delivery from the receiving agent.

By issuing a House BL a forwarder is not necessarily contracting to carry the 2.4 goods to which it relates22 but may be contracting simply as agent. This was often the intention behind the use of such a document in earlier forwarding practice. Early forms of the House BL would indicate that the forwarder contracted only as an agent. The criteria used to determine this are discussed below.²³ Early authority established that where the forwarder acted only as an agent the House BL issued by him was not a document of title for the purposes of a CIF contract.²⁴ Nor would it be acceptable for the purposes of a documentary credit.²⁵ It will be useful, however, in ensuring that the forwarder's standard conditions are incorporated so that any responsibility he may have, even as an agent, is covered by them. An alternative to

^18. Discussed below, 2C.2.

^19. See cll. 24–29 of BIFA 2000.

^20. See Understanding the Freight Business, ch. 3

^21. E.g. a forwarder's Certificate of Shipment.

^22. See Gagniere v. The Eastern Co (1920) 7 Ll L Rep 188.

^23. See s. 2C.4.3.

^24. Emilio Clot & Co v. Compagnie Commerciale du Nord SA (1921) 8 Ll L Rep 380.

^25. However, see below, 2.5.

using a House BL is a Forwarder's Certificate of Transport (FCT).26 This has not been usual in British practice.

2.5 A House BL will be acceptable under Article 20 of the Uniform Customs and Practice for Documentary Credits 2007 (UCP 600), where the forwarder is the carrier or is signing for an identified carrier and it is indicated the goods have been shipped on board. Forwarders providing combined transport services may well issue their own form of bill of lading with the intention of accepting responsibility as a carrier or may use a FIATA Bill of Lading (FBL) which by clause 2.1 involves an express assumption of liability in respect of the carriage of the goods. Other forwarder bills of lading may not be so clear and may be intended as multi-purpose documents so that it will depend on factors other than the form itself as to the capacity in which the forwarder is contracting.27
2.6 As a member of FIATA, BIFA is empowered to authorise the use, by its members, of FIATA documents such as the FCR, FCT and FBL.28 Clause 3(C) of the 1984 edition of the conditions expressly permitted the parties to agree that in respect of all or part of their contract for the movement of goods the forwarder would issue a FIATA Combined Transport Bill of Lading29 subject to the current conditions governing this document and giving priority to its terms should they prove inconsistent with IFF Conditions, provided that such document was issued subject to the ICC Uniform Rules for a Combined Transport Document and that this is printed on the document.30 This clause does not appear in the current conditions possibly on the assumption that the issue of an FBL for a particular movement would easily take effect and that any FBL issued by a BIFA member is bound to comply with the stipulations indicated. A benefit of the previous clause, however, was that it continued the effect³¹ of the general conditions in the contract, notwithstanding the issue of an FBL except in so far as there was inconsistency, which would enable the forwarder to rely on the general conditions in respect of matters left open by the FBL.32 The danger of the omission is that a court might ignore the BIFA Conditions and assume that they have been replaced completely by an FBL issued by the forwarder.33
2.7 In addition to the above documentation, FIATA produced in 1996 a set of Model Rules for Freight Forwarding Services. These are designed for use as recommendations to legislative bodies in those countries where there is no national statute on forwarding or for use by ordinary FIATA members and their member freight forwarders where national conditions have not been adopted. FIATA also provides

^26. FIATA have produced standardised FCR and FCT which are issued by freight forwarder members of affiliated associations such as BIFA, see Understanding the Freight Business, p. 83. For further detail on the variety of forwarding documents used in practice, see Jones, FIATA Legal Handbook on Forwarding (2nd edn, 1993).

^27. Such as the form of signature, see 2.77.

^28. The latest version dates from 1992.

^29. In respect of the use of an FBL and other forwarder documents where the forwarder is acting as a combined/multimodal transport operator see further, 2C.4.4 and 3C.

^30. See 3C.2.

^31. Which might not be the case unless the court accepts a variation or considers both sets of conditions to be incorporated by a course of dealing.

^32. Cf TT CLUB 400, cl. 2(b).

^33. On the basis of a variation.

a model for standard national freight forwarders' trading conditions but it has been said that this only sets forth some basic principles.34

General conditions such as those adopted by BIFA may be attached to a variety 2.8 of forms as they are used to cover a variety of services. The front of the forms will provide a box layout for details of parties and goods and may refer to the trading conditions contained on the back. A House BL will indicate conveyance or vessel and will also contain the usual clause as to delivery against the document.

2B INCORPORATION OF GENERAL CONDITIONS

BIFA 2005A (© BIFA 2009), Preliminary clause, P&O Ferrymasters General Terms and 2.9 Conditions 2011, clause 2, DAMCO STC, clause 53

The customer's attention is drawn to specific clauses hereof which exclude or limit the company's liability and those which require the customer to indemnify the company in certain circumstances and those which limit time and those which deal with conditions of issuing effective goods insurance being clauses 8, 10, 11(a) and 11(b), 12–14 inclusive, 18–20 inclusive, and 24–27 inclusive.35

2. APPLICATION

2.1 All and any activities of the Company in the course of business (whether gratuitous or not) are undertaken subject to these Conditions.
2.2 The respective rights and obligations of the parties under these Conditions shall be read and construed as being subject to and governed by the following:
- 2.2.1 the BIFA Conditions except that the definitions above shall be substituted for the definitions in the BIFA Conditions; and
- 2.2.2 in respect of carriage or transportation by sea for which the company issues a House Bill of Lading, the FIATA Conditions and the terms of that House Bill of Lading.36

53. Amendments

The Company may unilaterally amend these Conditions at any time by publishing the amendments on the Company's website. All contracts concluded by the Company and the Customer after such publication shall be subject to the amended Conditions.

The statement in the BIFA preliminary clause above, which appears at the 2.10 beginning of the conditions, draws attention to those conditions most likely to affect the customer, and combined, normally, with a reference to the conditions on the

^34. See Ramberg, The Law of Freight Forwarding, p. 21.

^35. The BIFA House BL would also refer to specific clauses on the front of the form drawing attention, e.g. to clauses dealing with compulsory legislation. It is understood that it is no longer the practice of BIFA to issue these leaving it to the practice of the individual forwarder. Any specific reference on the face of the document may amount to a heightened degree of notice for the purpose of incorporation which is discussed at this point, and for purposes of the reasonableness test under UCTA, which is discussed at 2C.2.2.

^36. As noted at 2.1 above, some companies supplement BIFA conditions with their own terms but provide for the associations' terms to take precedence.

front of forms issued in connection with a service,³⁷ seek to encourage the view that sufficient notice has been given to the customer to enable the conditions to be incorporated. Whilst BIFA 2000 made general reference to such clauses, the level of notice is enhanced further by BIFA 2005A which refers specifically to the number of any such clause. With any contract based on standard terms it is necessary for the party relying on them to demonstrate that they have been incorporated. This can be achieved by either getting the customer to indicate agreement to them by signing a contractual document containing them,38 or by giving sufficient notice of them at the time the contract is made.³⁹ It seems that the question is whether reasonable steps have been taken and that this is a question of fact.40 Consequently, whilst the failure to draw the customer's attention to the terms on the face of a contractual document might not be fatal, especially if they are reproduced on the back, it is certainly advisable.41 Conditions of this type can also be incorporated by a consistent course of dealing.⁴² A clause which is considered to be unusual or onerous will require a greater degree of notice.43 It is not, however, necessary to the

^37. See e.g. the FIATA FCR, and see cl. 1.1 of the FIATA Model Rules, cl. 1.2 of which provides that the Rules supersede any additional terms except in so far as they increase the responsibility of the forwarder.

^38. L'Estrange v. F. Graucob Ltd, [1934] 2 KB 394, see Treitel, p. 238, 7–004 and also Harris v. GWR (1876), cited by Clarke, p. 203. The document must be one that is reasonably expected to contain terms, Grogan v. Robin Meredith Plant Hire, The Times, 20 February 1996, see Treitel, p. 238, 7–004. Cf Toll (FGCT) Pty Ltd v. Alphapharm Pty Ltd (High Court of Australia, 11 November 2004), [2004] HCA 52, 219 CLR 165 (onlinedmc.co.uk).

^39. Parker v. South Eastern Railway (1877) 46 LJKB 768. Whether steps were taken to draw the conditions to the other party may be irrelevant if the evidence shows that that party's frame of mind was that he was prepared to enter into the contract on the basis of the terms and conditions whatever they were, see Beldam LJ, Laceys Footwear (Wholesale) Ltd v. Bowler International Freight Ltd [1997] 2 Lloyd's Rep 369, 378. Here the party knew that there most probably were terms and conditions and that, had he chosen to do so, he could have read them (with some difficulty) but was anyway going to make sure that he was properly insured.

^40. Keeton Sons & Co Ltd v. Carl Prior Ltd [1986] BTLC 30.

^41. Treitel, in the 11th edn, pp. 218–219, indicated that it is not necessary as a matter of law to print words such as ''see back'' on a document, citing Burke v. South Eastern Railway (1879) 5 CPD 1. In this case the court distinguished Henderson v. Stevenson (1875) LR 2 Sc & Div 470, where only the face of the document was considered to have contractual effect but in the context of what the later court considered was a simple bailment of goods. In the current edition it is stated that the absence of the words may make incorporation unlikely (13th edn, at p. 240 and cases cited at n. 35). In Laceys Footwear (Wholesale) Ltd v. Bowler International Freight Ltd, above, fn. 39, a quotation sent after the contract was made failed to refer to the terms reproduced on the back of a covering letter. For the judge at first instance this meant a failure to give reasonable notice but different facts were emphasised by the Court of Appeal.

^42. See e.g. Circle Freight International v. Medeast Gulf Exports [1988] 2 Lloyd's Rep 427, where, after concluding a contract by telephone the forwarder would send an invoice that gave notice that business was conducted on IFF terms available on request. At least 11 invoices were sent within a period of six months up to the making of the relevant contract, cf generally Sterling Hydraulics Ltd v. Dichtomatik Ltd [2006] EWHC 2004 (QB), [2007] 1 Lloyd's Rep 8.

^43. Treitel, p. 240, 7–009. See Thornton v. Shoe Lane Parking Ltd [1971] 2 QB 163 and Interfoto Picture Library Ltd v. Stiletto Visual Programmes Ltd [1989] 1 QB 433. It is said that the rule premises that the term is not only unusual but also onerous, Clarke citing O'Brien v. MGN Ltd [2001] EWCA Civ 1279, [2002] CLC 33. Treitel notes further, at p. 238, 7–004, that it has been suggested that ''in some extreme circumstances even signature might not be enough'', so that a term that was ''particularly onerous or unusual'' would not be incorporated unless, in addition to the signature, steps were taken to draw the attention to the signer to such a term: Ocean Chemical Transport Inc v. Exnor Craggs Ltd [2000] 1 Lloyd's Rep 446 at p. 454. It might be ventured that since the point of a signature is to signify consent at the time the contract is made, signing a document after the contract's conclusion might be regarded as insufficient unless taken as consent to a variation.

incorporation of trading terms into a contract that they should be specifically set out provided that they are conditions in common form or usual terms in the relevant business. It is sufficient if adequate notice is given identifying and relying upon the conditions and that they are available on request.44

The nature of forwarding operations may make it difficult to ensure that notice is 2.11 given at the same time that the customer made the contract, as in the case of a receiving forwarder acting for a consignee on instructions initiated by a sending forwarder.45 It may be easier to establish incorporation when the forwarder is dealing with a commercial customer.⁴⁶ Where, however, two forwarders were operating in different countries to provide mutual correspondent services, it was not sufficient for the defendants, who wished to rely on their (BIFA) standard conditions, to send a fax including the statement ''The only conditions on which we transact business are shown on the back''. It being a fax, nothing was shown on the back. The fact that other documents were sent containing BIFA terms was insufficient given that these documents were concerned with the relationship with the ultimate customer. It was natural for the plaintiffs to assume that the reference to ''transacting business'' was intended to apply to contracts with the customer and not to a long-term cooperation agency relationship under which the plaintiffs were entitled to expect equality and mutuality, not limitation of liability.47 In Rhˆone Poulenc Rorer Ltd v. Trans Global Group Ltd, ⁴⁸ complex issues of incorporation arose out of an umbrella agreement which stated that invoices issued under the agreement would be subject to the agreement and BIFA conditions. Colman J held that all the BIFA conditions were incorporated (subject to a conflicts clause), rejecting an argument that only those conditions which relate to the payment of accounts were incorporated. Had he accepted this view he would have rejected an argument that the whole conditions were incorporated by a course of dealing in respect of the invoices. This was because the express incorporation by the agreement of only a limited part of the BIFA conditions would make incorporation of the whole of the conditions by course of dealing untenable. His view on these points was affirmed by the Court of Appeal.⁴⁹ In Granville Oils & Chemicals Ltd v. Davies Turner & Co Ltd, ⁵⁰ Judge Behrens held that the BIFA 1989 Standard Trading Conditions were

^44. Taylor LJ, in Circle Freight International v. Medeast Gulf Exports, above, fn. 42, at p. 433. Cf Keeton Sons & Co Ltd v. Carl Prior Ltd, above, fn. 40 and Sterling Hydraulics Ltd v. Dichtomatik Ltd [2006] EWHC 2004 (QB), [2007] 1 Lloyd's Rep 8.

^45. Von Traubenburg v. Davies Turner [1951] 2 Lloyd's Rep 462.

^46. As in Circle Freight International v. Medeast Gulf Exports, above, fn. 42. See also Lacey's Footwear (Wholesale) Ltd v. Bowler International Freight Ltd, above fn. 41. In Frans Maas (UK) Ltd v. Samsung Electronics (UK) Ltd [2004] EWHC 1502, [2004] 2 Lloyd's Rep 251, Gross J (at p. 256) indicated that the manifestly uncommercial conclusion that no standard terms applied was not one he would come to unless driven to it.

^47. Poseidon Freight Forwarding Co Ltd v. Davies Turner Southern Ltd [1996] 2 Lloyd's Rep 388 (CA). In contrast with Keeton Sons & Co Ltd v. Carl Prior Ltd, the terms in question were neither identified nor said to be available on request, see Leggatt LJ, at p. 393.

^48. QBD, 18 June 1997, unreported.

^{49. 18} February 1998, unreported.

^50. Leeds District Registry Mercantile Court, 21 October 2002, summarised by David Martin-Clark (www.onlinedmc.co.uk).

incorporated by the reference made to them in quotation telexes sent by the forwarder to the customer.51

2.12 The BIFA Conditions and the former IFF Conditions are not so widely adopted as to make notice of their terms automatic as a result of trade usage and they certainly cannot be incorporated by usage if the forwarder has never used them or brought them to the attention of anyone.⁵² Their effective incorporation may also depend on whether the forwarder has in fact been brought into a direct legal relationship with the customer,53 either as a gratuitous or contractual agent, or as a performer of the service.⁵⁴ In this respect a course of dealing may be established whereby the forwarder is considered to have agreed to accept employment proffered to him by the customer on the terms of the trading conditions until the forwarder gives notice that the relationship is to be brought to an end.55
2.13 The BIFA preliminary clause could be made clearer by indicating that the conditions relate to a variety of services so that individual clauses may not be relevant to the particular service being provided. Clauses appearing in the general terms, however, normally indicate that they apply to a variety of services,⁵⁶ and also apply the conditions to gratuitous services.⁵⁷ Clauses of this type are discussed further below.
2.14 It is common to restrict the authority of an employee from agreeing with the customer any alteration of the terms.⁵⁸ A similar clause was held to be effective to negate the authority of an auctioneer to make representations in Overbrooke Estates v. Glencombe Properties, ⁵⁹ and was not caught by section 3 of the Misrepresentation Act 1967. It will also be relevant to any ''battle of the forms''.60 The clause may be ineffective, however, unless the customer knows or should have known of it before the contract was made, otherwise the forwarder may be bound by an apparent

^51. No appeal on this point was made to the Court of Appeal.

^52. Salsi v. Jetspeed [1977] 2 Lloyd's Rep 57, distinguishing British Crane Hire Corp Ltd v. Ipswich Plant Hire Ltd [1975] 1 QB 303; cf Elof Hansson Agency Ltd v. Victoria Motor Haulage Co Ltd (1938) 54 TLR 666, where the court rejected implied incorporation of a later (and more restrictive version) of the London Lighterage Clause which had not been generally accepted nor judicially recognised. Apart from the issue of implied incorporation, which might perhaps require strict evidence that a term or set of conditions are so well known that the parties must be taken to have contracted on them, the usual or common nature of the term or conditions will be relevant to issues of reasonableness in respect of choices made by the forwarder or for the operation of the Unfair Contract Terms Act 1977, see, respectively: Swiss Bank Corp and Others v. Brink's MAT Ltd and Others [1986] 1 QB 853, [1986] 2 Lloyd's Rep 79 at p. 98 and Schenkers Ltd v. Overland Shoes Ltd [1998] 1 Lloyd's Rep 498.

^53. Von Traubenburg, above, fn. 45.

^54. See 2C.4.

^55. Pringle of Scotland Ltd v. Continental Express Ltd [1962] 2 Lloyd's Rep 80 at p. 86.

^56. As does BIFA, cl. 2(A), Geologistics GTC, cl. 1 and TT CLUB 400, cl. 2(a).

^57. See 2.19.

^58. See Geologistics GTC, cl. 1, TT CLUB 400, cl. 2(c).

^{59. [1974] 1} WLR 1335.

^60. See Butler Machine Tool Co Ltd v. Ex-Cell-O Corp (England) Ltd [1979] 1 WLR 401, and British Road Services Ltd v. Arthur V. Crutchley & Co Ltd [1968] 1 Lloyd's Rep 271. In a ''battle of the forms'', the idea that victory goes to the party who fires the last shot (the traditional offer and acceptance approach) depends upon whether the last shot sufficiently incorporates that party's terms so as to provide adequate notice that a counter offer is being made with the effect of negating the terms of the other party, see Sterling Hydraulics Ltd v. Dichtomatik Ltd [2006] EWHC 2004 (QB), [2007] 1 Lloyd's Rep 8; Tekdata Interconnections Ltd v. Amphenol Ltd [2009] EWCA Civ 1209, [2010] 1 Lloyd's Rep 357.

authority in his employee to vary the terms of the contract.⁶¹ In the American decision of Amdahl Corp v. Profit Freight Systems Inc, ⁶² this clause in LEP⁶³ Conditions was used to support the conclusion that the forwarder was unable to alter the limitation of liability in his trading conditions by reference to a different limitation contained in a bill of lading issued by the sea carrier. This was notwithstanding a further clause in the trading conditions granting authority to the forwarder to sign and accept in the customer's name any documents relating to said shipment and forward this shipment in accordance with the conditions of carriage and tariffs of the carriers employed.

Some conditions may indicate that the use of the customer's own forms is not to 2.15 derogate from the conditions.64 This would be ineffective if the rules of offer and acceptance are applied in such a way as to make the client's terms the governing conditions as in British Road Services Ltd v. Arthur V. Crutchley & Co Ltd. ⁶⁵ That is unless the notice given of the forwarder's terms is such as to impose a duty on the customer to give specific notice to the forwarder of his own terms,66 or is otherwise sufficient to affect the apparent authority of the forwarder's employee. Note also the possibility mentioned in that case of either reconciling the terms or scrapping contradictory terms and replacing them by a reasonable implication.⁶⁷

Difficulties can arise if, having issued one document containing trading condi- 2.16 tions to his customer, the forwarder issues a later document (usually a carriage document such as a bill of lading) with conflicting conditions. TT CLUB 400, clause 2(B) makes it clear that where the subsequent document is issued by the forwarder as a carrier the conditions in this document have priority over the general

^61. Cf Slim v. G.N. Ry (1854) 14 CB 647, where the failure of the consignor to follow the prescribed procedure for delivery to the carrier meant that, although they were delivered into the possession of the carrier's servant, the carrier did not receive the goods under a contract of a carriage and were not responsible for their loss. Compare, however, Datec Electronic Holdings Ltd v. United Parcels Service Ltd [2007] UKHL 23, [2007] 1 WLR 1325, [2007] 2 Lloyd's Rep 114, where no issue of the employee's authority arose. Despite the fact that the contract contained a term which stated that UPS did not offer carriage of packages which failed to comply with certain restrictions including a requirement that any package should not exceed \$50,000 in value, this did not prevent a contract of carriage from existing when packages exceeding that amount were unknowingly accepted for carriage. Had UPS exercised its right to refuse to carry at the outset no contract of carriage would have arisen (per Lord Hope [9]).

^{62. [1995]} AMC 2694 (9th Cir. 1995).

^63. These appeared later as Geologistics GTC.

^64. E.g. Geologistics GTC.

^{65. [1968] 1} Lloyd's Rep 271, see Lord Pearson at pp. 281–282.

^66. See Lord Denning MR in Butler Machine Tool Co Ltd v. Ex-Cell-O Corp (England) Ltd [1979] 1 WLR 401 at p. 405.

^67. See Lord Denning at p. 405. Cf Transmotors Ltd v. Robertson, Buckley [1970] 1 Lloyd's Rep 224, Johnson Matthey Bankers Ltd v. State Trading Corp of India [1984] 1 Lloyd's Rep 427 and see also Tekdata Interconnections Ltd v. Amphenol Ltd [2009] EWCA Civ 1209, [2010] 1 Lloyd's Rep 357 where it was considered that in a battle of forms case the traditional offer and acceptance analysis had to be adopted unless the documents passing between the parties and their conduct showed that their common intention was that some other terms were intended to prevail. It would be difficult to displace the traditional analysis unless it could be said that there was a clear course of dealing between the parties. Cf, GHSP Inc v. AB Electronic Ltd [2010] EWHC 1828 (Comm), [2011] 1 Lloyd's Rep 432. See further Treitel, p. 19, and E.J. Jacobs, ''The Battle of the Forms: Standard Term Contracts in Comparative Perspective'', (1985) 34 ICLQ 297.

conditions.68 The absence of such a clause will produce a difficulty.69 So long as the court does not regard the issue of the second document as simply too late to affect the contract,⁷⁰ one possibility might be to give preference to the carriage document as the one most relevant to the transport.⁷¹ Alternatively the courts might apply the provisions of the last document to be issued.⁷² The more likely approach would regard those provisions in the later document which conflicted with the general conditions as amounting to a variation or exclusion of them.73 This would not necessarily deprive the remaining conditions in the earlier document of their effect. In Ocarina Marine Ltd v. Marcard Stein & Co,⁷⁴ Rix J considered⁷⁵ the jurisdiction clause in a ''tailor-made'' loan agreement to be incompatible with the equivalent provision in the general business conditions so that the former clause was to be taken as varying or even excluding the latter.76 There might not be any real issue of inconsistency where it is possible, for example, to treat an exclusion in a carriage document as relating only to transport and not to the forwarder's wider functions.

^68. Cf the 2002 P&O Ferrymasters General Conditions, cll. 2.1.2 and 2.2., which gave varied priorities to different conditions.

^69. Ramberg, The Law of Freight Forwarding, 1993, p. 43 suggests that stipulations in an FBL supersede the freight forwarder's general conditions if in conflict. This is said to follow from express stipulations in the FBL. It is not entirely clear to which express stipulations the author refers. The FBL indicates on its face that goods and instructions are accepted subject to the conditions. This does not expressly indicate that it overrides other conditions although this might be regarded as its meaning.

^70. There might be a sufficient course of dealing which effectively incorporates both documents. 71. Cf Chas Davis (Metal Brokers) Ltd v. Gilyott and Scott and Pickering Road Haulage Ltd [1975] 2

Lloyd's Rep 422 where a ''battle of the forms'' was in issue. Compare Frans Maas (UK) Ltd v. Samsung Electronic Ltd [2004] EWHC 1502 (Comm), [2004] 2 Lloyd's Rep 251, where the defendant sought to apply different terms to forwarding or storage services. An important consideration for preferring the view that BIFA rather than UKWA terms applied was that the goods were stolen from a custom's approved ''Enhanced Remote Transit Shed'' i.e. a short transit lounge rather than a true storage warehouse.

^72. A Canadian example of this is Canastrand Industries Ltd v. The Lara S. [1993] 2 FC 553; see Tetley, ''Canadian maritime legislation and decisions 1993–1994'' [1995] LMCLQ 88.

^73. See, however, T Comedy (UK) Ltd v. Easy Managed Transport Ltd [2007] EWHC 611 (Comm), [2007] 2 Lloyd's Rep 397 where a general agreement between the parties setting out terms of carriage but making no reference to RHA conditions was not varied by the issue of delivery notes and invoices which did. The judge considered that it cannot be inferred from standard form statements made by one party on invoices and delivery notes that the other party was agreeing to vary an existing agreement as opposed to where there is no existing agreement. Compare the approach in a different context: where different jurisdiction clauses appear in different documents in a complex derivatives transaction it is the clauses (in this case a jurisdiction clause) in the agreements which are at the commercial centre of the transaction which the parties must have intended to apply rather than ''boiler plate'' clauses (including a contradictory jurisdiction clause) in other documents primarily intended to deal with technical banking disputes, Lord Collins of Mapesbury in UBS AG v. HSH Nordbank [2009] EWCA Civ 585, [2009] 2 Lloyd's Rep 272 at [95]. Where contradictory jurisdiction and arbitration clauses appear in the same document the jurisdiction clause may well be taken to be applicable to the supervisory jurisdiction over the arbitration, Tri-Mg Intra Asia Airlines v. Norse Air Charter Ltd [2009] SGHC 13, [2009] 1 Lloyd's Rep 258 (High Court of Singapore), Paul Smith Ltd v. H & S International Holding Inc [1991] 2 Lloyd's Rep 127.

^{74. [1994] 2} Lloyd's Rep 524.

^75. At p. 529.

^76. Compare the discussion of similar issues raised in respect of documents used in carriage by sea in Gaskell et al., at 2F. See also the point made at 2.6, above, in respect of BIFA Conditions. In Atlanska Plovidba v. Consignaciones Asturianas SA (The Lapad) [2004] EWHC 1273 (Comm), [2004] 2 Lloyd's Rep 109, the contract of carriage by sea was accepted as being contained in the booking note notwithstanding the later issue of a bill of lading. The arbitration clause in the booking note could thereby be applied regardless of any difficulty presented by the incorporation clause in the bill.

A useful comparison can be drawn with an American decision in Zenith Electronics Corp v. Panalpina Inc, ⁷⁷ where the forwarder failed to present the carriage document to the bank and was held to be unable to rely on the time limit in the bill of lading (protecting the carrier) issued by its own in-house NVOCC.

Similar difficulties can arise if the standard conditions incorporate general 2.17 institutional rules to apply alongside the conditions.⁷⁸ The FIATA Model Rules make clear by clause 1.2 that if incorporated they take precedence over other conflicting terms unless such terms increase the responsibility or obligations of the freight forwarder. In Rhˆone Poulenc Rorer Ltd v. Trans Global Group Ltd, ⁷⁹ a conflict clause gave precedence to an umbrella agreement over BIFA conditions and Colman J rejected an approach involving complete rejection of a clause, where, despite differences in detail and substance, this clause and the clause in the agreement could be read or applied together.⁸⁰ Effect must be given to both unless and to the extent that there is an inconsistency. A further possibility is the use of standard trading conditions to incorporate by reference the conditions in use by another operator. This will arise where the forwarder has undertaken responsibility for the performance of the operation to the customer,81 but is keen to protect himself in circumstances where his subcontractor uses particularly restrictive conditions. This is similar to the use made of incorporation by reference in some combined transport documents.82 The consequences of such incorporation, especially where they are particularly restrictive, may need to be brought home to the customer in order to ensure their effective incorporation into the contract,83 and to satisfy the reasonableness test in UCTA where this is applicable to the contract.84 Any authority to incorporate the conditions of other operators is likely to be restricted where these conditions conflict with express terms in the general trading conditions unless a different relationship between them is made clear.85

Where a clause states that ''Goods are accepted only upon the conditions printed 2.18 at back . . . '' this does not always imply physical acceptance of the goods, but may be interpreted as agreement to deal with the goods in the ways agreed which may involve calling forward of goods as opposed to physical receipt.86 It can, however, include taking of possession, and the fact that one or more terms apply only when the forwarder acts as an agent does not mean that other terms cannot be applied

^{77. [1996]} AMC 622 (7th Cir. 1995).

^78. A further possibility might be the incorporation of the other party's terms which conflict with written terms. In Indian Oil Corp v. Vanol Inc (''Indian Oil'') [1991] 2 Lloyd's Rep 634 (reversed on appeal for different reasons [1992] 2 Lloyd's Rep 563), a specific clause in a written agreement was held to override the incorporated clause.

^79. QBD, 18 June 1997, unreported.

^80. Some reservations were expressed by Waller LJ in the Court of Appeal (18 February 1998, unreported) in respect of claims related to the umbrella agreement which were outside the services which had always previously been supplied in relation to individual ad hoc transactions.

^81. See 2C.4.

^82. See 4G.3.2.

^83. See the cases cited in 2.10. Cf Ocean Chemical Transport Inc v. Exnor Craggs Ltd [2000] 1 Lloyd's Rep 446.

^84. Cf Brooke LJ, in Lacey's Footwear (Wholesale) Ltd v. Bowler International Freight Ltd [1997] 2 Lloyd's Rep 369, at p. 383. See further 2C.2.2.

^85. Cf Amdahl Corp v. Profit Freight Systems Inc [1995] AMC 2694 (9th Cir. 1995).

^86. See Pringle of Scotland v. Continental Express [1962] 2 Lloyd's Rep 80 at p. 88.

when the forwarder is acting in another capacity.87 Where a form is clearly divided between different activities it will be difficult to persuade a court that a clause covering one activity can provide protection in relation to another.88

2C STANDARD TERMS OF CONTRACT

2C.1 DEFINITIONS AND APPLICATION

2.19 BIFA 2005A clause 1, BIFA 2000 clause 1 (''owner''), BIFA 2005A clause 2A, FIATA Model Rules for Freight Forwarding Services clause 2.1, Example Contract, clause 1.1f) and clause 1.1h), TT CLUB 600, clause 1 Definitions & Interpretation (Logistics Centre, Logistics Document).⁸⁹
- 1 In these conditions the following words shall have the following meanings:—

''Company''	the BIFA Member trading under these Conditions
''Consignee''	the Person to whom the goods are consigned
''Customer''	any person at whose request or on whose behalf the Company undertakes any business or provides advice, information or services90
''Direct Representative''	the Company acting in the name of and on behalf of the Customer and/or Owner with H.M. Revenue and Customs (''HMRC'') as defined by Council Regulation 2193/92 or as amended91
''Goods''	the cargo to which any business under these conditions relates
''Person''	natural person(s) or any body or bodies corporate
''SDR''	are Special Drawing Rights as defined by the International Monetary Fund92
''Transport Unit''	packing case, pallets, container, trailer, tanker, or any other device used whatsoever for and in connection with the carriage of Goods by land, sea or air
''Owner''	the Owner of the Goods or Transport Unit and any other Person who is or may become interested in them93

^87. L. Harris (Harella) Ltd v. Continental Express Ltd [1961] 1 Lloyd's Rep 251 at p. 256.

^88. Cf Lufty Ltd v. Canadian Pacific Ry Co (The Alex) [1974] 1 Lloyd's Rep 106 (Federal Ct. Canada). See further 2C.1.1.

^89. See also HAFFA, (Hong Kong Association of Freight Forwarding and Logistics) Form of Trading Conditions (www.haffa.co.hk) definitions of owner and services. TT Talk (24 March 2009, No.117) indicates that these conditions are not a fully fledged set of logistics conditions. Complex contract logistics agreements may well require additional terms.

^90. This clause seeks to identify the forwarder's contracting party and is considered within a general discussion of with whom the contract is made below at 2C.1.2.

^91. This links with cl. 7 which makes BIFA a Direct Representative for customs purposes. The regulations indicated distinguish direct representation where the representative acts in the name of and on behalf of another person (and so is not personally liable for customs duties) and indirect representation where the representative acts in their own name but on behalf of another person.

^92. See fn. 1180.

^93. Various clauses in the BIFA Conditions refer to or purport to affect the rights of the owner of the goods who is defined in this clause, see especially cl. 4 of the 1989 Conditions, see 2.33. The definition of owner may also be used to define the liability of the customer for breach of warranty of authority. The

1. In these conditions

The ''Owner'' means the Owner of the goods (including any packaging, containers, or equipment) to which any business concluded under these Conditions relates and any other person who is or may become interested in them.
2. (A) Subject to Sub-Paragraph (B) below,⁹⁴ all and any activities of the Company in the course of business whether gratuitous or not are undertaken subject to these Conditions.
2.1 Freight Forwarding Services means services of any kind relating to the carriage, consolidation, storage, handling, packing or distribution of the Goods as well as ancillary and advisory services in connection therewith, including but not limited to customs and fiscal matters, declaring the Goods for official purposes, procuring insurance of the Goods and collecting or procuring payment or documents relating to the Goods.
1.1f) ''Freight Forwarding Services'' shall mean the planning and control of those Logistics Activities required in the movement of Goods from the Point of Origin to the Consignee. The Freight Forwarding Services shall also include all those administrative, ancillary and advisory services in conjunction with the movement of goods including, but not limited to, customs and fiscal matters, declarations and exchange controls, procurement of insurance and the collecting of payments for either goods or Logistics Activities.
1.1h) ''Logistics Activity'' shall mean the tasks undertaken by the Service Providers involved in the movement of the Goods, including collection, unloading, acceptance, storage, stock control, order handling, de-stuffing, consolidation, palletisation, preparing for shipment, loading, assembly, labelling, invoicing, shipping documentation, exchange control information, provision of customs information, delivery and the provision of shipment tracking and tracing details.

1. DEFINITIONS & INTERPRETATION

The definitions and rules of interpretation in this clause apply in this Agreement.

1.1 ''Logistics Centre'' means premises, including but not limited to an office, a warehouse or a distribution centre, from which the Logistics Provider provides the Services;

''Logistics Document'' means a bill of lading, sea waybill, air waybill, road consignment note, shipping note, courier note, warehousing receipt note, storage note or any similar document containing or evidencing conditions of contract;

2C.1.1 Forwarding and logistics activities

BIFA clause 2A makes only general reference to the type of activity or business to 2.20 be undertaken by the forwarder apart from ensuring that the terms cover activity which is gratuitous as well as for reward. This eschews any attempt to define forwarding activity as such so that any work done by the company can be subject to the conditions provided that they are successfully incorporated. There is some danger in seeking to define the range of forwarding or logistical activities that may be undertaken. Given that trading conditions are designed for use over a range of contracts such a definition could work negatively on the application of a set of

effectiveness of such clauses is discussed below at 2C.3. BIFA 2000, cl. 1 is unclear as to whether the owner of a container is included when such owner is not also the owner of the goods contained in it since the word container might be considered to qualify the word ''goods'' rather than the word ''owner'' (cf. TT CLUB 400, cl. 1(G), see above.) Similarly the word ''equipment'' may be considered as referring to equipment carried as goods rather than equipment used in connection with carriage. BIFA 2005A seems more clearly to separate the owner of the goods from the owner of the transport unit. This links with the introduction of a definition of goods to mean cargo. Clause 1 of both BIFA 2000 and BIFA 2005A refer to a ''person who . . . may become interested in them [the goods]'' which may be too vague unless content can be given to it by reference to persons who have a legal or equitable relationship to the goods at some relevant point of time (cf TT CLUB 400, cl. 1(j)).

See 2C.2.

conditions if their scope of application is considered to be confined to a particular range of activities. That is, unless they are applied expressly to the particular activities envisaged by an individual contract rather than incorporated generally.95 In such a case a court may be expected to apply them unless it regards the attempt to involve an inherent contradiction. Where different sets of conditions are designed to apply to different types of activity, it may be necessary to seek some means of differentiating them. For example the Netherlands Association for Forwarding and Logistics (FENEX) provides different conditions for each of these groups of activity. Their forwarding conditions are generally expressed to apply to any form of service which the forwarder shall perform.⁹⁶ The separate terms and conditions for value-added logistics contain a definition of logistics activities.⁹⁷ Since they are linked particularly to activities taking place at an agreed place⁹⁸ this can help to distinguish them from general forwarding activities. Other traditional forwarding associations have, however, sought to reflect the development of logistics services by specific reference to typical activities, such as inventory control and management, within general forwarding conditions.99

2C.1.2 The contracting parties

2.21 The BIFA clause defining the customer100 seeks to identify the forwarder's contracting party to whom the conditions, in general, are addressed. It envisages that the person requesting the service may be acting for himself or as an agent. Where goods are being transmitted by a consignor to a consignee owner of the goods under a contract of carriage by land it is usually presumed at common law that the consignee is the carrier's contracting party.101 Where the relationship is one of bailee/bailor it seems that the bailee is the contracting party at least where the bailee retains his status as bailee and continues to enjoy the immediate right to

^95. It can be expected that for contract logistics the services would be detailed in the contract or attached via an appendix. Typical activities are those indicated in the clauses reproduced above. See further, Jan´e and de Ochoa, 2.4.4.1.

^96. Fenex Forwarding Conditions 2004, cl. 1.1.

^97. Terms and Conditions for Value Added Logistics 1995. These refer to activities such as unloading, acceptance, storage, delivery, stock control, order handling, order picking, preparing for shipment, loading, invoicing, assembling, labelling, exchange and control of information with regard to goods.

^98. Which is natural for many logistics contracts where storage and distribution is centred on a warehouse or ''logistics centre''. This is not necessarily one belonging to the operator, the customer having made premises available, a possibility envisaged e.g., in TT CLUB 600, cl. 5. This clause provides for access to such premises and for availability of facilities. The definition of a logistics centre is reproduced above at 2.19.

^99. As in HAFFA, cl. 1. TT CLUB 600 provides a definition of value-added services which includes but is not limited to procurement on behalf of the customer, stock and inventory management, picking, packing, assembly, labelling, container management, order processing, order expediting, processing, document production, customs process management, contract management and Information Systems management. This links with cl. 7.2 which requires the customer, in respect of such services, to provide all necessary procedures, instructions and manuals. This is presumably distinguishable from core activities linked to storage and distribution.

^100. See above, 2.19.

^101. Dawes v. Peck (1799) 8 TR 330, Glass & Cashmore, p. 3, Cashmore, p. 91, Palmer (2nd edn), p. 963. This applies where a seller/buyer relationship exists as between consignor and consignee.

possession.¹⁰² Clearer proof of agency seems to have been required in the forwarding cases of Universal Shipping and Forwarding Co Ltd v. Commercial and Industrial Co Ltd, ¹⁰³ and E.W. Taylor v. Bell¹⁰⁴ where McNair J,105 required proof that the sender was acting ostensibly and actually as agent.106 In F.H. Bertling v. Tube Developments Ltd, ¹⁰⁷ a forwarder received instructions from a buyer who was responsible for the transport arrangements under the sale contract. In addition to making the transport arrangements the forwarder, as customary, also organised the shipping documentation required for the purposes of a letter of credit. To this end the forwarder received a copy letter of credit from the seller. It was held that this did not raise any implication that the forwarder was accepting the seller as its principal. The seller could reasonably assume that the forwarder would be prepared to arrange the shipping documentation in compliance with the letter of credit and receipt of the copy letter of credit implied merely a request to do so and not an instruction from the seller which would make him liable to pay the carriage charges.

The BIFA clause identifies both the requester and the person on whose behalf the 2.22 request is made as potential customers. It appears to do so in the alternative rather than to envisage both as being the customer although this may not be an impossible construction.¹⁰⁸ At common law the contracting party normally would have to be one or the other but could be both, where there is an undisclosed agency or where the agent is deemed to have contracted personally in addition to his principal. Even where no agency is involved it might be possible for a forwarder to have two principals. In F.H. Bertling v. Tube Developments Ltd, ¹⁰⁹ it was noted that whilst this is no doubt possible and perhaps not unlikely where for convenience a single freight forwarder is used by a buyer and seller for discrete stages in circumstances where the buyer and seller have divided responsibility for transport, it is prima facie improbable where only one party, viz. the buyer, has responsibility for transport. That is, unless for some reason the buyer and seller accept joint and several liability to the forwarder.

Arguably the BIFA clause, or its equivalent in other conditions, could not affect 2.23 the application of the law to determine, in itself, who is in fact the principal contracting party. Presumably, however, it could affect whether, for example, a personal liability has been undertaken by an agent or a warranty has been given¹¹⁰ and whether the conditions are in their terms applicable to persons who are otherwise held to be bound by them without being a directly contracting party, as

^102. Compare Freeman v. Birch (1833) 3 QB 492, 114 ER 596, G.W. Ry Co v. Bagge (1885) 15 QBD, 625, with R. v. Kay (1857) Dears & B. 231, 169 ER 988, and Palmer (2nd edn), p. 965.

^{103. (1919) 1} Ll L Rep 635.

^{104. [1968] 2} Lloyd's Rep 63.

^105. At p. 70.

^106. Cf Palmer, (2nd edn), p. 1096, n. 18; see further Cenargo Shipping Ltd v. Henry Butcher & Co (A Partnership), CA, 23 January 1990, unreported.

^{107. [1999] 2} Lloyd's Rep 55 (Scotland, Court of Sessions, Commercial Court).

^108. Cf K/S A/S Seateam & Co v. Iraq National Oil Co (The Sevonia Team) [1983] 2 Lloyd's Rep 640 at p. 643, cf also the FIATA Model Rules, cl. 2.4, which defines the customer as any person having rights or obligations under the contract of Freight Forwarding Services concluded with a Freight Forwarder or as a result of his activity in connection with such services.

^109. Above, fn. 107.

^110. As in cl. 3 of BIFA 2005A, see below 2.33.

in the case where an owner of goods is bound by a bailment on terms.111 Some conditions incorporate the ''customer'' into the general definition of ''owners'' to whom the terms of the conditions are addressed¹¹² and include as ''owners'' consignors, senders, shippers, consignees, and receivers of goods and their servants and agents and each of them. This more robust approach may well be more effective in attaching the conditions to those who are, in law, bound by them although such width can produce difficulties of interpretation which may prove to be selfdefeating.¹¹³ Geologistics GTC are addressed to the customer without definition. TT CLUB 400, clause 1(e) defines the customer in similar terms to the BIFA clause.

2C.2 COMPULSORY LEGISLATION

2.24 BIFA 2005A, clause 2(B), P & O Ferrymasters General Conditions 2011, clause 2.3.

2(B) If any legislation, to include regulations and directives, is compulsorily applicable to any business undertaken, these conditions shall, as regards such business, be read as subject to such legislation, and nothing in these conditions shall be construed as a surrender by the Company of any of its rights or immunities or as an increase of any of its responsibilities or liabilities under such legislation, and if any part of these conditions be repugnant to such legislation to any extent, such part shall as regards such business be overridden to that extent and no further.

2.3 If any International Convention (including CMR) applies and such Convention does not contain any provisions relating to an aspect of the contract or an issue between the Company and the Customer, then, insofar as any of these Conditions do not derogate from such Convention, these Conditions shall apply to that aspect or issue.

2C.2.1 Regimes of liability

2.25 BIFA 2005A clause 2(B) recognises the possibility that there may be legislation governing a particular operation which may restrict the freedom of the parties to contract in respect of the liabilities arising from the operation.¹¹⁴ This is especially the case if the forwarder provides services related to international carriage subject to a carriage liability regime which may apply to the forwarder if he supplies the service

^111. Morris v. C.W. Martin & Sons Ltd [1966] 1 QB 716 at p. 729, [1965] 2 Lloyd's Rep 63 at p. 72; Johnson Matthey Ltd v. Constantine Terminals Ltd [1976] 2 Lloyd's Rep 215; Singer Co (UK) Ltd v. Tees and Hartlepool Port Authority [1988] 2 Lloyd's Rep 164 and Spectra International plc v. Hayesoak Ltd [1997] 1 Lloyd's Rep 153 (reversed on different grounds [1998] 1 Lloyd's Rep 162 (CA)). See further the discussion at 2C.3.

^112. In bills of lading it is more common to address the conditions to the ''Merchant'' who is normally defined in equally wide terms, see further 4.90.

^113. See Shell Chemicals v. P&O [1993] 1 Lloyd's Rep 114 (as affirmed by the Court of Appeal [1995] 1 Lloyd's Rep 297. Cf in the context of a definition of merchant clause (see 4.90), Australia Yallow & Agri-Commodities Pty Ltd v. MISC [2001] NSWCA 16, (2001) 50 NSWLR 576.

^114. See also Geologistics GTC, cl. 28 (in much the same terms as the 1981 edn of the IFF Conditions), TT CLUB 400, cl. 35.

himself or is considered to have contracted to provide it albeit through subcontractors.¹¹⁵ Such regimes contain provisions either preventing the carrier from reducing his responsibilities,¹¹⁶ or preventing the parties from derogating from the provisions.117 Non-compliance results in the offending stipulation being null and void. It is, however, usually provided that this does not involve the nullity of other provisions in the contract.118 The fact that such provisions are contained in an ''umbrella contract'' in the context of a more long-term relationship will not necessarily safeguard them from attack.119 Clause 2(B) of BIFA 2005A refers in general to compulsory rules. Some conditions may make more specific references for which care will be needed to ensure that they are up-dated as appropriate.120

2C.2.2 The Unfair Contract Terms Act 1977

Also relevant is the possible application of UCTA 2.26 ¹²¹ which, where applicable, submits many of the terms contained in the conditions to the reasonableness test as defined in section 11 of the Act. To determine whether the test is to be applied, the contract must fall within the scope of the Act and the term to be considered must be a term regulated by the provisions of the Act. By section 26 the Act will not apply to an international supply contract, which includes circumstances where possession of goods passes and the contract is made by parties whose places of business are in the territories of different states. Consequently an English forwarder contracting with a foreign customer may be able to avoid the operation of the Act provided that he takes possession of the goods.122 In the unlikely circumstance that a foreign forwarder contracts under BIFA Conditions, section 27 might also be available to exclude the operation of the Act since clause 28 of the conditions,123 would likely represent a proper law only by choice of the parties. Furthermore the exception in respect of carriage of goods by ship or hovercraft in Schedule 1 to the Act would

^115. The most relevant are the Hague-Visby Rules, (applied under the Carriage of Goods by Sea Act 1971); the CMR Convention (applied under the Carriage of Goods by Road Act 1965); and the Warsaw Regimes and Montreal Convention 1999 (applied under the Carriage by Air Act 1961). See 1.29. In respect of carriage by rail and the application of the COTIF Convention see further 4B.11.1.

^116. As do the Hague-Visby Rules in Art. III, r. 8 and the Montreal Convention, Art. 26.

^117. As does CMR, Art. 41.

^118. E.g. Art. 41, CMR, Art. 26, Montreal Convention.

^119. Cf Gefco UK Ltd v. Mason [1998] 2 Lloyd's Rep 585 where the CMR Convention was held to be applicable to such a contract covering a series of transports.

^120. TT Talk no. 93 reported a decision of the Landgericht Karlsruhe (11 July 2006) where the carrier's conditions applied the limits of the Warsaw Convention which the court took to lead through to the Convention's provision enabling the limits of liability to be broken in the case of reckless conduct.

^121. See generally Treitel, 7–049 et seq., Palmer 38–044 et seq.

^122. Further requirements are that either: (a) the goods in question are, at the time of the conclusion of the contract, in the course of carriage, or will be carried, from the territory of one State to the territory of another; or (b) the acts constituting the offer and acceptance have been done in the territories of different States; or (c) the contract provides for the goods to be delivered to the territory of a State other than that within whose territory those acts were done. See Amiri Flight Authority v. BAE Systems plc [2003] 2 Lloyd's Rep 767, Balmoral Group Ltd v. Borealis (UK) Ltd [2006] 2 Lloyd's Rep 629, Trident Turboprop (Dublin) Ltd v. First Flight Couriers Ltd [2009] EWCA Civ 290, [2009] 1 Lloyd's Rep 702. In this last case s. 26 was held to extend to liability for misrepresentation and affected the application of s. 3 of the Misrepresentation Act 1967.

^123. See 2.313.

apply where the forwarder acts as a principal in respect of such a contract¹²⁴ and the customer is not a consumer.125 A further exclusion is made in respect of insurance contracts in Schedule 1. This does not apply, however, to an agreement to arrange insurance within the terms of clause 11.126 Additionally, by section 29(1) of UCTA, obligations imposed and defences provided by an international liability regime such as the CMR Convention cannot be challenged under it.127

2.27 Where the forwarder's contract falls within UCTA, any clause which seeks to exclude or restrict liability for negligence, as further defined in section 13, will fall within section 2 and will either be rendered void if it covers death or personal injury or subject to the test of reasonableness in respect of other loss or damage. Other excluding or restrictive clauses, as defined in sections 3 and 13, will be subject to the test of reasonableness under section 3. That is where either the forwarder's customer is a consumer or is dealing on the forwarder's written standard terms of business. There can be little doubt that the BIFA terms and other similar trading terms are ''written standard terms of business''¹²⁸ and they will constitute the forwarder's written standard terms if they ''invariably or at least usually contract on them''.129 Where, however, a forwarder or logistics service provider is operating on the basis of negotiated terms these are unlikely to be regarded as standard terms of business,¹³⁰ unless the negotiations have had little influence on the adopted terms.131
2.28 By reason of section 11(5) the forwarder will have the burden of proving the reasonableness of a term subjected to the test of reasonableness¹³² the test under that subsection being that ''the term shall have been a fair and reasonable one to be

^124. See 2C.4.

^125. See UCTA, s. 12.

^126. See 2.178.

^127. See Clarke, para. 92b, and see in respect of special agreement and the Warsaw Convention and the application of s. 29(2) of UCTA, Shawcross & Beaumont, (vii) 158.

^128. Cf McCrone v. Boots Farm Sales Ltd, 1981 SLT 103 at p. 105, and see Jacobs, pp. 109–112.

^129. See British Fermentation Products Ltd v. Compare Reavell Ltd [1999] 2 All ER (Comm) 389 at p. 401, see Treitel, p. 272, 7–067, n. 358.

^130. The Flammar Pride [1990] 1 Lloyd's Rep 434 at p. 438, see Treitel, p. 253, n. 88. Cf Hadley Design Associates Ltd v. The Lord Mayor and Citizens of the City of Westminster [2003] EWHC 1617 (TCC), [2004] TCLR 1, where His Honour Judge Richard Seymour QC usefully stated (at [83]) '' . . . it is a question of fact whether the relevant contract between the parties was on the terms of those 'written standard terms of business'. That might well be a question of degree. If the only agreed contract terms are those of 'written standard terms of business' the conclusion that the parties dealt on the 'written standard terms of business' of the relevant party may be obvious. It is unlikely to be enough to avoid that conclusion that, apart from the 'written standard terms of business', some term was specially negotiated for the purposes of the particular contract. However, the role in the context of possibly voluminous documentation of a pre-prepared document setting out 'written standard terms of business' may be so small in relation to the whole, or the modifications to a pre-prepared document setting out 'written standard terms of business' may be so significant, that it may be an abuse of language to describe the resulting contract as a deal on the 'written standard terms of business' of one or other of the parties.'' See also Ferryways NV v. Associated British Ports [2008] EWHC 225 (Comm), [2008] 1 Lloyd's Rep 639.

^131. St. Albans City & District Council v. International Computers Ltd [1996] 4 All ER 481, i.e. if the negotiations have left the terms in question effectively untouched, see Treitel, previous footnote. In this case the judge at first instance found there to be an inequality of bargaining power in view of the fact that few companies were able to supply the customer's requirements in respect of the computer database and these companies contracted on similar terms.

^132. See Landcatch Ltd v. Marine Harvest Ltd 1985 SLT 478 and Overseas Medical Supplies Ltd v. Orient Transport Services [1999] 2 Lloyd's Rep 273.

included having regard to the circumstances which were, or ought reasonably to have been, known to or in the contemplation of the parties when the contract was made''. The courts may consider a wide range of factors in determining whether a clause satisfies the test,133 and although not technically applicable to contracts such as forwarding, the matters referred to in the guidelines contained in Schedule 2 to UCTA, where relevant, are also likely to be taken into account.¹³⁴ At this point note can be taken of the importance of notice of the term135 sought to be relied on having been given to the customer.136 Other factors relevant to the test of reasonableness are considered further below as they arise in respect of particular clauses.137 At this point, however, the important decision of the Court of Appeal in Schenkers Ltd v. Overland Shoes Ltd¹³⁸ can be noted. Evidence was acknowledged that the current BIFA conditions are the product of the combined efforts of nearly all those associated with the shipping industry and seek to balance the interests of all parties. The view was also expressed that, in a situation in which there was no significant inequality of bargaining position, the customs of the trade were an important factor.

2C.2.3 Directive on Unfair Terms in Consumer Contracts

Apart from UCTA, regulations giving effect to the EC Council Directive on Unfair 2.29 Terms in Consumer Contracts¹³⁹ came into effect on 1 July 1995.140 These will be relevant where the forwarder, as a supplier of services,141 deals with a consumer. The provisions of the Directive will stand alongside those of UCTA so that the application of each of them will need to be considered.142 While there is similarity between the UCTA test of reasonableness and the Directive's concept of unfairness,143 there are contractual provisions which will be subject to control under the Directive which are not currently controlled by UCTA, e.g. price variation clauses.144 In accordance with Article 3(3) the Annex to the Regulations contains an

^133. See generally, Jacobs, pp. 139–171.

^134. See Singer Co (UK) Ltd and Another v. Tees and Hartlepool Port Authority [1988] 2 Lloyd's Rep 164 at p. 169, cf Stag Line Ltd v. Tyne Shiprepair Group Ltd and Others (The Zinnia) [1984] 2 Lloyd's Rep 211 at p. 222, see further, Overseas Medical Supplies above fn. 132.

^135. Notwithstanding that, in the course of long and substantial dealings the customer fails to put his mind to the term, see Schenkers, below, fn. 138.

^136. See ''guideline'' (c) in Schedule 2. For this purpose the customer is the party who directly contracts, albeit the contract bears on the movement of goods belonging to a third party, as where the terms are contained in a transferable document, see Sonicare International Ltd v. East Anglia Freight Terminal Ltd [1997] 2 Lloyd's Rep 48 (CLCC Bus. List).

^137. See especially in respect of limitation of liability, 2C.23, below. See further Keeton Sons & Co Ltd v. Carl Prior Ltd [1986] BTLC 30). Cf Monarch Airlines Ltd v. London Luton Airport Ltd [1998] 1 Lloyd's Rep 403.

^{138. [1998] 1} Lloyd's Rep 498.

^{139. 5} April 1993, 93/13/EEC.

^{140. 1994} SI 94/3159, see now 1999 SI 99/2083.

^141. See Art. 2(c).

^142. See further, Brownsword and Howells, ''The Implementation of the E.C. Directive on Unfair Terms in Consumer Contracts—Some Unresolved Questions'' [1995] JBL 243 and generally Treitel, pp. 288–307, 7–095 et seq, Palmer, 38–061 et seq.

^143. See the Preamble and Art. 3(1).

^144. See Annex 1(l).

indicative list of terms which may be regarded as unfair. In these respects, where UCTA provides greater protection to the consumer, Article 8 of the Directive would appear to permit such protection to be retained.145

2C.2.4 Paramount clauses

2.30 It is sometimes a requirement of liability regimes that the document issued by the carrier contains a ''paramount clause'', i.e. a statement that the carriage is subject to the provisions of the Convention146 along with a penalty for non-compliance.147 It is submitted that BIFA clause 2(B) would not satisfy such a requirement as it does not apply the relevant conventions to the contract but is merely acknowledging that they might apply and seeking to regulate their effect.¹⁴⁸ The clause might be effective, however, in ensuring that where a liability regime provides a defence that would not otherwise be available under the conditions, such as the negligent navigation and management defence in Article IV, rule 2, of the Hague Rules, or a limitation more favourable than the conditions,¹⁴⁹ such defence or limitation will be preserved in favour of the forwarder notwithstanding the terms of the remaining conditions. This is because of the reference to the company retaining its rights or immunities under the relevant legislation. Clause 2(B) also indicates that should any business be subject to such compulsory rules then clauses offending such rules shall be overridden as regards such business. This suggests that such clauses will be ineffective to control liability even if the issue is not resolved under such rules, provided that the ''business'' is subject to it. Even without such a suggestion it is possible that courts may take such an approach and negate offending clauses even if the precise issue of liability of the forwarder is not strictly governed by the rules. Thus in respect of the CMR Convention, Hirst J in Eastern Kayam Carpets Ltd v. Eastern United Freight Ltd, ¹⁵⁰ expressed the view that Article 41 prevented the application of IFF Conditions despite the fact that the forwarder was liable under a ''cash against documents'' arrangement which he had already held was not governed by CMR.¹⁵¹ Although his view was expressed in terms that are probably too wide,¹⁵² it has been argued153 that given that CMR applies to ''every contract for the carriage of goods by road'' then, ''the fact that any particular claim arising under such a contract might fall outside the particular provisions of the Convention does not effect [sic] the fact that the contract of carriage is still governed by the Convention

^145. See further, Duffy, ''Unfair Contract Terms and the EC Draft Directive'' [1993] JBL 67.

^146. E.g. CMR, Art. 6(1)(k) and Warsaw Convention, Art. 8(c) (cf, however, the Montreal Convention 1999). See also the notice requirement in the Warsaw Convention as amended by the Hague Protocol dicussed at 3.78.

^147. See CMR, Art. 7(3) and Warsaw Convention, Art. 9 (cf, however, the Montreal Convention 1999).

^148. Cf TT CLUB 400, cl. 35.

^149. See 2C.23.

^150. QBD, 6 December 1983, unreported.

^151. See further, 2C.13.

^152. It should not be all the conditions which are affected but only those which conflict with CMR.

^153. By A. Messent, in Cargo Claims Analysis, September 1984, p. 113.

in so far as its other provisions may be applicable''.154 A clause in the same terms as clause 2.3 of the P&O Ferrymasters General Conditions reproduced above might provide encouragement to a court inclined to take a less wide view of CMR in this respect.

2C.2.5 Severance

BIFA clause 2(B) clearly seeks to invite severance of offending clauses or parts of 2.31 such clauses by application of the blue pencil test.155 In respect of UCTA, terms or notices caught by sections 2 or 3 of the Act are ineffective ''except in so far as'' the term satisfies the test of reasonableness. In George Mitchell v. Finney Lock Seeds¹⁵⁶ Lord Bridge,¹⁵⁷ considered that the words ''to the extent that'' in the Supply of Goods (Implied Terms) Act 1973 do not empower the court to rewrite the clause so as to make it more reasonable. On the other hand in R.W. Green v. Cade Bros. Farm, ¹⁵⁸ the blue pencil was wielded to cut out the offending part of a clause leaving the remaining part to take effect.159 The Court of Appeal made clear in Stewart Gill Ltd v. Horatio Myer & Co Ltd, ¹⁶⁰ that the policy and purpose of UCTA is for the reasonableness of the whole term to be considered and that it is not consistent with this to use the blue pencil test to excise the most offensive parts. This confirms the importance of ensuring that terms are clearly separated, as are the current BIFA Conditions, and not lumped together in composite clauses. The difficulty does arise, as with some BIFA Conditions, where clauses are split into paragraphs. In light of the comments in Stewart Gill, above, it may not be possible to treat specific paragraphs as severable. In Stewart Gill the court was not concerned with an invitation in the nature of BIFA clause 2B and, rather than refer to terms or provisions being void,161 refers to any part of the conditions which on a liberal reading might include part of a condition.¹⁶² Even more explicit is a clause which provides that if a condition would be enforceable if amended, it will be treated as so amended.163

In respect of the Hague Rules, McNair J at first instance in G.H. Renton v. 2.32 Palmyra Trading Corp, ¹⁶⁴ appeared to suggest that a clause of a type exemplified by BIFA clause 2(B) might be effective to promote severance where the Rules are

^154. See also Shell Chemicals v. P&O [1993] 1 Lloyd's Rep 114, cf Noble v. R.H. Group Ltd and Another (CA, 5 February 1993). See further Hill and Messent, para. 12.5, and Johansson, ''The Scope and the Liability of the CMR—Is there a Need for Changes?'', 2002 Transportrecht 385 at p. 391.

^155. Cf the older FERRYMASTERS Conditions in cl. 11 which expressly provided that its provisions are severable. Clause 1.4 of the HAFFA Conditions make clear the severability of the conditions.

^{156. [1983] 3} AC 803 at p. 817, [1983] 2 Lloyd's Rep 272.

^157. At p. 278.

^{158. [1978] 1} Lloyd's Rep 602.

^159. See Yates and Hawkins, p. 48.

^{160. [1992] 1} QB 600, per Stuart-Smith LJ at p. 608.

^161. Cf cl. 11.2 of the P&O Ferries Freight Terms and Conditions of Carriage 2009. 162. Cf cl. 25.1 of Condor Logistics Conditions of Carriage and/or Warehousing 2009.

^163. See further the approach taken in DB Schenkers GCOC which requires, in cl. 19.1, the parties to negotiate in good faith to agree a mutually satisfactory provision, achieving as nearly as possible the same commercial effect, if a court, tribunal or other competent body has found a condition to be wholly

or partly illegal, invalid or unenforceable. 164. [1956] 1 QB 462 at p. 476, [1955] 2 Lloyd's Rep 301 at p. 314.

incorporated by contract but not where they are compulsorily applicable. Severance of offending parts of a clause took place, however, in Svenska Traktor Akt. v. Maritime Agencies, ¹⁶⁵ and in Unicoopjapan v. Ion Shipping, ¹⁶⁶ despite the fact that Article III, rule 8, states that ''Any Clause . . . shall be null and void and of no effect''.167

2C.3 AUTHORITY CONDITIONS

2.33 BIFA 2005A, clause 3 and BIFA 1989, clause 4

3. The Customer warrants that he is either the Owner, or the authorised agent of the Owner and, also, that he is accepting these conditions not only for himself, but also as agent for and on behalf of the Owner.168
4. In authorising the Customer to enter into any Contract with the Company and/or in accepting any document issued by the Company in connection with such Contract, the Owner and Consignee accept these Conditions for themselves and their Agents and for any parties on whose behalf they or their Agents may act, and in particular, but without prejudice to the generality of this Clause, they accept that the Company shall have the right to enforce against them jointly and severally any liability of the Customer under these Conditions or to recover from them any sums to be paid by the Customer which upon proper demand have not been paid.

2C.3.1 Express and implied warranties of authority

2.34 Two customer warranties are provided for in clause 3 of BIFA 2005A: a warranty of authority and a warranty that the conditions are accepted both by the customer and as agent for the owner.169 The object of the clause is to enable the forwarder to have recourse against the customer if the forwarder is unable to rely on his conditions whether facing a claim from a person interested in the goods or in attempting to exercise a lien. An example is where goods are despatched by a bailee of goods, damaged, and the owner of the goods claims for the damage. Since, at least historically,170 there would be no privity of contract between the forwarder and the owner, the forwarder might be unable to rely on his conditions to exclude or limit a possible claim for negligence. He would thus seek to exercise a recourse right against the customer for having warranted that he has the authority of the owner to dispatch the goods via the forwarder and that the conditions are accepted by the

^{165. [1953] 2} QB 295, [1953] 2 Lloyd's Rep 124.

^{166. [1971] 1} Lloyd's Rep 541. See also Gaskell et al., para. 2.60.

^167. Cf CMR, Art. 41 which uses the possibly more neutral word ''stipulation''.

^168. Besides this clause, other customer warranties are provided by cl. 17. See below. Similar ''authority'' clauses are Geologistics GTC, cl. 3 and TT CLUB 400, cl. 5. Cf RHA Conditions 2009, cl. 2(1).

^169. Compare cl. 3 of the Freightliner Conditions discussed at 4.10.

^170. The developments in the field of bailment on terms and the passing of the Contracts (Rights of Third Parties) Act 1999 (see Merkin, ed., Privity of Contract (2000)), have reduced significantly the need for this type of recourse provision. Nevertheless there might yet be occasion for reliance on it.

owner.171 If the customer is the owner or has the authority of the owner¹⁷² the warranties are satisfied. In Sonicare International Ltd v. East Anglia Freight Terminal Ltd, ¹⁷³ this type of warranty was held to be a continuing one. In this case the words ''on behalf of the owner'' were construed as meaning on behalf of the owner from time to time. Since attachment of the express warranty links to the authority of the owner the definition of owner will affect its width.174

An implied warranty of agency at common law can arise only if an agent professes 2.35 agency.175 The effect of the clause is to create an express warranty whether agency is professed or not. Actual knowledge of the absence of authority should, however, as in the case of an implied warranty, defeat the right to rely on the warranty, if only on the basis that the printed clause contradicts the reality of the agreement actually made.

The same might be true where the forwarder should know that there is a doubt 2.36 as to the customer's authority to bind the owner to the conditions. An example would be where it is well known that the owner is a large commercial enterprise unlikely to have agreed to any conditions in circumstances where it has hired out goods which are being returned to it by its customer. A further consequence of a liability based on warranty is that the agent's liability depends on the extent to which recovery would have been possible against the principal had there been authority. If, therefore, the forwarder would have had a claim against the principal but for the lack of authority of the agent, but in practice such a claim would have been unenforceable due to, for example, the insolvency of the principal, no substantial recovery could be made against the agent. The circumstances in which this can arise must be very limited and would most likely be resolved by basing a claim on the agent's personal liability, which would be available where the agency is not disclosed. Personal liability, in the absence of a breach of warranty, would not help the forwarder who is unable to use the conditions against the owner and in that case a recourse claim against the customer would be best based on one of the indemnities granted by clause 20.176

Furthermore, it may be arguable that where there is both a requester and a person 2.37 on whose behalf the business is undertaken,¹⁷⁷ within BIFA clause 1,178 then it is the latter person who is the customer and thereby the giver of the warranty.179 The difficulty therefore is that on finding the principal to be customer there may be no recourse against an agent who in the terms of clause 3 is not the customer and therefore gives no warranty. This might be resolved either by confining clause 1 to

^171. This ties in with the indemnity given in cl. 20, see, 2.249.

^172. Whether to create privity of contract or sufficient to bind the owner under a bailment on terms, see Palmer, p. 1259, paras 23–013 et seq. The existence of apparent authority should also defeat liability as is the case with the implied warranty of authority, Rainbow v. Howkins [1904] 1 KB 215, since the absence of actual authority would produce no loss.

^{173. [1997] 2} Lloyd's Rep 48 (CLCC Bus. List).

^174. See the definitions of owner given at 2C.1.

^175. Collen v. Wright, (1857) 8 E&B 647.

^176. See 2.249.

^177. Where there is both an agent, whether authorised or not, and a principal.

^178. See 2.19.

^179. A fortiori at law where the agent is in fact authorised.

where the agency is disclosed,¹⁸⁰ or by interpreting clause 1 to include both the agent and the principal as the customer¹⁸¹ or by treating the conditions as addressed to a ''customer'' who may be the agent but accepting that the law might also deem the principal authorising him to be a contracting party but not exclusively as the ''customer''.

2C.3.2 Authority of the owner

2.38 Clause 4 of BIFA 1989 Conditions which was deleted from the 2000 edition seeks to tie the owner and the consignee in addition to the customer to the conditions. It therefore provides additional parties to which claims for the forwarder's charges or other reimbursement can be addressed. The last sentence indicates that the forwarder will address the demand initially to the customer. Although the persons indicated also agree to accept the conditions on behalf of others such as their agents no express warranty seems to be given in that respect. Such ''acceptance'' therefore might therefore be ineffective yet without any further liability.
2.39 So far as action based on the liability of the customer is concerned, the success of the clause depends upon the customer in fact being authorised by the parties indicated to contract on their behalf or such parties otherwise being bound by the terms. The clause itself recognises that there will either be authority running from the owner to the customer or that the owner accepts a document.182 In the absence of authority it is difficult to see how the owner could be bound to the terms unless the conditions are incorporated into a document which confers contractual rights on a person other than the original contracting party. An example would be a bill of lading which is within the terms of the Carriage of Goods by Sea Act 1992 and transferred in such a way as to satisfy section 2 of that Act and thereby transfer the contract of carriage evidenced by the bill of lading.183
2.40 Alternatively the requirements necessary to create an implied contract may be satisfied.¹⁸⁴ Since the clause does not seek to confer a benefit on the persons indicated the Contracts (Rights of Third Parties) Act 1999 could not be employed to enforce it. Privity of contract, through one of the two ways just indicated or by a collateral contract, would be necessary to enable a liability, e.g. to pay freight to be enforced.¹⁸⁵ If, however, an owner were seeking to enforce a liability against the

^180. In which case the forwarder will get the benefit of the implied warranty at common law.

^181. As well as giving a warranty the agent would also accept a personal liability by accepting the conditions for himself in the terms of cl. 3.

^182. On its own terms, therefore, the clause implies that if neither is applicable the owner or consignee cannot be bound.

^183. See, generally, Carver on Bills of Lading, ch. 5.

^184. See Brandt v. Liverpool, Brazil and River Plate S.N. Co [1924] 1 KB 575; The Aramis [1989] 1 Lloyd's Rep 213. Cf The Captain Gregos (No. 2) [1990] 2 Lloyd's Rep 395; The Gudermes [1991] 1 Lloyd's Rep 456. See further Rights of Suit in Respect of Carriage of Goods by Sea, The Law Commission (No. 196) and the Scottish Law Commission (No. 130), 1991. See also in respect of legal assignment under s. 136(1) of the Law of Property Act 1925, Kaukomarkkinat O/Y v. ''Elbe'' Transport-Union GmbH (The ''Kelo'') [1985] 2 Lloyd's Rep 85 and N. Curwen, ''The Problems of Transferring Carriage Rights: An Equitable Solution'' [1992] JBL 245.

^185. If the case is within s. 2 of the Carriage of Goods by Sea Act 1992, the requirements of s. 3 of that Act would also need to be satisfied.

forwarder on the basis of a bailment on terms there might be an argument that reciprocity requires the owner to accept a possible liability along with it. A decision of the Court of Appeal suggests that a bailee is not permitted to pick and choose those terms which are most favourable to him but rather that all the terms on which the assumption of liability is based and which the owner consents to must be applied.¹⁸⁶ The same might arguably be true of the owner also.

The result that more than one person is liable to the forwarder could be effected 2.41 at common law on agency principles, the agent being liable either on a personal contract or on the basis of a warranty of authority. Clause 4 clearly envisages that the customer will be an agent and the owner the principal. Since it might be possible to regard the owner as the customer there may be some difficulty in applying the clause.

Since the customer and the owner will be in an agent/principal relationship the 2.42 dual personal liabilities could mean that the doctrine of election is applicable. The reference in the clause, however, to their liability being joint and several may be sufficient to displace the doctrine by removing the normal construction that the personal liabilities of principal and agent on the same obligation are alternative.187 An alternative argument might state that the clause is intended to create a collateral contract with the principal thus creating an independent obligation, but it is hard to see how a collateral promise on the part of a principal can be construed from the mere printed conditions when it is the agent who actually makes the contract. Other technical consequences of a joint and several liability, such as the effect of a release of one of the parties releasing the others188 would, however, apply.

Where the forwarder seeks to rely on the clause to obtain the protection of the 2.43 conditions or to exercise a right granted by them, the wording of this clause may prove problematic. This is because, whilst the owner is deemed to accept the conditions, he does not accept them qua customer. Consequently where a term refers only to the customer,¹⁸⁹ there will be difficulty in applying it to other parties. This will not be the case in respect of any liability of the customer under the conditions since the owner is expressly placed under the same liability.

2C.4 STATUS OF THE FORWARDER

BIFA 2005A, clause 4A and clause 6(B), BIFA 1989, clauses 5(B), 5(C) and 6, DAMCO 2.44 Standard Trading Conditions 2009, clauses 10 and 11, FIATA Multimodal Transport Bill of Lading (FBL)1992, clause 2.

(A) Subject to clauses 11 and 12 below, the Company shall be entitled to procure any or all of its services as an agent, or, to provide those services as a principal.
(B) The Company shall, on demand by the Customer, provide evidence of any contract entered into as agent for the Customer. Insofar as the Company may be in default of the

^186. Sandeman Coprimar SA v. TTI [2003] EWCA Civ 113, [2003] 1 All ER (Comm) 504, see at [65].

^187. See Bowstead and Reynolds on Agency, Art. 82.

^188. Per Nicholson v. Revill (1836) 4 A&E 675.

^189. E.g. BIFA, cl. 11, see 2.178.

obligation to provide such evidence, it shall be deemed to have contracted with the Customer as a principal for the performance of the Customer's instructions.¹⁹⁰

5. (B) The offer and acceptance of an inclusive price for the accomplishment of any service or services shall not itself determine whether any such service is or services are to be arranged by the Company acting as Agent or to be provided by the Company acting as a Contracting Principal.¹⁹¹
5. (C) When acting as an Agent the Company does not make or purport to make any Contract with the Customer for the carriage, storage, packing, or handling of any goods nor for any other physical service in relation to them and acts solely on behalf of the Customer in securing services by establishing Contracts with Third Parties so that direct contractual relationships are established between the Customer and such Third Parties.¹⁹²
6 When and to the extent that the Company has contracted as Principal for the performance of any of its services, it undertakes to perform and/or in its own name to procure the performance of those services, and subject always to the totality of these Conditions and in particular to Clauses 26–29 hereof accepts liability for loss of or damage to goods taken into its charge occurring between the time when it takes the goods into its charge and the time when the Company is entitled to call upon the Customer, Consignee or Owner to take delivery of the goods.¹⁹³
10. All Services are provided by the Company as agent, except in the following circumstances where the Company acts as principal:¹⁹⁴
- (a) to the extent that the Company expressly agrees in writing to act as a principal; or
- (b) where the Company is held by a court of competent jurisdiction to have acted as principal.
11. Without prejudice to the generality of clause 10:
190. This clause places an onus on the forwarder to give details of arrangements on demand or risk being considered a principal although his intention may be to act as agent. The extent to which the customer is kept informed of arrangements made on his behalf is a relevant factor in determining the status of the forwarder, see below 2.73.
191. The relevance of the method of charging to the issue of status is considered generally at 2.72. Clause 5(B), which has been deleted from the 2000 edition, seeks to exclude this as a factor so as to give the forwarder a free choice as to his charging method without the danger of unwittingly taking on a responsibility for performance (see also DAMCO, cl. 11(a) and TT CLUB 400, cl. 4 (a)). Nevertheless in Granville Oils & Chemicals Ltd v. Davies Turner & Co Ltd, (Leeds District Registry Mercantile Court, 21 October 2002 (summarised by David Martin-Clark, www.onlinedmc.co.uk)), despite the fact that BIFA 1989 terms were incorporated, Judge Behrens used the method of charging as one of the factors in deciding that the forwarder had contracted as principal (no appeal to the Court of Appeal was made on this point). The prices quoted by the forwarder, although broken down into the constituent services, included a mark-up on the prices quoted to the forwarder by their agents which were not disclosed to the customer. In choosing an inclusive price, however, the forwarder runs a risk that if he is held to be acting truly as an agent he could fall foul of the rule that forbids the making of a secret profit if the profit in the charge goes beyond what could be considered to be a reasonable commission. However, the Court of Appeal in Western Digital Corp v. British Airways Plc [2000] 2 Lloyd's Rep 142 saw the equivalent of cl. 5(B) as allowing for this possibility and not necessarily inconsistent with agency (see p. 148). Cf further, BIFA, cl. 9, 2.166, below).
1. This clause from the 1989 edition spells out the consequence of the forwarder acting as an agent. The existence of agency is determined by other means. The latter part of the clause makes clear that agency is meant in the proper sense. Clause 6 was its counterpart making clear that when the forwarder has agreed to act as a principal it undertakes responsibility for the service whether it performs it physically itself or engages another party to effect it, such other party then being a subcontractor of the forwarder (cf TT CLUB 400, cl. 42 and DAMCO STC, cl. 14), see further 2.52. Contrast the approach taken by cl. 23 of the 1981 IFF Conditions discussed below, 2.62. The liability of the forwarder is subjected to cll. 24–27 which apply a uniform liability in contrast to cl. 7.3 of the FIATA Model Rules which applies the applicable law or agreed or usual conditions (but subject to the standard limits of liability in cl. 8.3) of subcontractors to transport or other services provided by them.
- 193. See previous footnote.
- 194. See below fns 201 and 282.
(a) the charging by the Company of fixed Charges for any Services shall not in itself determine or be evidence that the Company is acting as an agent or a principal in respect of such Services;¹⁹⁵
(b) the Company acts as an agent where the Company procures a bill of lading, waybill or other document containing or evidencing a contract of carriage between a Person, other than the Company, and the Customer; and
(c) the Company acts as the Customer's agent and never as a principal when dealing with Authorities on behalf of the Customer in relation to customs requirements, taxes, licenses, consular documents, certificates of origin, inspection certificates, documentation management, and other similar services.
1. Issuance of this FBL¹⁹⁶
2.1 By Issuance of this FBL the Freight Forwarder
- a) undertakes to perform and/in his own name to procure the performance of the entire transport, from the place at which the goods are taken in charge (place of receipt evidenced in this FBL) to the place of delivery designated in this FBL;
- b) assumes liability as set out in these conditions.
2.2 Subject to the conditions of this FBL the Freight Forwarder shall be responsible for the acts and omissions of his servants or agents acting within the scope of their employment, or any other person of whose services he makes use for the performance of the contract evidenced by this FBL as if such acts and omissions were his own.

2C.4.1 Introduction to the roles of the forwarder

When carrying out the instructions of its customer the company may be acting in 2.45 one of several roles. In the few early cases which sought to express a view, the courts have reflected a traditional idea that the role of a forwarder is that of an agent.¹⁹⁷ Even so, at that time since forwarders might also engage in collection and delivery services organised around arrangements for primary movement by sea or rail, the forwarder's role might extend beyond mere agency and involve the forwarder coming into possession of the goods at least for part of the transit.198 Clearly, as this example shows, the forwarder might take different roles at different stages of a transport. Further, as noted earlier, the trend has long been towards forwarders taking on greater responsibilities due to the changing nature of modern transportation. In indicating an agency role the courts were mainly concerned to distinguish the role from that of a carrier particularly with a view to determining the level of responsibility undertaken. This will often be a crucial issue especially where, in taking on a responsibility beyond that of an agent, the forwarder is found to be subject to a compulsory regime of liability.¹⁹⁹ A separate though connected issue arises from the ambiguity inherent in the concept of agency. An agent in the strict sense at common law is a person empowered to affect his principal's legal relations.200 In civil law countries the concept of indirect representation is more

^195. See fn. 191.

^196. See below text to fn. 316.

^197. Jones v. European & General Express Co Ltd (1920) 4 Ll L Rep 127, C.A. Pisani & Co v. Brown Jenkinson & Co Ltd (1939) 64 Ll L Rep 340 at p. 342. See further Hill p. 15, Bugden, generally, ch. 1, esp. at para. 1–14, and Bristow, ''Freight Forwarder: Principal or Agent? What Difference does it Make?'' (1999) ABLR 196.

^198. Contrary to the view of Rowlatt J in Jones, above fn. 197.

^199. See 2.25.

^200. Bowstead, para. 1–018.

commonly accepted. While the internal relationship remains posited on agency principles, in the external relationship the agent acts as a principal.

2.46 This is readily applied to forwarders whose role is often seen as one of commission rather than strict agency. In English law neither this possibility nor the distinction between the level of responsibility and the creation of legal relations has been clearly developed. Whilst there might be a clear commercial distinction between physically supplying a service and being engaged to procure it from a third party, the precise legal distinctions which might need to be made are more difficult. As will become apparent from the discussion the tendency is to distinguish, in basic terms, the forwarder acting as an agent and acting as a principal. This distinction has developed over time and appears to conflate both of the issues identified above and thus to disguise further issues that need more subtle discrimination. Thus when considered to act as an agent the forwarder will commonly be taken to create privity of contract between his principal and a third party, as well as assuming the duties normally associated with an agency role. When acting as a principal, however, the forwarder may be assumed not to have affected the principal's legal relations with third parties and to have undertaken a higher level of responsibility. At the least this will be understood as involving responsibility for the performance of the third parties engaged by the forwarder. It does not follow necessarily that this does or should require the forwarder to be regarded as having the full responsibility normally attached to such a third party, most usually as a carrier, but it is commonly taken to so follow. Nor does this distinction acknowledge the more subtle possibility of indirect representation. The different possibilities are explored in greater detail below after a few further preliminary points.

2.47 Trading conditions in use in British practice tend to acknowledge this basic distinction between acting as an agent or principal and in some cases to provide for the forwarder to have a choice between them. BIFA, clause 4(A), purports to give the forwarder such a choice201 and implies that how the forwarder has exercised that choice is to be determined ex post facto. These or similar conditions may be used by companies marketing logistics services consequently giving a similar choice in respect of such services.202 As discussed below the courts use a variety of criteria to determine the role that the forwarder has contracted to perform. The application of these criteria²⁰³ may show that the forwarder has, in fact, contracted to perform in

^201. Compare TT CLUB 400, cl. 3 which indicates that the forwarder acts as an agent except in certain circumstances. Clauses 10 and 11 of the DAMCO STC reproduced at 2.44 provide a commercial example of this approach.

^202. As did the former P&O Nedlloyd Logistics STC, cl. 3(A) which provided for this liberty unless specifically agreed in writing. Compare the Example Contract for Third Party Logistics, which in cl. 8 provides for the liability of the forwarder in respect of loss or damage to the goods whether through its own or its servants or agents acts or omissions or that of a Service Provider. The Fenex Terms and Conditions for Value Added Logistics (cl. 8) provides for a similar liability. TT CLUB 600, cl. 16 provides for the liability of the Logistics Provider to be liable to the customer as a principal and requires the customer to assist in pusuing claims against third parties. It seems also that many companies marketing logistics services built around haulage or warehousing in the UK and basing their conditions on RHA or UKWA will tend to take on liability as a principal.

^203. Which can produce difficulties in analysis. In Vastframe Camera Ltd v. Birkart Globistics Ltd, a decision of the Hong Kong High Court [2005] HKC 117, a forwarder issued a bill of lading for a consignment of novelty cameras with a ''shrek'' insignia on them sent from Hong Kong to France. The goods had been sold to a buyer in France and were to be delivered only against production of the bill of

a particular way so that a free choice is not possible, applying J. Evans & Son (Portsmouth) Ltd v. Andrea Merzario Ltd. ²⁰⁴ Some of these factors (e.g. the method of charging) may also assist in determining whether the forwarder has, in fact, contracted to act for the shipper or is really the agent of the performing carrier as in James v. Europe West Indies Lines (UK) Ltd. 205

As indicated in Garnham, Harris & Elton v. Alfred W. Ellis Transport, 2.48 ²⁰⁶ such printed conditions do not necessarily constitute the whole contract and as stated further in that case (in the context of RHA Conditions) they are not drafted for a particular contract but designed for a variety of contracts. Furthermore, if the forwarder has, in fact, been found to have agreed to perform in a particular way then the choice given in the printed condition might well be caught by section 3 of UCTA. It may be possible, however, for the clause to be used to encourage the view that the contract is open and to be determined simply by the choice made by the forwarder. In English law a contracting party is still free to agree the extent of the service he is prepared to contract for and will only be regulated or constrained (whether by UCTA or by a compulsory regime of liability) if he seeks to reduce the level of liability that attaches to the service that he has, in fact, agreed to perform or has led the other party into believing that he has agreed to perform.²⁰⁷

If the forwarder is found to have contracted in a particular way it may still be 2.49 necessary to go further and determine whether the actual mode of performance is within the scope of the contract. Thus if the forwarder has agreed to accept responsibility for the performance of a service the question may still arise whether the forwarder is restricted to physically performing the service himself or may subcontract. Similar criteria to that applied to carriers by road may well be applied,208 although any knowledge that the customer has209 that the company is a forwarder could be a strong indicator that, as its role is normally to procure third party services, it is implied that it can do so. On the other hand, if the forwarder is contracting purely as an agent, the question might arise as to whether he may choose to perform some part of the operation himself. In Immediate Transportation Co Ltd v. Speller, Willis & Co, ²¹⁰ while held free so to act, the forwarder was not entitled to charge so as to make a profit over and above the least cost to get the work

lading. The forwarder shipped them with the Mitsui Line and received a non-negotiable waybill naming the forwarder as Shipper and consigned to a French company which had a cooperation agreement with the forwarder. The French company obtained the goods but then delivered them to the buyer without production of the forwarder's bill of lading. The buyer then refused to pay for the goods. The court held the forwarder liable for the misdelivery. The forwarder had claimed it was acting only as an agent whereas the court decided it was liable as a carrier. However, it is arguable that even as an agent it should have been liable as the French company could have been regarded as a sub-agent rather than a completely independent third party.

^{204. [1976] 1} WLR 1078, [1976] 2 Lloyd's Rep 165.

^205. CA, 8 October 1997, unreported.

^{206. [1967]} WLR 940 at p. 945, [1967] 2 Lloyd's Rep 22 at p. 27.

^207. See Claridge, Holt & Co Ltd v. King & Ramsay (1920) 3 Ll L Rep 197 and see Treitel, pp. 273–4, 7–068—069. See also (in respect of the Hague Rules) Pyrene v. Scindia Navigation [1954] 2 QB 402, [1954] 1 Lloyd's Rep 321.

^208. See Garnham Harris, fn. 206, above; cf John Carter v. Hanson Haulage [1965] 1 QB 495, [1965] 1 Lloyd's Rep 49; Homecraft Weavers Ltd v. George Ewer & Co Ltd (1945) 78 Ll L Rep 496.

^209. Perhaps through the marketing of the service.

^{210. (1920) 2} Ll L Rep 645.

done. In the Australian decision of Carrington Slipways Pty Ltd (The Cape Comorin), ²¹¹ a forwarder, authorised to secure shipping space and to obtain a bill of lading as an agent was said212 to be unauthorised to contract as a principal for the carriage of goods. In particular the forwarder was not entitled to make a secret profit by contracting as a principal with its customer at one freight rate and subcontracting at a lower rate.

2.50 The discretion granted by clauses such as BIFA clause 4(A) may be sufficient to give freedom to the forwarder to effect services himself and to charge for it especially as clause 5(B) indicates that an inclusive price is not necessarily indicative of acting as a principal. Further clauses give liberties when acting as an agent or principal,²¹³ but logically these apply only once the choice to act in a particular capacity has been made. The issue which arises here is really one of conflict of interest and normally an agent is constrained by fiduciary duties to act in the principal's interest.²¹⁴ Some clauses seek specifically to negate the effect of such a duty.215 It has been suggested that in the usual nature of the relationship of the freight forwarder to his customer, very little in the way of fiduciary duties would be owed.216 Nevertheless, the position is not entirely clear. Forwarders will often wish to be free to provide services themselves with a view to direct profit, or to use closely associated companies, or to provide services on the basis of a network of close alliances with other companies which might not operate on a strict agency basis. This possibility is enhanced with the wider role that may be taken in providing logistics services. As noted in Chapter 1,²¹⁷ some logistics operators seek to distance themselves from a mother company in order to appear to be maintaining an independent role. It should not perhaps be assumed that forwarders and others are free to act without regard to the need to inform the customer of an interest or without regard to the customer's interests. Nor does it necessarily follow, although it may be arguable, that there is a strong implication that the discretion awarded by BIFA clause 4(A) gives such freedom to the forwarder. Clause 5 is stronger but, as noted, logically applies only after the choice to act as a principal has been made. However, and on the other hand, in the more modern context of logistics contracts, the nature of such contracts may reveal a greater focus on the result produced by the agreed package of services leaving the forwarder with a wide degree of discretion provided that the requisite performance level is satisfied.

2.51 The more usual question is to determine the level of responsibility that the forwarder has undertaken. BIFA clause 4(B) and clauses 11 and 12 seek to influence or determine the answer to this question. The role they play will be discussed further below but it is necessary to outline in abstract the varying possibilities to lend depth to the points made above. This is important not least

^{211. (1991) 24} NSWLR 745 (CA NSW).

^212. At p. 753.

^213. See below, 2C.6 and 2C.7.

^214. See generally, Bowstead, Art. 43, paras 6–032 et seq. See also Bugden p. 49, 2.44 et seq.

^215. BIFA, cl. 9 permitting the forwarder to retain brokerages etc., see below 2.166.

^216. Bugden, in the 1st edn (1999), p. 38, after citing Lord Wilberforce in New Zealand Netherlands Society ''Oranje'' Inc v. Kuys [1973] 1 WLR 1126, at pp. 1129–1130, where it is indicated that the precise scope of such duty must be moulded to the nature of the relationship between principal and agent. 217. 1.25.

because the conditions may not be incorporated in respect of the particular transaction but also because a court may well consider the common law position first before considering the conditions and, perhaps, be led to the conclusion that the contract is wider than the printed conditions.218

2C.4.2 The different roles in detail

(i) A forwarder may have placed himself in the position of a principal in relation to 2.52 his client.²¹⁹ This will clearly be the case if he actually performs an operation himself or through his servants. As subcontracting is usually a possibility, a forwarder may be considered to have undertaken to perform by himself or by a subcontractor. This is commonly the case in respect of carriage by road where a forwarder is providing a collection or delivery service as part of a more complex movement²²⁰ and is classified as a carrier although operating through a subcontractor.221

In more complex movements it is common to classify the forwarder as a carrying 2.53 or transportation contractor undertaking an obligation personally to procure that the goods are carried.222 In such situations where the forwarder is understood to have accepted responsibility for performance of the operation he may be said to have agreed to effect carriage rather than arrange it.²²³

Where the forwarder is considered to have undertaken to effect carriage he is 2.54 likely thereby to be classified as a carrier. Classification as a carrier will often subject the forwarder to compulsory regimes of liability applicable to carriers, especially contracting carriers. This is especially the case in respect of the CMR Convention.224 Once subjected to such a regime any attempt to reduce the forwarder's liability, for example to that of an agent, by means of trading conditions will fail. The forwarder is likely to be classified as a carrier for these purposes whenever the position is that he is understood to have contracted personally to procure the whole of the relevant carriage.

^218. See Garnham Harris, fn. 206, above. See also Eastern Kayam Carpets Ltd v. Eastern United Freight Ltd, QBD, 6 December 1983, unreported.

^219. See Hill, p. 155.

^220. Whether organised by the forwarder or linking to a pre-arranged operation.

^221. See L. Harris (Harella) Ltd v. Continental Express and Burns Transit Ltd [1961] 1 Lloyd's Rep 251, Colverd & Co Ltd v. Anglo Overseas Transport Co Ltd [1961] 2 Lloyd's Rep 352, cf Date & Cocke v. G.W. Sheldon & Co (London) Ltd (1921) 7 Ll L Rep 53.

^222. See Salsi v. Jetspeed Air Services [1977] 2 Lloyd's Rep 57 at p. 60; Landauer & Co v. Smits & Co (1921) 6 Ll L Rep 577 at p. 579; Lynch Bros. v. Edwards & Fase (1921) 6 Ll L Rep 371; J. Evans & Son (Portsmouth) Ltd v. Andrea Merzario Ltd [1976] 1 WLR 1078 at p. 1082, [1976] 2 Lloyd's Rep 165 at p. 168, and [1975] 1 Lloyd's Rep 162 (QBD) at p. 168. See further Holloway, ''Troubled Waters: The Liability of a Freight Forwarder as a Principal under Anglo-Canadian Law'' (1986) 17 JMLC 243 and also Hill, ''Forwarding and Sub-contracting Complications'' [1976] LMCLQ 63.

^223. See per Beattie J, EMI (New Zealand) Ltd v. Wm Holyman & Sons Pty Ltd and Another (The Maheno) [1977] 1 Lloyd's Rep 1 at p. 4, [1976] 2 NZLR 567 at p. 572 (New Zealand Sup Ct).

^224. See e.g. Ulster Swift v. Taunton Meat Haulage [1977] 1 WLR 625, [1977] 1 Lloyd's Rep 346. See further Clarke, para. 10a, and Hill and Messent, paras 1.13 et seq. In respect of carriage by air, see Shawcross & Beaumont, vii (65), and ''The Freight Forwarder as an Air Carrier'', D. Schoner [1980] 1 Air Law 2.

2.55 There exists, however, the possibility of finding that the forwarder is a substitutional bailee.²²⁵ This does not fit the more usual simple contrast which is made between the forwarder acting as principal performing or effecting carriage and as agent creating privity of contract between the forwarder's customer and the performing carrier. The conclusion that tends to follow from this contrast is that a finding that the forwarder is not an agent creating privity of contract, or that the forwarder is acting as a principal, means that the forwarder has agreed to effect carriage.226 Evans J in M. Bardiger Ltd v. Halberg Spedition Aps, ²²⁷ however, indicated that there is nothing in principle which compels the conclusion that unless the forwarder contracts as a carrier he must thereby be authorised to act as an agent, with corresponding duties as to remuneration and to account. This suggests that a forwarder can take a position as a principal, and presumably thereby not effect the creation of privity of contract between his customer and a carrier without thereby being considered to have taken on the responsibility of a carrier. His undertaking is not to carry the goods nor assume the liabilities of a carrier, but to make suitable arrangements for the carriage at his own expense. In Aqualon (UK) Ltd v. Nilsson International B.V.,²²⁸ Mance J accepted that it was possible for a contractor to undertake such an intermediate role but this did not mean that such a role was either likely or lightly to be inferred. A finding that a contracting party was intended to fulfil an intermediate role of this nature must be supported by evidence demonstrating clearly that this was the intention.229
2.56 Before leaving this first possibility, it should be noted that complex movements can involve the forwarder having a role covering a variety of modes of transport. This can produce the effect that, whilst the overall role of the forwarder is to act as a principal, the intention may be to create privity of contract in respect of a particular mode. This is especially true where carriage by sea is involved because of the prominent role of bills of lading.²³⁰
2.57 (ii) The forwarder may contract in the more traditional role of being an agent, i.e. contracting to arrange carriage.²³¹ This is commonly associated with a finding that privity of contract exists between the customer and the actual carrier.²³² On the other hand a finding that the forwarder contracts as a principal towards his customer leads normally to the conclusion that no privity of contract exists between the forwarder's customer and the actual carrier.233 It has been suggested that there is no

^225. See further below and cf Kala Ltd v. International Freight Services (UK) Ltd, QBD, 7 June 1988, unreported (cf Inco Europe Ltd v. First Choice Distribution [1999] 1 WLR 270, [1999] 1 All ER 820) and M. Bardiger Ltd v. Halberg Spedition Aps, QBD, 26 October 1990, unreported.

^226. See e.g. Hair and Skin Trading Co Ltd v. Norman Airfreight Carriers Ltd [1974] 1 Lloyd's Rep 443; Tetroc Ltd v. Cross-Con (International) Ltd [1981] 1 Lloyd's Rep 192; Elektronska Industrija Oour TVA v. Transped Oour Kintinentalna Spedicna [1986] 1 Lloyd's Rep 49.

^227. Above, fn. 225.

^{228. [1994] 1} Lloyd's Rep 669.

^229. Such an intermediate role may be what was contemplated by the Court of Appeal in Inco Europe Ltd v. First Choice Distribution, see below, 2.65.

^230. See e.g. Coli Shipping (UK) Ltd v. Andrea Merzario Ltd [2002] 1 Lloyd's Rep 608.

^231. See The Maheno, fn. 223.

^232. See e.g. in respect of CMR, Moto Vespa SA v. M.A.T. (Britannia) Express [1979] 1 Lloyd's Rep 175. In this case the customer was held entitled to sue as an undisclosed principal.

^233. See e.g. Lee Cooper Ltd v. C.H. Jeakins & Sons Ltd [1967] 2 QB 1 [1964] 1 Lloyd's Rep 300.

reason for these to be exclusive alternatives.234 This view receives support from the decision of the New South Wales Court of Appeal in Carrington Slipways Pty Ltd v. Patrick Operations Pty Ltd (The Cape Comorin). ²³⁵ The absence of privity seems, however, to be the natural assumption and appears to be made in the current BIFA Conditions. Nevertheless as in (iii) below it is perfectly possible on principles of agency for a forwarder to give a guarantee to his principal whilst additionally having authority to create privity of contract between his customer and the actual carrier. Conversely it is possible for a forwarder, as an agent, to create privity but additionally to accept a personal responsibility to the actual carrier. This is clearly recognised in some circumstances.²³⁶ Nevertheless a forwarder's acceptance of responsibility towards a third party without disclosing agency will tend to militate against a finding that privity of contract has been established.237

The common situation where the forwarder is acting as agent may be stated to be 2.58 that of the forwarder acting as agent for the customer when engaged to arrange sections of a transit. He may, however, be employed in the capacity of agent for an actual operator, as where the forwarder is also a ship's agent.238 In relation to a movement of goods, therefore, the forwarder may act as agent for the customer in respect of one segment and agent for a carrier in respect of another segment or for different parts of the process of preparation for shipment.239 Terminal operations in modern shipping often involve the terminal operator acting in part on behalf of shipowner and on behalf of the shipowner's customer.240 A further common arrangement is for the forwarder to perform or effect a period of land carriage as a principal, for delivery to or collection from a carrier by air or sea, such air or sea carriage either being arranged by the forwarder or under other arrangements.241 Such arrangements can give rise to problems of demarcation. An illustration from the US is Pacific Tall Ships Co v. Kuehne and Nagel Inc. ²⁴² A forwarder's negligent advice to a shipper to fumigate a cargo was held to fall within an agreement between the forwarder and the shipowner for the forwarder to ''solicit and secure conventional and containerised cargo for transport by the Principal''. This created the

^234. Palmer, p. 1312, 23–058, in the sense of an intermerdiary having continuing responsibility for a subcontractor alongside the existence of a contract between the owner and the subcontractor.

^{235. 14} November 1991, unreported. See further below and [1992] 1 LMCLQ 32.

^236. See, e.g., Anglo Overseas Transport Co Ltd v. Titan Industrial Corp (UK) Ltd [1959] 2 Lloyd's Rep 152, see, below, 2.261. Cf TICC Ltd v. COSCO (UK) Ltd [2001] EWCA Civ, 1862, [2002] CLC 346, (2001 WL 1476256 (CA)). Cf also Coli Shipping (UK) Ltd v. Andrea Merzario [2002] 1 Lloyd's Rep 608, where one forwarder was held to have accepted a personal responsibility to the forwarder instrumental in effecting the carriage, in respect of vehicle demurrage. Their relationship was that of principals and no privity of contract was established between the first forwarder's customer and the second forwarder. The fact that parallel privity of contract existed between the customer (as shipper) and the shipowner did not affect the second forwarder's title to sue the first. A further possibility is for the forwarder's role to be simply that of channelling payment to transport suppliers as in Maersk Air Ltd v. Expeditors International (UK) Ltd [2003] 1 Lloyd's Rep 391.

^237. See below 2.75 and 2.78.

^238. Cf, however, Center Optical, below, 2.94.

^239. See Heskell v. Continental Express Ltd and Another (1950) 83 Ll L Rep 438. Cf in respect of landing: C.A. Pisani & Co Ltd v. Brown Jenkinson & Co Ltd (1939) 64 Ll L Rep 340.

^240. See e.g. Neptune Orient Lines Ltd v. J.V.C. (UK) Ltd (The Chevalier Roze) [1983] 2 Lloyd's Rep 438.

^241. See L. Harris and The Maheno, fn. 223, above.

^{242. [2000]} AMC 866 (ND Ill. Eastern Div).

possibility of liability of the shipowner to the shipper since the advice related to the shipowner's obligation to ensure that containers shipped on its vessel complied with US Customs regulations.

2.59 The possibility that the forwarder may take differing roles in the course of a whole movement of goods may naturally be seen as involving substitutional or springing bailment, as opposed to sub-bailment or quasi-bailment.²⁴³ The forwarder who has undertaken to perform throughout the transit retains his responsibility (whether as a bailee or quasi-bailor).244 The forwarder who acts as bailee for part of the transit and then hands the goods to another under arrangements made by the forwarder or otherwise may well be considered to have relinquished his liability for the remainder of the transit. It appears to be possible for this to be true even where no privity of contract is established between the customer and the substituted bailee.245 Even if a continuous liability is relinquished the disposition to the secondary bailee must nevertheless be authorised and the secondary bailee must be chosen with reasonable care.246 A similar issue can arise in respect of bills of lading, especially in the context of through transport.247
2.60 The position might be explained on the basis that a bailee cannot normally expect to divest himself of his responsibility towards the goods unless proper arrangements for their continuing custody have been made and his contract is likely to be construed accordingly.248 That is, unless the duty has been clearly excluded.249 Such a duty is clearly applicable where the forwarder acts as an agent in the normal sense.²⁵⁰ Recent authority seems to confirm that it is implied also where the forwarder is acting as a principal in the sense accepted in Bardiger. ²⁵¹ In East West Corp v. DKBS 1912, ²⁵² Mance LJ²⁵³ accepted that it was clear in principle that, even in circumstances where a bailee is authorised to subcontract on the basis that he will thereafter have no personal responsibility, the cessation of his responsibility may depend not merely on his making a subcontract of the authorised kind but also upon his exercising due care in the selection of the subcontractor. This included a duty to

^243. See Palmer, p. 1247, 23–006, n. 39.

^244. See below, 2.103.

^245. See Bardiger, fn. 225, above, and Palmer, p. 1247, 23–006, who there cites The Maheno [1976] 2 NZLR 566 and Swiss Bank Corp v. Brink's-MAT Ltd [1986] QB 853, [1986] 2 Lloyd's Rep 79, although in the former case Beattie J (at p. 574) clearly envisages the forwarder as acting as agent for the customer in respect of the sea carrier.

^246. Palmer, p. 1303, 23–051, (this statement made in the 2nd edn, p. 1346 was cited by Mance LJ in East West Corp v. DKBS 1912 [2003] EWCA Civ 83, [2003] 1 All ER (Comm) 525 at 549). Palmer cites Garnham, Harris, fn. 206, above, and James Buchanan & Co Ltd v. Hay's Transport Services Ltd [1972] 2 Lloyd's Rep 535, both cases involving admitted carriers subcontracting part of the operation, the basis of liability used by the judge in the latter case being unnecessary (in respect of the customer) in light of the non-delegable duty of a bailee or quasi-bailee, see Metaalhandel J.A. Magnus BV v. Ardfields Transport Ltd [1988] 1 Lloyd's Rep 197. See also B.R.S. Ltd v. Arthur V. Crutchley & Co Ltd [1968] 1 All ER 811, [1968] 1 Lloyd's Rep 271 (and see Mance LJ in East West Corp, above).

^247. See 3.33.

^248. Cf Port Jackson Stevedoring Pty Ltd v. Salmon and Spraggon (Australia) Pty Ltd (The New York Star) [1981] 1 WLR 138 at p. 147, [1980] 2 Lloyd's Rep 317 at p. 324.

^249. See below, fn. 256.

^250. See generally, 2C.5.4.

^251. See above, fn. 225.

^{252. [2003]} EWCA Civ 83, [2003] 1 All ER (Comm) 525.

^253. At p. 549 and citing Palmer (2nd edn), at p. 1346.

ensure that any sub-bailment that is made reflects the basis of the bailment arrangement which the bailee has, by voluntarily taking possession, accepted. The principle was applied in the context of a bailee (or sub-bailee) not in a contractual relationship with a bailor. Such a duty may be doubted, or simply not be applicable to the same extent, where the transfer to the secondary bailee is under arrangements made by the customer or as directed by him.254

A substitutional bailment might well be created contractually, in effect by means 2.61 of trading conditions where, for example, the forwarder contracts to be liable only where the goods are in his actual custody and control as, for example, was the case under clause 13(i), 1974 edition, IFF Conditions. Here the forwarder might be considered to be acting as a principal towards his customer but, whilst agreeing to effect transport by others, he does not agree to accept contractual responsibility for its performance. However, such conditions might be considered equally consistent with the view that the forwarder has, by undertaking to effect transport whether by himself or others, accepted a contractual responsibility as a carrier but subject to the protection that his trading conditions give him as in Troy v. Eastern Company of Warehouses. ²⁵⁵ Such contractual terms would give way to a compulsory regime of liability and might be expected to be subjected to application of the test of reasonableness in UCTA.256 In Keeton Sons and Co Ltd v. Carl Prior Ltd, ²⁵⁷ however, the Court of Appeal accepted the reasonableness of a clause excluding the liability of the forwarder except where the goods were damaged whilst in the forwarder's custody. The court emphasised the fact that the forwarder's customer knew that the forwarder contracted on terms which included exclusion clauses, were content to assume that they would be in common form without examining them and that they would look, in the event of any damage, to their insurers. The court did not engage in an analysis of the undertaking of the forwarder. Such an analysis might well be thought relevant in view of the risk to which a forwarder's customer may be exposed if there is no contractual redress against those performing the carriage.

Some trading conditions seek to point a court towards a finding in favour of a 2.62 substitutional bailment by indicating that a forwarder may contract as a principal but without undertaking liability as a carrier.²⁵⁸ This can be linked with a view that the nature of the forwarding trade does not require there to be an implied term that a forwarder will accept a responsibility for the acts of those performing carriage.259 Whilst this possibility was accepted in Bardiger, ²⁶⁰ it may be doubted whether this

^254. Cf Butterworth v. Brownlow (1865) 19 CBNS 409, 144 ER 845.

^{255. (1921) 8} Ll L Rep 17.

^256. As would more clearly be the case where the forwarder seeks to exclude the duty of care in respect of the selection of the subcontractor.

^{257. [1986]} BTLC 30.

^258. See cl. 23 of the 1981 edn of IFF Conditions and cll. 2 and 3 of FIATA FCT. See also the clause referred to in Bardiger, fn. 225, above.

^259. See Hill, p. 159 and Palmer, p. 1312, 23–058. This is based in part on a view of Harris, fn. 221 above, although in that case it was clear that the forwarder was contracting as a carrier but was protected by his exclusion clause (the apparent distinction with Colverd, above, being really due to an atypical application in this latter case of the principles of vicarious liability, cf Palmer, pp. 497–8, 7–033—7–034).

^260. Above, fn. 225.

will be the case in most cases.²⁶¹ Unlike the commission merchant²⁶² there does not appear to be the same commercial recognition of the forwarder's contract as being one of commission. Rather the forwarder is more likely to be viewed as an independent retailer of wholesale carriage service.²⁶³ Indeed, in Bardiger, the contract does not appear to have been viewed as one of commission in the usual sense since there was considered to be no duty to account on the part of the forwarder.264

2.63 In Bardiger, ²⁶⁵ Evans J was prepared to accept that a forwarder organising a groupage service was not operating under a true agency. He considered that in determining the relevant status weight is to be given to the nature of the business of the contracting party to the knowledge of the other party. Here the fact that it was not contemplated that the forwarder would carry the goods and the relationship of the forwarder to the selling organisation were material. Unlike the use made of the contract of commission on the continent266 the absence of a clear understanding of this leads to the possibility that the implications of such an arrangement will not be understood by those contracting with forwarders. The lack of a contractual link with the performing carrier may leave the customer exposed to risks not fully appreciated especially where the protection of compulsory regimes of liability is expected to be available. It is noteworthy that in Bardiger it was considered that the forwarder's customer as sender would still have the rights available to him under the CMR Convention against the performing carrier, even in the absence of a contractual relationship with that carrier, by virtue of section 14(2) of the Carriage of Goods by Road Act 1965. It would seem doubtful that section 14(2) was intended to create statutory contractual links except as a matter of interpretation of the Convention. It is doubtful that the plaintiff could have contractual rights as sender without some contractual link²⁶⁷ but since he was named as consignee this would have provided the necessary contractual link for the purposes of the Convention. In Aqualon (UK) Ltd v. Nilsson International B.V. ²⁶⁸ Mance J expressed doubts about the view of Evans J in Bardiger in similar terms.269
2.64 Furthermore the need to support the application of such compulsory rules and to safeguard against the evasion of them may tend to militate against a finding that the forwarder has not undertaken a responsibility as a carrier.²⁷⁰ The growing acceptance in this country of the professional quality to be expected of the forwarder's role embodied in the concept of his being a transportation contractor appears to be reflected in the current BIFA Conditions which appear to accept the more basic distinction between the forwarder acting as an agent in the usual sense and acting

^261. See the view of Mance J in Aqualon noted above at 2.55.

^262. See Schmitthoff, p. 770.

^263. See The Freight Forwarder: A Report on the Working Party on Forwarders, NEDO, 1970, p. 1 and Hill, p. 64.

^264. Cf Bowstead, p. 10, 1–020, and see further Reynolds (1978) 94 LQR 224.

^265. Above fn. 225.

^266. See Hill, pp. 50 et seq.

^267. See Clarke, para. 41a(i).

^268. Above, fn. 228.

^269. See further Hill and Messent, para. 1.41.

^270. See Glass, ''CMR: Putting Practice into Theory'' [1984] LMCLQ 30.

as a principal in the sense of accepting a continuing liability in respect of the goods.

Nevertheless, whilst not entirely clear, a recent decision of the Court of Appeal 2.65 might suggest that an intermediate position in the role of a forwarder can be recognised. In Inco Europe Ltd v. First Choice Distribution, ²⁷¹ it was held that the plaintiffs had failed to prove that forwarders operating on Fenex general conditions272 were contracting as carriers. The evidence showed no more than that they were acting as forwarders. It was noted that the trading conditions were intended to be governed by Dutch law and that the tenor of them is that the forwarder is primarily intended to be an agent. It was unclear whether the court regarded this agency in the usual sense of creating privity of contract between the forwarder's customer and the physical carrier. Under Dutch law no privity of contract is created, but the forwarder's customer has the protection of a right of assignment under the New Civil Code²⁷³ which is reproduced in Clause 16(4) of the Fenex conditions.

(iii) The forwarder may act as an agent but warrant a particular part of the 2.66 performance, e.g. that carriage could be carried out at a certain rate per ton.274

2C.4.3 Criteria determining status

The criteria used by the courts to determine the status of the forwarder can now be 2.67 considered and trading conditions considered in light of them. It has been said that the matter is one of impression.²⁷⁵ It may be said that some of the criteria used by the courts are directed at finding the intentions of the parties and some are used as a means of discovering the actual role adopted by the forwarder. Furthermore the criteria may be confused in that it may be unclear as to which question they are directed. This may be a simple contrast between agency and responsibility as a carrier. Alternatively they are capable of being relevant to the more complex questions of whether the forwarder has contracted as a principal but without accepting responsibility as a carrier or even has contracted as a carrier but is also acting as agent in making the shipment.²⁷⁶

The criteria can be analysed as follows:277

^{271. [1999] 1} WLR 270, [1999] 1 All ER 820.

^272. The conditions of the Netherlands Association for Forwarding and Logistics.

^273. NBW, s. 8.2.3.3–2.

^274. Harlow & Jones v. P.J. Walker Shipping & Transport [1986] 2 Lloyd's Rep 141.

^275. Hair and Skin Trading Co v. Norman Airfreight Carriers [1974] 1 Lloyd's Rep 443 at p. 445, Tetroc v. Cross-Con (International) [1981] 1 Lloyd's Rep 192 at p. 198.

^276. As appears to have been contemplated by the Court of Appeal in Cho Yang Shipping Co Ltd v. Coral (UK) Ltd [1997] 2 Lloyd's Rep 641.

^277. Note their use in other contexts, e.g. in respect of whether a towage contract was made by a party acting as a principal or as an agent: Lukoil-Kaliningradmorneft plc v. Tata Ltd and Global Marine Transportation Inc [1999] 2 Lloyd's Rep 129. Compare the criteria listed by Mance J in Aqualon (UK) Ltd v. Vallana Shipping Corp [1994] 1 Lloyd's Rep 669 at p. 674 in the context of the CMR Convention. He indicates: (a) the terms of the contract and the nature of the instructions given; (b) any description used or adopted in relation to the contracting party's role; (c) the course of dealing; (d) the nature and basis of charging; and (e) the nature and terms of any CMR note issued.

2.68 (a) The terms of the contract and the language used surrounding the transaction

The printed terms may be considered to be sufficiently clear as in Victoria Fur v. Roadline, ²⁷⁸ where a clause stated that British Airways acted only as agents in respect of on-carriage by road. BIFA Conditions currently make a basic distinction between the forwarder acting as an agent and as a principal and some clauses are expressly applicable to one activity or the other.279 Clauses 11 and 12 of the current BIFA Conditions, however, make clear that in the case of insurance,280 and delivery of goods against documents,²⁸¹ the forwarder agrees to act only as an agent.282

2.69 Whilst not necessarily conclusive, such clear clauses may be a powerful consideration in favour of agency.²⁸³ In Center Optical (Hong Kong) Ltd v. Jardine Transport Services (China) Ltd, ²⁸⁴ however, a forwarder who was held to have acted as a carrier²⁸⁵ in respect of carriage by sea from Shanghai to Miami, was unable to establish that an agent effecting delivery of the goods without production of a bill of lading was acting on behalf of the customer rather than the forwarder. A clause in the contract of carriage stated that ''the merchant constitutes the carrier as the merchant's agent to enter into contracts on behalf of the merchant with others for transport, storage, handling or any other service in respect of the goods . . . subsequent to discharge''. This clause was held to be contradicted by evidence of a profit-sharing arrangement between the forwarder and the agent along with other evidence that the agent was regarded as the agent of the forwarder. It may, perhaps, be suggested that such a clear clause provides a presumption of agency unless contradicted by the facts. The mere fact that trading conditions refer to the forwarder generally as an ''agency'' or as forwarding agents is not in itself a sufficient indication of agency.286 The trading terms will be treated as neutral, indicating that sometimes the forwarder acts as a principal and sometimes as an agent.²⁸⁷ In Elektronska Industrija Oour TVA and Another v. Transped Oour Kintinenyalna Spedicna and Others, ²⁸⁸ it was noted in the context of the CMR Convention, however, that the 1974 IFF Conditions (as do current conditions) contemplate a potential liability as bailees or carriers which suggests that such terms are even more neutral. Contrast also Marston Excelsior v. Arbuckle, Smith & Co, ²⁸⁹ where Phillimore LJ, in referring to the forwarder's notepaper which described them as, inter alia, forwarding agents, said that there was not a word there to suggest that they act as carriers. It may be

^{278. [1981] 1} Lloyd's Rep 443.

^279. The 1984 Conditions, Geologistics GTC and TT CLUB 400 Conditions divide the conditions up into sections containing common conditions and sections dealing specifically with the situation where the forwarder is acting as an agent and where he is acting as a principal.

^280. See 2.178.

^281. See 2.187.

^282. Cf TT CLUB 400, cl. 4(D), DAMCO STC, cl. 11(b) reproduced at 2.44.

^283. Cf TT CLUB 400, cl. 3, which suggests a presumption of agency, but see cl. 18.

^{284. [2001] 2} Lloyd's Rep 698 (HK HC).

^285. See below, 2.94.

^286. L. Harris (Harella) Ltd v. Continental Express and Burns Transit Ltd [1961] 1 Lloyd's Rep 251 and Lee Cooper Ltd v. C.H. Jeakins & Sons Ltd [1967] 2 QB 1. See also Tetroc Ltd v. Cross-Con (International) Ltd [1981] 1 Lloyd's Rep 192 at p. 196.

^287. Singer v. Tees & Hartlepool Port Authority [1988] 2 Lloyd's Rep 164 at p. 167.

^{288. [1986] 1} Lloyd's Rep 49 at p. 52.

^{289. [1971] 2} Lloyd's Rep 306 at p. 311.

clear from the terms of some forwarders and many logistics operators that they anticipate a principal or carrier liability.290 There may even be a direct statement to this effect either in a transport document itself,²⁹¹ or in the standard trading conditions making reference to such a document.292

Apart from the printed terms, the language used surrounding the creation of the 2.70 transaction is relevant. For example, requesting that the forwarder ''arrange carriage'' might be more indicative than requesting him to ''carry'' the goods but this in itself was not treated as a strong factor in Tetroc v. Cross-Con (International) Ltd.²⁹³ Nevertheless the whole of the correspondence between customer and forwarder may be sufficient to point one way or the other.294 The language used by a party when dealing with a dispute arising out of a transaction may provide evidence of capacity as in Texas Instruments Ltd v. Nasan (Europe) Ltd, ²⁹⁵ where a party's reference to himself as ''carrier'' was an admission of responsibility as ''first carrier'' under the CMR Convention.

In addition to the evidence provided by terms and language used directly in 2.71 respect of the particular transaction there may be indirect evidence of the status assumed by the forwarder in light of the impression given by advertising or promotional material. Geologistics GTC, clause 2(iv) provides for liability as a principal where the company holds itself out as the operator of a regular line or service. This performs a similar function to where the forwarder issues a ''carrier'' document296 but might also direct attention to promotional material advertising a scheduled service. The way the forwarder has advertised or promoted his service has figured in case-law to a limited extent to date.297 This should be an important factor in determining the customer's reasonable belief as to the forwarder's capacity. This belief ought to be central since the question of an ''agent's'' status ought to be determined by the objective intention surrounding the grant of authority by the principal.²⁹⁸ The nature of the forwarder's business to the knowledge of the customer was emphasised in M. Bardiger Ltd v. Halberg Spedition Aps. ²⁹⁹ Geologistics GTC, clause 2(iv), emphasises the ''holding out'' by the forwarder,300 and

^290. See fn. 6.

^291. As in cl. 2 of the FIATA Multimodal Transport BL (FBL), reproduced above at 2.44.

^292. By reference, e.g., to the issue of a bill of lading as carrier.

^{293. [1981] 1} Lloyd's Rep 192 at p. 196. Cf Inco Europe Ltd v. First Choice Distribution [1999] 1 WLR 270, [1999] 1 All ER 820.

^294. Marson Excelsior v. Arbuckle, Smith & Co [1971] 2 Lloyd's Rep 306 at p. 309.

^{295. [1991] 1} Lloyd's Rep 146.

^296. See 2. Cf TT CLUB 400, cl. 2(B).

^297. See Landauer v. Smits, (1921) 6 Ll L Rep 577 at p. 578, Luigi Riva di Fernando v. Simon Smits Co. Ltd (1920) 2 Ll L Rep 279, and Claridge, Holt & Co v. King & Ramsay (1920) 3 Ll L Rep 297.

^298. Cf Singer v. Tees & Hartlepool Port Authority [1988] 2 Lloyd's Rep 164, at p. 167, where it was stated that ''this is an issue to be resolved on the documents, and in the light of objective features of the transaction''. Presumably, however, on analogy with sailing schedules, promotional material could be viewed as part of the contract and oral evidence, if available, is clearly admissible, see Tetroc v. Cross-Con, fn. 286, above, cf Weis v. Northern Traffic (1919) 1 Ll L Rep 241.

^299. QBD, 26 October 1990, unreported.

^300. Cf NSAB 1985 discussed by Ramberg, p. 78.

suggests that contradictory terms in the forwarder's other documentation can be ignored.³⁰¹

2.72 (b) The method of charging adopted by the forwarder

In Colley v. Brewer's Wharf & Transport, ³⁰² charging an inclusive rate rather than indicating actual cost and adding commission was held to indicate that the forwarder was acting as a principal. This has not always been taken as a particularly strong factor. In Texas Instruments Ltd v. Nasan (Europe) Ltd, ³⁰³ the fact that the forwarder charged an all-in rate was only one factor among others to be considered and did not lead to the conclusion that the forwarder was not acting as an agent although it would be more usual for an agent to pass on the charge to the customer. Furthermore, in M. Bardiger Ltd v. Halberg Spedition Aps, ³⁰⁴ the existence of fixed rates did not lead to the conclusion that the forwarder had undertaken a responsibility as a contracting carrier. On the other hand the use of a fixed charge may well be a factor in leading a court to consider that the forwarder's customer anticipates that he is paying for a package of services under which he contemplates that the forwarder will subcontract the performance of the carriage if he is unable to do it himself.³⁰⁵ In choosing to charge an inclusive price, however, the forwarder runs a risk that if he is held to be acting truly as an agent he could fall foul of the rule that forbids the making of a secret profit if the profit in the charge goes beyond what could be considered to be a reasonable commission.306

^301. The clause does, however, create an exception where the company procures a carriage document which evidences a contract of carriage between the customer and the carrier issuing such document. By cl. 2(v), in any other case, the company purports to be an agent only if it enters into contracts with other parties for carriage, etc., which are capable of being enforced by the customer as principal. This applies whether or not the customer is named or disclosed as principal. (Cf TT CLUB 400, cl. 4(C) and DAMCO STC, cl. 11(b) reproduced at 2.44). This clause appears to be circular since the question whether the contract with the third party is capable of being enforced by the customer seems to depend on whether or not the forwarder is an agent. Nevertheless, it seems that a forwarder can make a contract of carriage with the customer on the one hand and make the shipment on his behalf on the other, naming him as shipper and party to the contract of carriage (See Cho Yang Shipping v. Coral (UK) [1997] 2 Lloyd's Rep 641, esp. at p. 646). In this situation such clauses will be of use in removing an inference of carrier liability. It may be of particular assistance in cases where the customer has a right in law to enforce the contract regardless of agency, e.g. a consignee under the CMR Convention or the endorsee of a bill of lading under the Carriage of Goods by Sea Act 1992. If the intention is to focus on the document issued by the third party TT CLUB, cl. 4(C) may be of more use. Even more direct is cl. 7.1 of the FIATA Model Rules which provides that the freight forwarder shall not be deemed liable as carrier if the customer has received a transport document issued by a person other than the freight forwarder and does not within a reasonable time maintain that the freight forwarder is nevertheless liable as Carrier.

^{302. (1921) 9} Ll L Rep 5.

^{303. [1991] 1} Lloyd's Rep 146. Cf Inco Europe Ltd v. First Choice Distribution [1999] 1 WLR 270, [1999] 1 All ER 820 where an invoice which referred to ''Truck-Freight'' was regarded as neutral.

^304. QBD, 16 October 1990, unreported.

^305. Tetroc Ltd v. Cross-Con (International) Ltd [1981] 1 Lloyd's Rep 192, Elektronska Industrija Oour TVA v. Transped Oour Kintinentalna Spedicna [1986] 1 Lloyd's Rep 49, Singer Co (UK) Ltd v. Tees and Hartlepool Port Authority [1988] 2 Lloyd's Rep 164.

^306. Immediate Transportation Co Ltd v. Speller, Willis & Co (1920) 2 Ll L Rep 645, (cf BIFA, cl. 9, 2.166, below). See, however, fn. 191 above.

(c) The extent to which the customer is kept informed of arrangements made on his 2.73 behalf

The courts have at times emphasised the extent of the knowledge of the forwarder's customer about arrangements made on his behalf. The fact that the customer had been given little information about the carriers involved in an international road movement was an important factor in Tetroc v. Cross-Con³⁰⁷ in determining that the defendant carrier was acting as a principal and thus liable as a CMR carrier. This factor may be reinforced by clauses such as clause 5(B) of BIFA 1989 Conditions. Other clauses may seek to place an onus on the forwarder to give details of arrangements on demand or risk being considered a principal although his intention may be to act as agent.

(d) The usual course of business of the forwarder 2.74

The courts take into account whether the forwarder has acted previously as ''forwarder'' or principal308 or, similarly, whether his standard terms recognise the possibility of his acting as a principal.³⁰⁹

(e) The forwarder's relationship with the physical performer of the service 2.75

The fact that the forwarder has a standing arrangement with such person may well indicate subcontracting rather than agency.310 In Granville Oils & Chemicals Ltd v. Davies Turner & Co Ltd, ³¹¹ Judge Behrens included the fact that the forwarders accepted that they were personally responsible for the costs incurred by their agents and the ocean carrier as a factor in finding that they were acting as principals. No appeal was made to the Court of Appeal on this point but it might be noted that the fact that a forwarder takes on such a responsibility is not necessarily contradictive of an agency role.312 Obviously there can be no doubt if the forwarder physically performs the carriage using his own employees utilising his own or hired means of transport.313 The extent to which the forwarder owns such means of transport or

^{307. [1981] 1} Lloyd's Rep 192.

^308. Marston Excelsior v. Arbuckle Smith [1971] 2 Lloyd's Rep 306, Elektronska Industrija Oour TVA and Another v. Transped Oour Kintinenyalna Spedicna and Others [1986] 1 Lloyd's Rep 49.

^309. Elektronska Industrija Oour TVA and Another v. Transped Oour Kintinenyalna Spedicna and Others, previous footnote, referring to the standard trading conditions of the Institute of Freight Forwarders 1974.

^310. Lee Cooper v. Jeakins, above, John Rigby (Haulage) Ltd v. Reliance Marine Insurance [1956] 2 QB 468, [1956] 2 Lloyd's Rep 10. Compare Hair & Skin Trading v. Norman Airfreight Carriers [1974] 1 Lloyd's Rep 443.

^311. Leeds District Registry Mercantile Court, 21 October 2002. See also Center Optical, fn. 284, above.

^312. A distinction is perhaps possible between situations where the understanding is that a known agent takes on such personal responsibility possibly on the basis of trade custom and where it is simply a normal incident of the relationship entered into by the forwarder whereby the contractor looks to the forwarder for payment.

^313. Geologistics GTC, cl. 2(iii) and TT CLUB 400, cl. 3(a), indicate that the forwarder is a principal when he physically performs a particular task. Whilst seemingly to be stating the obvious they might support an inference the other way when the forwarder does not physically perform.

other equipment may be a relevant factor,314 especially in respect of the impression it may create as to the nature of the forwarder's business.315

2.76 (f) The nature of the documents produced and the use made of them by the parties

The forwarder may himself issue a document strongly suggestive of the capacity of the performer such as an FBL or other combined transport bill of lading.³¹⁶ He may, for example, sign a transport document in such a way as to indicate a particular capacity or the actual performer may do so.

2.77 As indicated at 2.3, one document may be issued by the forwarder and another by the performer such as a carrier. In the context of the CMR Convention, a CMR consignment note issued to the customer and indicating the actual carrier as ''carrier'' was not treated as a strong factor in Elektronska v. Transped, ³¹⁷ since the consignment note was issued after the contract was made and had been filled in by the driver who was unlikely to realise the legal implications of his insertions. On the other hand in Texas Instruments Ltd v. Nasan (Europe) Ltd, ³¹⁸ the evidence of the driver was accepted that he had authority from the carriers to indicate them as carriers on the CMR consignment note. Forwarders, in that case, were indicated as senders but there was a further indication that sending was by order of the forwarder's customer thus confirming that they were agents rather than carriers. In Kala Ltd v. International Freight Services (UK) Ltd, ³¹⁹ the forwarder signed a CMR consignment note as sender. Although no issue was raised in respect of CMR it is noteworthy that the forwarders were considered not to be carriers but more than mere forwarding agents. In Inco Europe Ltd v. First Choice Distribution, ³²⁰ the forwarder was named as sender in the CMR consignment note which was considered to be contradictory of the plaintiffs' case that the forwarder was a carrier or was accepting the obligations of a carrier as opposed to those of a forwarder.
2.78 In Singer Co (UK) Ltd v. Tees and Hartlepool Port Authority, ³²¹ it was accepted that the acceptance by the forwarder of responsibility to the port authority for port charges, as recorded by the shipping note, was one factor among others leading to the conclusion that the forwarder was acting as a principal and not as an agent. In Freight Systems Ltd v. Korea Shipping Corp (The Korea Wonis-Sun),322 the fact that the forwarder had a time/volume contract with the carrier by sea would have negated an inference of agency. However, the fact that the forwarder's indication on the carrier's bill of lading that the shipment was on behalf of the forwarder's customer was sufficient to constitute the forwarder as agent for the customer.

^314. TT CLUB 400, cl. 4(b) seeks to remove the supply of equipment by the forwarder from the range of factors to be considered.

^315. Cf Bardiger, above 2.55.

^316. See 2.86. See also, below, 2.87.

^317. Fn. 305, above.

³¹⁸. Fn. 295, above.

^319. QBD, 7 June 1988.

^{320. [1999] 1} WLR 270, [1999] 1 All ER 820.

^{321. [1988] 2} Lloyd's Rep 164.

^{322. 21} November 1990, Hong Kong (reported in LMLN No. 290 and presumably reporting a decision of the High Court of Hong Kong).

Arguably, however, such facts might raise an inference that the forwarder both 2.79 accepted responsibility as a carrier whilst making the shipment on behalf of the customer as in Cho Yang Shipping Co Ltd v. Coral (UK) Ltd.³²³ On the other hand, Henry J in Emery Air Freight Corp v. Nerine Nurseries Ltd, ³²⁴ found it difficult to see how the plaintiff could be a party to a contract of carriage with the air freight agent in that case and also a party to a concurrent contract with a contracting air carrier to effect the same carriage.

Cases concerning carriage by sea have produced varying results. In Langley, 2.80 Beldon & Gaunt v. Morley, ³²⁵ it was said that it was exceptional for a forwarder to put himself into the position of a carrier and that this was not achieved solely by placing his name as sender on the consignment note.326 Even though this might be more expected where a forwarder provides groupage services,327 in The Maheno³²⁸ the forwarder of goods consolidated into the shipowner's container who issued his own document was held to be an agent. Here the degree of control (or lack of it) that the forwarder himself had over the movement of the goods, especially through the document he had issued, was emphasised. In a Canadian decision a freight forwarder was held by the Federal Court to be liable as a carrier for short delivery and damage to goods transported from Bulgaria to Canada under a through bill of lading issued by it. The factors emphasised by the court were: the plaintiff was unaware of the contract between the freight forwarder and the sub carriers; the wording of the bill of lading suggested that the freight forwarder was acting as the carrier; the freight forwarder's charges were ''all-inclusive'', and no evidence was adduced of any prior course of dealings between the plaintiff and the freight forwarder.329

2C.4.4 The significance of bills of lading

The question as to how the forwarder's contract is to be classified, in the context of 2.81 carriage by sea, is often linked with whether the document issued by a forwarder can be regarded as a bill of lading. The relevance to liability is related to the issue of whether the Hague Rules apply to govern the document since the application of the Hague Rules depend upon the contract of carriage being ''covered by a bill of lading

^{323. [1997] 2} Lloyd's Rep 641. See below 2.92.

^{324. [1997] 3} NZLR 723 at p. 725.

^{325. [1965] 1} Lloyd's Rep 297 at p. 306.

^326. See also Platzhoff v. Lebean (1865) 4 F&F 545 and see Scrutton, p. 55, cf however, Bristow (above fn. 197) who suggests that such a conclusion may be possible where the forwarder takes the role of a principal in respect of a charterparty, citing The Virgo [1976] 2 Lloyd's Rep 135 and The Sun Happiness [1984] Lloyd's Rep 381.

^327. Cf Eastern Kayam Carpets Ltd v. Eastern United Freight, High Court, 6 December 1983, unreported.

^{328. [1977] 1} Lloyd's Rep 81. Cf Landauer v. Smits (1921) 6 Ll L Rep 577, and Emilio Clot & Co v. Compagnie Commerciale du Nord SA (1921) 8 Ll L Rep 380.

^329. Bentex Fashions Inc v. Cargonaut Canada Inc (1995) 95 FTR 192 in Tetley, ''Canada Maritime Legislation and Decisions, 1996–1997'' (1998) LMCLQ 265 at p. 273. Cf Canusa Systems Ltd v. The Conmar Ambassador (1998) 146 FTR 314 and contrast Brereton v. KLC Freight Services Ltd (1997) 105 OAC 149 (Ontario, CJ Gen Div), see Tetley, ''Canadian Maritime Legislation and Decisions 1997–1998'' (1999) LMCLQ 278 at pp. 288 and 289.

or similar document of title''.330 This is really a separate question from the nature of the forwarder's contract. The two questions are linked however. A finding that a document is not a bill of lading may well be a strong indication to the court that the forwarder does not intend to contract to carry. Further, such a finding will mean that the forwarder can contract out of the compulsory application of the Rules regardless of whether the contract is classified as a contract of carriage. This appears to have been the case in The Maurice Desgagnes,³³¹ where the conclusion that the forwarder's document was not a bill of lading under the Canadian Carriage of Goods by Water Act 1970 meant that the forwarder was not liable for goods which arrived damaged after a period of carriage by sea. The fact that the document was not signed was the crucial factor in this determination.

2.82 For the purposes of the Rules it seems to have been the view that the requirement is that the ''bill of lading'' should be a negotiable instrument, the endorsement and delivery of which may affect the property in the goods shipped,332 which is the case with a bill falling within the custom of merchants acknowledged in Lickbarrow v. Mason. ³³³ More recently, however, the decision in the Rafaela S³³⁴ has cast doubt on the idea that negotiability is central to the concept of a bill of lading and that this attribute is a necessary condition for the application of the Hague Rules. The court decided that a straight bill of lading counted as a bill of lading for this purpose. It was accepted that the travaux préparatoires demonstrated no clear intention to exclude straight bills,335 and that even though not negotiable, in the sense of being generally transferable, a straight bill of lading could still be regarded as a document of title. It could be regarded as such since it was accepted that production of a straight bill of lading is necessary to obtain delivery of the goods.336
2.83 This view may be thought to run contrary to a more traditional approach which tends to align the concept of a document of title with general transferability.³³⁷ The custom of merchants was the foundation for the shipped order bill of lading to be regarded as a symbol of the goods338 and its transfer a means by which constructive possession can be transferred. The difficulty is to determine whether this can be done by the wording of the document alone.339 The fact that a document states that its presentation is required before delivery will be given up does not necessarily

^330. Article I(b).

^{331. [1977] 1} Lloyd's Rep 290, see further De Wit, paras 6.37–6.40 and Bugden, 6–03; see also, generally, S. Nossal, ''The Legal Status of Freight Forwarders' Bills of Lading,'' (1995) HKLJ 78.

^332. Per Andrews LCJ, Hugh Mack & Co Ltd v. Burns & Laird Lines Ltd (1944) 77 Ll L Rep 377 at p. 383 (Court of Appeal of Northern Ireland).

^{333. (1794) 5} TR 683.

^{334. [2005]} UKHL 11, [2005] 2 AC 423. See further, Carver on Bills of Lading, 6–003.

^335. See Lord Bingham at [19].

^336. At [20].

^337. E.g. Tettenborn, ''Transferable and negotiable documents of title—a redefinition?'' [1991] LMCLQ 538.

^338. Kum v. Wah Tat Bank Ltd [1971] AC 439 at p. 446.

^339. For Bools, at p. 185, if it can be shown, either by mercantile usage or the document itself, that the issuer, who is the holder of the goods, intends only to deliver to the presenter and that transferors intend to give up and transferees intend to take control of the goods, then the document will be a document of title.

make it a document of title in the common law sense.340 It might be regarded as merely a token of an authority to receive possession,³⁴¹ and might not necessarily bind either the shipper or the carrier so far as the consignee is concerned. There may yet remain a doubt as to whether, in the absence of mercantile custom, a straight bill of lading can achieve the effects that could otherwise be produced by an attornment which both binds the carrier and may estop the shipper. Possibly the decision represents a division between the concept of a document of title sufficient to attract the application of the Hague Rules and the operation of the concept in other areas of the law. Quite apart from that, and even if there is this suggested divergence, the difficulty might remain that whilst a bill of lading issued by or at least recognised by a shipowner as controlling delivery can thereby be a document of title for the purpose of the Hague Rules, this might not be the case where the document does not control delivery from a shipowner. The need for this association may well be necessary for other purposes also.

It may be possible to argue that an alternative view is possible. Although a 2.84 forwarder's document might not be used to control the movement of the goods out of the possession of an underlying carrier it might well be used to control the final delivery to the receiver, for example at a final stage of the journey where the goods have come back into the possession or control of the forwarder before final delivery. It is suggested that so long as the document displays an intention to accept contractual liability for the period of carriage by sea and is ultimately controlling delivery it could be regarded as a bill of lading at least for the purposes of the Hague Rules. It is the factor of controlling delivery which provides sufficient analogy with the traditional bill of lading as it is most likely to bring the forwarder into contact with a third party.342 Support can be found in the decision of the Federal Court of Australia in Comalco Aluminium Ltd v. Mogal Freight Services Pty Ltd.³⁴³ A consignment note issued by a forwarder for a door-to-door transport was held to be a bill of lading³⁴⁴ for the purposes of application of the Hague Rules. Although called a consignment note, the document was held to satisfy the three essential features of a bill of lading: it evidenced receipt of the goods; evidenced a contract of affreightment for the carriage of the goods made by the forwarder and was a document of title. It satisfied the last requirement since the box headed ''Consignee–Receiver'' was filled out ''to order'' and there was an indication of a Notify Party. This is the time-honoured way of filling out a negotiable bill of lading and these matters pointed to an intention by the parties to make the consignment note a document of title. Apart from the forwarder's document there was also an ocean bill of lading under which the goods, having been stuffed into a container by the forwarder, were consigned to the forwarder's agent. The goods were, however, to be

^340. See Treitel, ''The legal Status of Straight Bills of Lading'' (2003) 119 LQR 608, especially at p. 621.

^341. Official Assignee of Madras v. Mercantile Bank of India [1935] AC 53 at p. 59. 342. The need to protect third parties was seen by Rix LJ in the Court of Appeal judgment in The

Rafaela S [2003] EWCA Civ 556, [2003] 2 Lloyd's Rep 113 affirmed [2005] UKHL 11, [2005] 2 AC 423 at [59] as a prime motive behind the adoption of the Rules.

^{343. (1993) 113} ALR 677. See M. Davies (1993) 21 ABLR 377 and S. Hetherington [1993] LMCLQ 313.

^344. Or at least a similar document of title.

unstuffed from the container and delivered by the forwarder to the receivers. Delivery was to be made, therefore, against the forwarder's bill of lading.345

2.85 For the application of other regimes applicable to carriage by sea, such as the Hamburg Rules and, in prospect the Rotterdam Rules, it is the contractual intention rather than the technical nature of the document that becomes the relevant requirement. The absence of intention, as where a forwarder or other operator acts only as an agent during any ocean carriage, will surely prevent these regimes from applying to that operator. Even if the document issued by the forwarder or other operator is called a bill of lading, the lack of intention will also make it unlikely that, quite apart from liability regimes such as the Hague Rules, the Carriage of Goods by Sea Act 1992 could apply to enable there to be any transfer of contractual rights by means of that document even if the operator has contracted as carrier for non-sea stages of the transport. Nevertheless, it might be possible for there to be a sufficient tie between the forwarder's document and the carriage by sea contract made by the underlying carrier to enable the former to count as a bill of lading for the purpose of enabling the underlying contract to fall within the Hague Rules or the rights under it transferred under the Carriage of Goods by Sea Act 1992.³⁴⁶
2.86 More generally, the issue by the forwarder of a document entitled a bill of lading has been seen as a manifestation of the intention to act as an independent contracting party notwithstanding that the bill purports to exclude virtually all liability as in Troy v. The Eastern Company of Warehouses, ³⁴⁷ and Midland Rubber Co v. Robert Park & Co.³⁴⁸ These cases contrast with others where the issue of such a bill has not been considered to amount to such an undertaking such as A. Gagniere v. Eastern Company of Warehouses, ³⁴⁹ and Emilio Clot. ³⁵⁰ As has been noted, the issue of an FBL351 is likely to be a stronger manifestation of intention to contract as a carrier than the issue of a ''House'' bill of lading. Even so, in the New Zealand carriage by air case of Emery Air Freight Corp v. Nerine Nurseries Ltd, ³⁵² a ''House Waybill'' was held to evidence a contract of carriage. Its description as a ''waybill'' and the authorisation to employ ''third parties'' were emphasised as well as the fact that although it made provision for a master waybill number, the waybill number was the forwarder's number which the air carrier in turn adopted on its own waybill. The use of a ''House'' bill might fit with an argument that the forwarder is contracting merely to procure carriage by sea but without undertaking a responsibility as a contracting carrier. Accordingly, although entitled a bill of lading, this document should not amount to a contract of carriage, unless clearly evincing this intention, and is not to be considered as being within the Hague or Hague-Visby

^345. Cf Carrington Slipways, 2.91, where there was never a time when the forwarder's bill would have controlled delivery from the person in possession of the goods.

^346. See 3.10 and 3.37.

^{347. (1921) 8} Ll L Rep 17.

^{348. (1922) 11} Ll L Rep 119.

^{349. (1920) 7} Ll L Rep 188.

^350. See fn. 328 above

^351. See 2.76.

^{352. [1997] 3} NZLR 723.

Rules.353 Certainly there may be indications in the documents which reveal an agency role rather than an intention to undertake a carrier liability as in Kim Meller Imports Pty Ltd v. Eurolevant SpA & Ors, ³⁵⁴ where the forwarder was held to be an agent having issued a bill of lading with no terms stated on it and having indicated himself as the shipper on both his own and the defendant carrier's bill of lading.

In the US the development of the concept of the non-vessel-operating common 2.87 carrier (NVOCC) would seem to have helped to promote the idea that a forwarder can assume the responsibilities of a Hague Rules carrier so that the bill of lading issued by him falls within the rules as applied by the Carriage of Goods by Sea Act 1936.355 In Sabah v. Harbel Tapper, ³⁵⁶ a forwarder was held to be a carrier when he issued the bill of lading and was named as carrier in it and charged a fixed amount for carrying the cargo. In Shonac Corp v. Maersk Inc³⁵⁷ the forwarder was held to be a carrier having, on the face of the bill of lading, executed it as the ''carrier''. This outweighed the description of the forwarder as ''Shipper/Exporter'' in the upper right-hand corner of the bill. The conclusion was supported by references in the bill of lading to the \$500 per package limitation, the carrier definition clause and other conditions referable to the liability of the carrier. Compare Prima US Inc v. Panalpina Inc,³⁵⁸ where the court saw the job of an NVOCC as being to consolidate cargoes from numerous shippers into larger groups for shipment by an ocean carrier. An NVOCC issues a bill of lading to each shipper. A freight forwarder simply facilitates the movement of cargo to the ocean vessel and does not issue a bill of lading. The defendant, who neither issued a bill of lading nor consolidated cargo was simply a freight forwarder to arrange transportation and even the statement made to the claimant that their shipment would ''receive door to door our close care and supervision'' did not make them liable as a carrier for the negligence of stevedores engaged by them to move the goods to a ''flat-rack'' container in preparation for ocean carriage. Note further that the US courts have held a forwarder not to have contracted as carrier even where he issued a ''bill of lading'' on criteria similar to those used in English decisions, as in JC Penney Co Inc v. American Express Co Inc and American Export Lines Inc, ³⁵⁹ and Zima Corp v. Roman Pazinsky. ³⁶⁰ Nevertheless, even in American law it would still appear to be necessary

^353. A comparison may be made with Evans v. Merzario, (2.47, above) where no bill of lading was issued by the forwarder but one was accepted by the forwarder's agent from the shipowner. No issue in respect of the Rules was raised but it is noteworthy that Roskill LJ described the forwarders as forwarding contractors rather than as carriers ([1976] 1 WLR 1078 at p. 1082, [1976] 2 Lloyd's Rep 165 at p. 168). Nevertheless their continuing responsibility was made clear by his statement that their work was performed through subcontractors and his description of the shipowners as subcontractors.

^354. NSW Sup Ct, 6 February 1989, unreported.

^355. Halm Industries v. Timur Star, [1985] AMC 391 (SDNY), Prussman v. M/V Nathaniel [1988] AMC 297 (SDNY), see also I.N.A. v. American Argosy [1984] AMC 1547 (2d Cir.), see further De Wit, para. 1.29.

^{356. [2000]} AMC 163 (5th Cir. 1999).

^{357. [2001]} AMC 1924 (SD Ohio (Eastern Div)).

^{358. [2000]} AMC 2897 (2d Cir.).

^{359. [1952]} AMC 901 (SDNY): previous role as agent (above, 2.74 factor (d)); no element of profit in consolidation of goods (below, 2.72).

^{360. [1980]} AMC 1552 (SDNY): knowledge of shipper as to ship (see, 2.73), no consolidation, no element of profit beyond commission (see 2.72).

that for the purposes of COGSA the document should be a ''document of title''.361 More generally, in James N Kirby Pty Ltd v. Norfolk Southern Railway Co, ³⁶² the Court of Appeals for the 11th circuit recognised that by issuing an FBL a forwarder assumes the role of carrier.

2.88 Regardless of how the forwarder's document is regarded, there may yet be the difficulty that it does not provide a remedy against the carrier actually performing the transport or other person in actual possession of the goods. In The Brij, ³⁶³ a freight forwarder issued a bill of lading to the claimant. The goods were, however, delivered to a third party named as consignee in a bill of lading issued by the ocean carrier to the forwarder as shipper. The bills of lading issued by the ocean carrier were never meant to be used but were kept in a drawer by the forwarder. For the court this fact meant that the plaintiff was not party to the contract with the ocean carrier and so its contractual claim failed. This fact also led the court to the view that although the words ''or order'' were present in it, the bill was a straight bill so that delivery without requiring its presentation gave rise to no liability in tort. For Rix LJ, in the Court of Appeal decision in The Rafaella S, ³⁶⁴ the intention as to use involved a different question than the proper construction of the bill. This intention, however, might have made it possible to show that, at least subjectively, the carrier had not contracted to comply with the normal requirements as to delivery under the bill.365
2.89 The decision in The Brij compares with Sonicare International Ltd v. East Anglia Freight Terminal Ltd³⁶⁶ where the forwarder's Combined Transport Bill of Lading ultimately controlled delivery, the goods having been consigned to the forwarder's agent under the ocean bill of lading and the shipowner's control in respect of the terminal warehouse having been transferred to this agent by means of nomination of a Unique Consignment Number. As one among several alternatives, Judge Hallgarten QC accepted that the transfer of the Combined Transport Bill of Lading amounted to a transfer of the bailment with the party in possession at the time of the loss, the terminal warehouse. Since this bill of lading was not issued by them and did not represent a document by which they undertook to deliver the goods, it is, with respect, hard to see how it could have been used to establish a relationship between themselves and the transferee of the bill of lading.

^361. See The Aegis Spirit [1977] 1 Lloyd's Rep 93 at p. 97 (District Court, Western District of Washington). See also J.C.B. Sales Ltd v. M.V. Seijin [1996] AMC 1507 (SDNY), affmd.

^{362. [2002]} AMC 2113 (11th Cir., reversed on different grounds 543 US 14, [2004] AMC 2705), citing Ramberg, The Law of Freight Forwarding and the 1992 FIATA Multimodal Transport Bill of Lading, at p. 7. Kirby was followed in Mitsui Marine & Fire Insurance Co Ltd v. Hanjin Shipping Co Ltd [2004] AMC 577 (Georgia, State Court of Chatham County), in respect of a Mitsui bill of lading issued by an NVOCC, in light of the terms of the bill and the lack of control and supervision exercised by the customer over the NVOCC's functioning, see p. 586. See further, in relation to control, The National Shipping Co of Saudi Arabia v. Diversified Freight Logistics Inc [2004] AMC 188, where the forwarder was held to have acted as an independent contractor in booking shipment of an oil rig with an ocean carrier. Cf further, Weintraub v. ETA Transportation, SDNY 28 August 2003 (see www.onlinedmc.co.uk).

^{363. [2001] 1} Lloyd's Rep 431 (HKHC, Ct. of First Instance).

^{364. [2003]} EWCA Civ 556, [2004] QB 702 at [107] affirmed [2005] UKHL 11, [2005] 2 AC 423.

^365. Its release or use by the forwarder might then have raised difficult issues of estoppel. 366. [1997] 2 Lloyd's Rep 48 (CLCC Bus. List).

These cases get to the heart of issues concerning the functions of a bill of lading 2.90 and it is suggested that the extent to which the forwarder or other contracting carrier's document provides a link to the underlying carrier or possessor is crucially relevant to them. In the paradigm case of a standard bill of lading the custom of merchants recognised that by its transfer property could be transferred. The importance of this recognition was that the transfer was to be binding on the person in possession and thereby a basis for regarding the holder of the bill as being in constructive possession of the goods. Since in this paradigm case the goods were in the possession of a shipowner, it was precisely this person who needed to be bound. Forwarders and other operators might well obtain the possession or control of the goods prior to the actual shipment of the goods. A combined transport bill, for example, will commonly be ''received for shipment'' and, as such, does not fall strictly within the custom of merchants found in Lickbarrow v. Mason, ³⁶⁷ quite apart from the fact that both land and sea carriage might be covered.³⁶⁸ There may be a case for saying that a custom can now be proved in respect of such documents given their wider recognition and use in providing a basis for trade financing, or that simply using the language of negotiability can achieve the effect.³⁶⁹ However, unless it is clear that the document is binding on all those coming into possession of the goods, the holder of the document cannot be sure of being in constructive possession throughout the transit or that there is no other document in circulation which gives effective control of the goods. Further, even the fact that there is a contractual tie to a person who is in effective control of the goods may not be sufficient, especially where it is sought to use the document to transfer that tie to others.370 There may well be a crucial difference therefore between where those in possession will recognise the forwarder's document and make delivery on the basis of it as opposed to where they will do so only on the basis of their own document.³⁷¹

^367. Fn. 333. Cf The Marlborough Hill v. Cowan & Sons [1921] 1 AC 92, Hugh Mack & Co Ltd v. Burns & Laird Lines Ltd (1944) 77 Ll L Rep 377 at p. 383, Ishag v. Allied Bank International [1981] 1 Lloyd's Rep 92, Carver on Bills of Lading, para. 6–002, De Wit, paras 6.11–6.12. See also Debattista, para. 3–12, cf Benjamin, para. 21–083 and note the recoginition of ''received for shipment'' bills in s. 1(2)(b) of the carriage of Goods by Sea Act 1992 (and see Law Com. Report, below, fn. 339).

^368. See further De Wit, paras 6.27–6.40. Even more difficult will be where no sea carriage is envisaged but a combined transport document is issued in negotiable form. See generally, Ramberg, ''The multimodal Transport Document'' in Schmitthoff and Goode, p. 1, S. Nossal, ''The Legal Status of Freight Forwarder's Bills of Lading'' (1995) HKLJ 78, Bugden, ch. 6.

^369. Cf Debattista, para. 3–12, Scrutton, Art. 196, Benjamin, 21–083. See further, the Law Commission and the Scottish Law Commission Report on Rights of Suit in Respect of Carriage of Goods by Sea (Law Com, No. 196, Scot Law Com, No. 130), para. 2.49. It is suggested in Carver on Bills of Lading, para. 6–002, that a custom must be proved since this is the only way that documents can become documents of title at common law, cf Bools fn. 339 above. Further, it is argued that there is a practical difference in that once goods have been shipped it becomes impossible or extremely difficult for the shipper or consignee to deal with them physically. The alternative of marking the bill of lading as shipped is noted. However, in the context of modern container transport, this physical difference may be more apparent than real, and the practical inconvenience of marking up a bill of lading with the exact time of shipment may be considerable.

^370. And indeed may be contrary to the interests of the person in control who may have rights to maintain in respect of the person in possession. The discussion of the French decision of the Cour de Cassation (31 March 1987, (1988) DMF 451) by De Wit, paras 6.41–6.43, is especially instructive.

^371. Thus a clearer case for recognition would be the case of a time charterer's bill against which delivery will be made by the shipowner, as in The Okehampton [1913] P. 173. There may be little doubt that such a bill falls within the custom.

In the latter case, it would seem unsafe to regard the forwarder's document as being a document of title, at least for any period that the goods are in possession of a person without knowledge of or recognition of the forwarder's document.372 Once the goods come back into the possession of the forwarder it might then be possible to construe the forwarder's document as carrying the means of transferring constructive possession.

2.91 Two further cases can be noted as relevant to these issues. In Carrington Slipways Pty Ltd v. Patrick Operations Pty Ltd (The Cape Comorin), ³⁷³ it was held that a freight forwarder's bill of lading was not a bill of lading within the Bills of Lading Act 1855 or its New South Wales equivalent. It could not be used to pass property in the goods.374 This was despite the fact that it evidenced a contract of affreightment with the forwarder's customer.375 The Court of Appeal was not concerned with the application of the Hague Rules although at first instance the Hague Rules were applied in respect of the liability of the forwarder towards his customer. Rather it was concerned with whether a stevedore could rely on the bill of lading issued by the time charterer.376 The forwarder had issued an order bill of lading which was in fact the document required under the letter of credit. A separate ocean bill of lading was issued by the time charterer to the forwarder's agent and the goods were consigned, under the ocean bill of lading, to the forwarder. Delivery of the goods was obtained via the ocean bill of lading which was exchanged by the forwarder on receipt of the forwarder's bill. Although the forwarder's bill appeared to be an ocean bill, it was, in fact, a house bill of lading.³⁷⁷ Clearly the court had great difficulty in regarding

^372. During the period of sea carriage the forwarder's control over the goods is maintained by possession of the ocean carrier's bill of lading. It is the forwarder who is in constructive possession of the goods. It might be possible to regard the forwarder as the shipper's agent so as to regard the shipper as being in constructive possession. This is, however, unlikely. The person in possession will not have the duties of a bailee towards the shipper without sufficient notice of his interest, see The Pioneer Container [1994] 2 AC 324, at p. 342, and will in any case be free to obey the forwarder unless and until the shipper intervenes. It may therefore be impossible to regard the contractual rights that the shipper has against the forwarder as amounting to possessory rights against the person in possession. Any transfer made by the shipper of the forwarder's document, even if it could be regarded as a transfer of the agency, unless acknowledged by the bailee is unlikely to transfer any real possessory rights to the transferee (and, it may be suggested, could not be a means by which contractual rights, e.g. under the Carriage of Goods by Sea Act 1992, could be transferred). If the person in possession, e.g. the ocean carrier, issues his own transferable document it is this document which this person will regard as the key to the goods. It may be argued that the situation is not unlike where a shipowner has placed the goods into the hands of a wharfinger under a stop for freight. The bill of lading can continue to be a document of title even though the goods are no longer on a ship, Charles Barber v. William Meyerstein (1869–70) LR 4 HL 317. In that case, however, it was clear that it was the bill of lading that was the means by which the wharfinger would satisfy himself that he was delivering to the right person, see p. 332, cf Glyn Mills Currie & Co v. East and West India Dock Co (1881–82) LR 7 App Cas 591 (HL).

^{373. (1991) 24} NSWLR 745 (New South Wales Court of Appeal).

^374. Per Handley JA, at p. 752. Compare Selected Machinery Imports Pty Ltd v. A Hartrodt Italiana Srl, Sup Ct of Victoria, 23 June 1989, unreported, where the forwarder's bill rather than the shipowner's was used under the documentary credit. In The Cape Comorin some doubt was expressed about the title to sue of the consignee since it did not have the ocean bill of lading in its hands at the time of discharge.

^375. See S. Hetherington, ''Freight Forwarders and House Bills of Lading'' [1992] LMCLQ 32.

^376. Although the forwarder's bill amounted to a contract of affreightment the forwarder was also regarded as an agent in obtaining the ocean bill so that reliance could be placed on the Himalaya clause contained in it.

^377. See per Handley JA, at p. 753.

the forwarder's bill as a document of title in the fullest sense. In Luigi Riva Di Fernando v. Simon Smits Co Ltd, ³⁷⁸ a company which advertised themselves as steamship agents having a regular line of steamers issued a document which the court held to be a bill of lading although the goods were never shipped because the defendants were unable to charter the ships needed to run their ''regular line.'' The defendants were held liable to the holder of the ''bill of lading'' for non-shipment of and conversion of the goods. It is not entirely clear what the relationship of the defendant, the bill of lading, and the shipowner would have been had the goods been shipped, but the fact of non-shipment does not seem to have been an obstacle in regarding the document as a document of title.

Where the forwarder, however, names the customer as shipper in the ocean 2.92 carrier's bill of lading, with authority to do so, the customer will clearly become a party to the contract evidenced by the bill of lading but without necessarily becoming liable for freight. This was the case in Cho Yang Shipping Co Ltd v. Coral (UK) Ltd, ³⁷⁹ where a chain of forwarders led from the customer to the shipowner who issued a freight prepaid bill of lading, the customer being identified as shipper. The issue of a freight prepaid bill of lading reflected the practice of an association, which included the shipowner and the sub-forwarder, whereby credit for freight was made available to the forwarder. Whilst normally the issue of a freight prepaid bill of lading would not preclude the shipper from being liable for the freight, nevertheless, the customer was held not liable to pay it. The Court of Appeal found no authority from the customer to make him liable to pay the freight agreed between the shipowner and the sub-forwarder. Each party had acted as principal. Nevertheless Evans LJ³⁸⁰ considered the customer to have been rightly named as shipper and as contracting party to the bill of lading contract. Furthermore Hobhouse LJ,³⁸¹ considered that the contracts between customer and forwarder and between forwarder and sub-forwarder were not mere booking contracts. They were contracts for the carriage of certain numbers of containers during stated periods from German ports to Gulf ports at stated freights. A useful comparison can be made with the complex case of Coli Shipping (UK) Ltd v. Andrea Merzario,³⁸² where the shipper, the shipper's forwarder and the forwarder effecting transport on the basis of through bills of lading were all held to have contracted as principals in respect of vehicle demurrage incurred during on-carriage by road. The second forwarder had a space/slot hire arrangement with the ocean carrier. The judge considered that he was not a liner agent for the shipowner. Nevertheless the through bills of lading procured by the second forwarder bound the shipowner to the shipper. However, neither the shipper nor the shipowners were concerned with what the freight might be and ultimately the terms, as between the two forwarders as to freight and vehicle demurrage, were agreed without any necessary relationship between the rate agreed between them and those agreed by them with the other parties.

^{378. (1920) 2} Ll L Rep 279.

^{379. [1997] 2} Lloyd's Rep 641. See further J. Trappe [1997] LMCLQ 473. Compare Emery Air Freight Corp v. Nerine Nurseries Ltd [1997] 3 NZLR 723.

^380. At p. 646.

^381. At pp. 643–644.

^{382. [2002] 1} Lloyd's Rep 608.

2.93 An interesting contrast with Cho Yang Shipping is provided by TICC Ltd v. COSCO (UK) Ltd.³⁸³ Forwarders were named as shippers but the details of the freight were negotiated with the forwarders' customer named as consignee in the freight collect bill. Rix LJ was prepared to assume (although he did not need to decide) that the forwarder shippers were principal parties and that the customer, even though in other respects their principal, was to be treated as a consignee and not the shipper. The main decision was that a surcharge was not incorporated into the contract. A clause in the bill of lading incorporated the tariff and other requirements regarding charges. A fax notifying the surcharge was sent to the forwarders in Hong Kong but no notice was given to the customer in the UK. For Rix LJ,384 on the assumption made above, the true analysis was that the customer was not so much in this respect the shippers' principal, but rather the shippers' agent for the purpose of negotiating and fixing the financial terms on which the shipments would be made.³⁸⁵
2.94 Finally, the facts of The Brij³⁸⁶ illustrate a further dimension to the issues that can arise in respect of forwarders' bills of lading and which may be conveniently discussed at this point. It is common for such bills to be issued in a different name from that of the forwarder. This name may simply be the trading name of the forwarder itself when acting in respect of ocean transport as where it is marketing a container line. This was the case in The Brij. ³⁸⁷ Alternatively the ''trading'' company may be a separate entity from the forwarder. This can raise the issue as to which company contracts with the customer. In Center Optical (Hong Kong) Ltd v. Jardine Transport Services (China), ³⁸⁸ bills of lading were issued on which appeared the logo of the forwarder, Jardine Transport Services and the words: ''Dynamic Container Line (a Jardine Pacific Service)''. The signatures on the bills of lading took the form of a stamp consisting of the forwarder's name and that of its general manager. Adjacent to the place and date of issue and the stamped signatures were the words:

As agent for the carrier DYNAMIC CONTAINER LINE JARDINE FREIGHT SERVICES (HK) LTD

The Line was a separate company but it had nothing to do with the carriage and the forwarder had an agency agreement with it. The judge rejected the argument that Dynamic Container Line was the carrier rather than the forwarder. He accepted argument that: the mode of signature failed to indicate that the forwarder was not contracting as carrier and not simply using the Line name as a trading name; if the forwarder was acting as an agent at all it was doing so as agent for an unnamed

^{383. [2001]} EWCA Civ 1862, [2002] CLC 346 (2001 WL 1476256), CA.

^384. Para. 25.

^385. Presumably he considered that there was some contractual tie between the customer and the carrier, whether on the basis of the Carriage of Goods by Sea Act 1992 or through the definition of ''merchant'' in the bill of lading, which included the consignee, but this is not clear.

^386. Above 2.88.

^387. Compare Coli Shipping (UK) Ltd v. Andrea Merzario, above 2.92.

^{388. [2001] 2} Lloyd's Rep 678 (HK HC).

principal and that the non-disclosure of the principal's name leads to the liability of the alleged agent;389 notwithstanding the profession of agency the forwarder was the real principal. The bills were accepted in evidence to be ''house'' bills and little credence was to be attached to the agency agreement between the forwarder and the line which provided that all profits from the freight forwarding services provided by the forwarder belonged to the forwarder who took the risk of all losses on claims. The line was no more than the barest cipher for the forwarder who was the real principal.

2C.5 RESPONSIBILITIES OF THE FORWARDER OR LOGISTICS PROVIDER

BIFA 2005A, clause 23, TT CLUB 600, clauses 4.1 and 4.2 2.95

23. The Company shall perform its duties with a reasonable degree of care, diligence, skill and judgement.
4.1 The parties shall in good faith cooperate to promote the smooth and efficient running of this Agreement.³⁹⁰
4.2 The Logistics Provider shall provide the Services with reasonable care, diligence, skill and judgement and use reasonable endeavours to comply with the Service Levels and shall have due regard to the interests of the Customer in exercising any discretion permitted under this Agreement.³⁹¹

2C.5.1 Introduction—duty of care and other obligations

It is unusual to find such a positive undertaking of responsibility in forwarding 2.96 conditions.392 It was introduced into the 1984 edition of IFF Conditions and contrasts with previous conditions which were more restrictive. It must be considered alongside the exclusion in clause 24 which is largely the obverse of clause

^389. Citing Bowstead on Agency, 17th edn, at para. 9–014.

^390. See below 2.123.

^391. Rather than rely solely on a generalised standard of performance such as to use reasonable endeavours or to meet industry standards, contract logistics contracts commonly provide for service levels which identify Key Performance Indicators (KPI). Typical might be clauses which set times for goods to be prepared for despatch or completion of the delivery schedule (see further Jan´e and de Ochoa at 2.4.4.2). Payments or service credits might be set to compensate for failure usually balanced by a bonus regime for achieving a certain level (see further Lewis, chs 9 and 19, Kimball, ch. 7 and note Vertex Data Science Ltd v. Powergen Retail Ltd [2006] EWHC 1340 (Comm), [2006] 2 Lloyd's Rep 591, where Tomlinson J, at [38], acknowledged that it was possible that the terms of the service levels (SLAs) permit a level of performance which is objectively unsatisfactory). Arrangements for governance of the contract performance will need to be agreed (see Lewis, ch. 10) which may include appointment of a management team with a requirement to meet regularly (e.g., monthly), see TT CLUB 600, cl. 4.4. A force majeure clause will commonly be included to excuse failure but with the possibility for termination if such circumstances are prolonged (TT CLUB 600, cl. 24) along with a right to terminate for material breach (TT CLUB 600, cl. 3.2(a)). Such termination rights can be expected to be available for either party in respect of the default of the other. A more general right of termination may be agreed (e.g. TT CLUB 600, cl. 3.1). Given the importance of mutual confidence in the close relationship that this type of contract involves, a court may well be reluctant to grant an injunction to restrain a termination, see Vertex, above.

^392. Cf, however, DAMCO STC, cl. 15.

23.393 The intention behind clause 23 would appear to be to emphasise the current importance of ensuring the reasonableness of trading terms in light of UCTA as well as concern for a professional quality of service. It would appear to make express what would normally be implied into a contract of agency and the opportunity can be taken here to consider such duties. However, the existence of the clause may have relevance in the interpretation of other clauses which have relevance to a duty of care. Apart from this express term, a duty of care can be implied both at common law and under section 13 of the Supply of Goods and Services Act 1982. By section 16(3)(a) this does not prejudice any rule of law which imposes on the supplier of the service a stricter duty,³⁹⁴ nor by section 16(3)(b) the implication of a vicarious liability derived from a non-delegable duty.395 Apart from contractual sources of a duty of care a further source of liability is the tortious duty of care derived from the position of the forwarder who is likely to be considered to be performing professional or quasi-professional services for another who has relied on those services, as made clear by the decision of the House of Lords in Henderson v. Merrett Syndicates Ltd.³⁹⁶

2.97 Bowstead and Reynolds define the duty of care of an agent acting for reward as a duty to use such skill and care and diligence in the performance of his undertaking as is usual or necessary in or for the ordinary or proper conduct of the profession or business in which he is employed, or is reasonably necessary for the performance of the duties undertaken by him.³⁹⁷ It would seem unlikely that any higher standard is intended. At common law the courts have taken into account local customs and practices, or knowledge derivable from the locality of operation, to determine whether the forwarder has breached the standard of care.398 In so far as forwarding may be considered a profession, the following words of Cresswell J may be apt:

''A professional person should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his profession. He should be alert to the hazards and risks in any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert''.399

2.98 As noted above⁴⁰⁰ apart from the obligation to exercise care, a forwarder may be subject to other duties which arise from taking a position as an agent where this is the case. These can be considered in the context of other clauses where relevant. At this point it is convenient to note a further duty which may take on particular importance in the context of contract logistics. Such contracts are more likely to involve the forwarder in obtaining confidential information which may be the subject of express provision in the contract.⁴⁰¹ Even in the absence of express

^393. Clause 24 will, however, be discussed below at 2C.22.

^394. See below, 2.104.

^395. See below, 2.114, and Metaalhandel J.A. Magnus BV v. Ardfields Transport Ltd [1988] 1 Lloyd's Rep 197.

^{396. [1994] 2} Lloyd's Rep 468, [1994] 3 All ER 506. See also 2C.14.

^397. Article 42, see also Cliffe v. Hull and Netherlands S.S. Co Ltd (1921) 6 Ll L Rep 136 at p. 137. 398. See Hill, p. 84 and especially Gillette Industries Ltd v. W.H. Martin Ltd [1966] 1 Lloyd's Rep 57 at p. 60.

^399. Henderson v. Merrett Syndicates Ltd (No. 2) [1996] 1 PNLR 32.

^400. See 2.50.

^401. TT CLUB 600, cl. 22, OOCL Logistics Business Terms and Conditions, cl. 13.

provision the forwarder will have a duty not to exploit such information so as to profit from it. It seems that this duty may be independent of contract or even of a standing relationship. Any person who receives information which he knows or ought to know is confidential and uses that information for profit is liable whether there is a previous relationship between him and the claimant or not.402

2C.5.2 Gratuitous services

By reason of BIFA clause 2(A), clause 23 will also apply to situations where the 2.99 forwarder provides gratuitous services so that the same duty of care will also apply to such services. Traditionally, whether in agency or bailment, a distinction has been drawn at common law between a service provided for reward and a gratuitous undertaking where loss or damage has arisen in the performance of the service or undertaking. In gratuitous bailment liability has traditionally been expressed as being for ''gross neglect'' rather than breach of the usual standard of care in negligence.⁴⁰³ Difficulty in understanding what gross negligence is was expressed by Ormerod LJ in Houghland v. R.R. Low (Luxury Coaches) Ltd.⁴⁰⁴ An alternative formulation or explanation of the standard involved in gross negligence is to state that the gratuitous bailee is only bound to exercise such skill as he actually has,405 or would have exercised in respect of his own affairs, so that he escapes liability in showing that he exercised the same care as he has or would have exercised in respect of his own affairs, as in the agency cases of Shiells v. Blackburne⁴⁰⁶ and Wilson v. Brett.⁴⁰⁷

This expression of the duty suggests a subjective as opposed to an objective 2.100 standard. Clearly where a gratuitous bailee or agent has held himself out as possessing a particular skill or facility he will be liable for failing to employ it.⁴⁰⁸ This introduces an objective element which may be extended by considering the possibility that the bailee or agent's situation or profession is such as to imply skill which creates an expectation that it will be employed.⁴⁰⁹ It is now clear that such expressions mean that the standard is an objective one.410 It is common to see the view expressed that the duty either is the same as the usual duty of care or the duty

^402. See Bowstead, 6–076 and cases there cited.

^403. Per Holt CJ, Coggs v. Bernard (1703) 2 Ld Raym 909 at p. 913, 92 ER 107 at 110, and Giblin v. McMullen (1868) LR 2 PC 317, see generally Palmer, pp. 572 et seq, 10–005 et seq.

^{404. [1962]} QB 694 at p. 698.

^405. Beal v. South Devon Railway Co (1864) 3 H&C 337, 159 ER 560.

^{406. (1789) 1} Hy Bl 159, 129 ER 94.

^{407. (1843) 11} M&W 113, 152 ER 737, see Fridman, p. 161, Bowstead and Reynolds, Art. 44.

^408. Bowstead and Reynolds, Art. 42 (6–030), and Chaudry v. Prabhakar and Another [1989] 1 WLR 29, per Stuart-Smith LJ at p. 34. Cf Mitchell v. Lancs and Yorks Ry (1875) LR 10 QB 256.

^409. Crossley Vaines, p. 87, approved in Jenkins v. Smith (1969) 6 DLR (3d) 309 at p. 318, see Palmer, p. 591, 10.021, see also James Buchanan Co Ltd v. Hay's Transport Services Ltd [1972] 2 Lloyd's Rep 535. In this last case Hinchcliffe J, at p. 543, expressed the duty of the gratuitous sub-bailee to be ''that which a reasonable man would take of his own goods in similar circumstances''. Similar expressions appear in Port Swettenham Authority v. T.W. Wu & Co (M.) Sdn Bhd [1979] AC 580 (PC), [1979] 1 Lloyd's Rep 11, per Lord Salmon at p. 589 and p. 14 (see further (1979) 95 LQR 335) and China Pacific SA v. Food Corp of India (The Winson) [1982] AC 939, [1982] 1 Lloyd's Rep 117, per Lord Diplock at p. 960 and p. 124.

^410. Stocker LJ in Chaudry, [1989] 1 WLR 29 at p. 37.

is put in virtually the same terms.⁴¹¹ On the other hand there is still modern authority for the view that the law exacts a lesser standard from a gratuitous bailee than a bailee for reward although the line between the two standards is a fine one, difficult to discern and impossible to define.⁴¹² In Garlick v. W. & H. Rycroft Ltd,⁴¹³ the suggestion was made that the gratuitous bailee's duty is a passive one whereby he should take no action that would harm the goods. The present position may be simply that the determination of ''fault'', whether in respect of a gratuitous or contractual bailee or agent, is simply a question of determining the standard of care relevant to the circumstances and that the fact that the bailment or agency is gratuitous is simply one of the circumstances to be taken into account. Expressed in this way it may be that the gratuitous case will permit consideration of the actual skill and facilities available to the bailee or agent to be drawn in a way that might not be possible if a strictly objective standard were applied.414

2.101 Clause 23 could amount to an increase in the forwarder's responsibility where he provides a gratuitous service if there is a substantial difference between the duty of care attached to such services and those provided for a reward. There may be some argument about whether such an increased duty would be binding in the absence of consideration,415 but the clause may amount to a holding out or merely confirm a duty that could naturally be expected from a professional forwarder. The general commercial context of the relationship is likely to allay any difficulty about whether a duty of care exists at all.⁴¹⁶ See also Gomer & Another v. Pitt & Scott,⁴¹⁷ for a clear case of breach of duty on the part of a forwarder performing a gratuitous service.

2C.5.3 Extent of duty

2.102 Fundamental to any contract of agency, quite apart from the duty to exercise skill and care, is the duty to perform the undertaking, unless gratuitous, as well as the duty to follow instructions and not to exceed authority.418 Other conditions may affect this fundamental duty, but not this clause, as it is addressed to the method of performance, although it is sometimes the case that the duty to act in accordance with instructions is conflated with a duty of care.419 A forwarder may expressly or by implication of law be held to have undertaken a performance which normally implies a stricter duty, such as that of a common carrier of goods (see below) or have

^411. See Hinchcliffe J in Buchanan, fn. 409, at p. 543, Stuart-Smith LJ in Chaudry, above, fn. 408, at p. 34, and Stephenson LJ in Garlick v. W. & H. Rycroft Ltd [1982] CAT 277, (1984) 134 New LJ 60. See also to the same effect Ormerod LJ in Houghland, above, fn. 404, at p. 698.

^412. Port Swettenham Authority, above, fn. 409, per Lord Salmon at p. 589 and p. 14.

^413. Above fn. 411. See especially per Donaldson MR relying on the judgment of Diplock LJ in Morris v. C.W. Martin & Sons Ltd [1966] 1 QB 716, [1965] 2 Lloyd's Rep 63, see Palmer, p. 543.

^414. See further Palmer, p. 591, 10–021 and see Chaudry, above, fn. 408, per Stuart-Smith LJ, at p. 34, where he considered that relevant circumstances would be the ''actual skill and experience that the agent had.''

^415. But see Palmer, p. 59, 1–061.

^416. Cf Chaudry, above, fn. 408, per May LJ at p. 38 (cf Stuart-Smith LJ at p. 721).

^{417. (1922) 12} Ll L Rep 115.

^418. See Bowstead and Reynolds, Arts 36–39 and see below, para. 2C.6.

^419. See World Transport Agency Ltd v. Royte (England) Ltd [1957] 1 Lloyd's Rep 381 and Meddich & Meddich v. Cullen & Harvey (1983) 36 SASR 542, Fridman, p. 157.

imposed on him a strict liability in tort, e.g. for conversion.⁴²⁰ Should this term be construed as negating a stricter liability such as that implied into common carrier status, it may be subject to the reasonableness test under UCTA, being caught by section 3(2)(b)(i), notwithstanding the fact that it is expressed as a positive duty.

The extent of the duty of care will depend on the view taken by the courts as to 2.103 the nature of the business of forwarding and the extent of the obligations undertaken by the forwarder. The conditions recognise that the forwarder may have contracted to act as an agent or to have undertaken the more onerous duties of a person who has contracted to perform a particular operation whether personally or through subcontractors.⁴²¹ The formulation used in clause 6 of the 1989 edition, whereby the forwarder, when contracting as a principal, agrees to accept liability for loss of or damage to the goods between the time of taking the goods into its charge and the time of delivery, is strongly suggestive both of a personal and a vicarious liability in respect of those procured to perform the relevant service.⁴²² This is made somewhat clearer in clause 2.2 of the FBL so that the issue of an FBL makes clear that the forwarder will either perform the carriage himself or undertake responsibility as a carrier.⁴²³ The removal of clause 6 of the 1989 edition from the 2000 edition and maintained in the current conditions is not thought to involve any fundamental change.

Where the forwarder has agreed to carry the goods for all or part of a journey he 2.104 may be held to have the status of common carrier and be subject to the strict liability implied into that status. Former IFF Conditions expressly denied common carrier status as, for example, did clause 2 of the 1981 Conditions. Other conditions sometimes deny this as for example clause 26 of the Geologistics GTC. Whether such a denial in a printed contract can stand against conduct consistent with operations as a common carrier may be open to doubt.424 Such a denial would, however, be open to challenge for reasonableness under section 3 of UCTA.425

The test to determine common carrier status is whether the carrier held himself 2.105 out to carry for all indiscriminately, whether in respect of a class or classes of goods or over definite routes or given areas, or reserved to himself a liberty to accept or reject offers for carriage.⁴²⁶ Forwarders who collected goods for forwarding by rail were held liable as common carriers when goods were lost on the road in Hellaby v. Weaver.⁴²⁷ Forwarders were held to be common carriers by sea in the New Zealand

^420. See generally Palmer, 83 et seq., 1–091 et seq.

^421. See 2.44.

^422. Cf Spectra International plc v. Hayesoak Ltd [1997] 1 Lloyd's Rep 153 (CLCC Bus. List, reversed in part on different grounds [1998] 1 Lloyd's Rep 162 (CA)).

^423. See also the FIATA Model Rules, cl. 7.3.

^424. See Glass & Cashmore, p. 14, Palmer, p. 1488, 27–028 and Dar es Salaam Motor Transport v. Mehta [1970] HCD 179 (Tanzania), cf Eastman Chemical Int. v. NMT Trading [1972] 2 Lloyd's Rep 25.

^425. See, however, Palmer, p. 1488, 27–029, n. 212 and The Maira [1988] 2 Lloyd's Rep 126 at pp. 138–139 (reversed on different grounds [1990] 1 AC 637, [1990] 1 Lloyd's Rep 225 (HL)).

^426. Colley v. Brewers' Wharf and Transport Ltd (1921) 9 Ll L Rep 5 at p. 7 and Belfast Ropework v. Bushell [1918] 1 KB 210 at p. 215, see Glass & Cashmore, p. 12, Palmer, p. 1485, 27–027. See also Lars Gorton, The Concept of the Common Carrier in Anglo-American Law, ch. 3.

^{427. (1851) 17} LTOS 271, see Hill, p. 17.

decision in New Zealand Express Co Ltd v. Minahan. ⁴²⁸ This decision contrasts with Wilson v. New Zealand Express Co Ltd, ⁴²⁹ where forwarders who tendered for furniture removal were held not to be common carriers.430 In Wilson it was noted⁴³¹ that the forwarder did not own railways, ships or steamers. It has been suggested that strict liability may be thought too harsh a burden where the forwarder has limited means of ensuring that the goods are properly cared for in the course of their actual carriage.⁴³² There may be a doubt as to whether a forwarder, or other contracting carrier, who has never obtained possession of the goods can have the responsibility of a common carrier since he would not have become a bailee and must be counted a quasi-bailor.⁴³³ There would appear to be a rule that a person who never receives possession of the goods because they remain the responsibility of the consignor will not be liable as a common carrier.⁴³⁴ The mere fact that the forwarder does not own the vehicle will not prevent him acquiring the status of common carrier if he has hired it.435 It seems to be accepted, however, that one cannot become a bailee without taking possession at some time;436 rather, a quasibailment is involved.437 This appears to open up the possibility that the liability in quasi-bailment is not necessarily on all fours with bailment⁴³⁸ although in general the basis of liability will be the same. This type of case therefore reflects the issues of possession, bailment and the relevance of the shifting or otherwise of vicarious responsibility for the driver of a vehicle which can arise in the context of a subcontracted road carriage. These issues have not yet been fully analysed by the courts, especially in light of the recent recognition of the concept of quasi-bailment, and there are seeming contradictions in the case law. It may be said that in general unless there is a clear transfer of vicarious responsibility for the driver of a vehicle hired to a forwarder, the owner of the vehicle (who remains the employer of the driver) will become a bailee of goods placed in the vehicle, and the forwarder will be

^{428. [1916]} NZLR 816.

^{429. [1923]} NZLR 201.

^430. On the aspect of furniture removal, contrast Geering v. Stewart Transport [1967] NZLR 802.

^431. At p. 203.

^432. See Holloway, at p. 251.

^433. See generally Palmer, pp. 1255 et seq., 23–011 et seq.

^434. See Halsbury's Laws, vol. 5, Carriers, para. 303 and East India Co v. Pullen (1726) 2 Stra 690, Walker v. Jackson (1842) 10 M&W 161 and Willoughby v. Horridge (1852) 12 CB 742.

^435. Date & Cocke v. G.W. Sheldon & Co (London) Ltd, (1921) 7 Ll L Rep 53. In that case the driver appears to have remained employed by the owner of the vehicle so there is the possibility that carriage was subcontracted and that the forwarder never became an actual bailee. A possible explanation, however, is that the hire represented a bailment of the vehicle and notwithstanding the fact that the driver remained the employee of the vehicle owner, the hirer acquired sufficient control of the goods within it to be constituted a bailee of it.

^436. Metaalhandel v. Ardfields Transport Ltd [1988] 1 Lloyd's Rep 197 at pp. 202–203.

^437. Although a person may be treated as a bailee if the delegation to a subcontractor is unauthorised as in Edwards v. Newland & Co [1950] 2 KB 534, citing Palmer on Bailment (1st edn, pp. 829–831, see now 3rd edn, pp. 1309–1310, para. 23–057). Quasi-bailment may sometimes be tied with substitutional bailment so as to deny a continuing responsibility of the bailor, see above 2.55 and cases cited at fn. 225.

^438. E.g. in respect of burden of proof, Metaalhandel, at p. 202, see Palmer, pp. 1315–1316, para. 23–060, and N.E. Palmer, ''Quasi-bailment'' [1988] LMCLQ 34.

in the position of quasi-bailor rather than bailee.439 It should be noted that in Eastman Chemical International AG v. N.M.T. Trading Ltd and Eagle Transport, ⁴⁴⁰ it was held that a carrier who subcontracted the whole carriage was liable as a common carrier. Furthermore the learned judge considered that the carrier and subcontractor were in a relation of principal and agent and that the principal was liable in the same way as the agent.441

In the context of forwarding, the nature of much forwarding business may militate 2.106 against a finding of common carrier status, since a degree of regularity as to route or time is more commonly indicative of common carrier operations.⁴⁴² Furthermore a forwarding contract will often involve a package of services tailored to the individual customer, which may militate against a finding of common carriage status, such status being the more likely where carriage services are offered by the forwarder to all and sundry as a business separate from the normal forwarding activity as in Date & Cocke. 443

In the absence of specific clauses governing the extent of the forwarder's duty of 2.107 care the following summary of the case law can be made, it being assumed that there would not be a different result even if clause 23 were to be applied. The important question will be, rather, whether the obligation expressed in this clause has been excluded by other terms, either because there is a specific exclusion or because the degree of discretion given by a particular term is inconsistent with a duty of care, or whether the term can be read subject to the duty. Such a question can be considered in respect of specific terms. In a more general sense, however, it might be that the existence of this express duty may make it easier for a court to interpret a discretion granted by a term as being, nevertheless, subject to the general duty of care expressed in this clause, whereas, such a discretion may more readily be held to negate, perhaps, a duty of care implied by law.

2C.5.4 Summary of case law on forwarders' duty of care

(1) Hill 2.108 ⁴⁴⁴ states that ''A Forwarder has a duty to forward goods without delay unless he has received instructions to the contrary. He therefore has an implied authority to do so'', citing Patel v. Keeler & Co.⁴⁴⁵ An instructive case is Wessely v. Rosenberg, Loewe & Co Ltd, ⁴⁴⁶ where there was delay in collecting a package

^439. Cf L. Harris (Harella) Ltd v. Continental Express Ltd [1961] 1 Lloyd's Rep 251; A.F. Colverd & Co Ltd v. Anglo-Overseas Transport Co Ltd [1961] 2 Lloyd's Rep 352; Learoyd Bros. Ltd v. Pope & Sons Ltd [1966] 2 Lloyd's Rep 142; Bontex Knitting Works Ltd v. St. John's Garage [1943] 2 All ER 690; WLR Traders Ltd v. British and Northern Shipping Agency Ltd [1955] 1 Lloyd's Rep 554. See further Palmer, pp. 494 et seq. 7–030 et seq., and cf in particular, Donovan v. Laing, Wharton and Down Construction Syndicate Ltd [1893] 1 QB 629; Abraham v. Bullock (1902) 86 LT 796, especially Mathew LJ; and Mersey Docks and Harbour Board v. Coggins and Griffith (Liverpool) Ltd [1947] AC 1.

^{440. [1972] 2} Lloyd's Rep 25.

^441. See at p. 30.

^442. See Wilson v. New Zealand Express Ltd, above, at p. 206.

^443. See above. See also Colley, above, and Securitas (NZ) Ltd v. Cadbury Schweppes Hudson Ltd [1988] 1 NZLR 340 (CA NZ).

^444. P. 80.

^{445. [1923]} AD 506.

^{446. (1940) 67} Ll L Rep 16.

although the forwarder was not liable since the loss had occurred before the forwarder could be at fault. The fact that customs clearance has been delayed through the detention of goods by the customs authorities does not render the forwarder liable for negligence unless this has resulted from his own act or default.⁴⁴⁷ In respect of lighterage and warehousing operations the forwarder must do what is reasonable and with such dispatch as is reasonable in the circumstances prevailing at the time unless otherwise agreed.⁴⁴⁸ In respect of delay see BIFA, clauses 25 and 26(B), below.

2.109 (2) '' . . . a forwarder will be liable for breach of duty if he fails to ensure that both the quantity and the description of a consignment match his original instructions. Where, however, a forwarder finds a discrepancy in the description of a consignment, which can reasonably be ascribed to a cause other than the actual one, in the customary performance of his forwarding operations, he will not be liable for negligence in failing to discover the true position if nothing further occurs to put him on inquiry''.⁴⁴⁹ George Pulman & Sons Ltd v. F.E. Crowe⁴⁵⁰ is cited by Hill as an example of the latter point, where forwarders collected the wrong goods for return to the consignor, the mistake being induced by the fact that identical packages from different consignors had been consigned to the same consignee. The only discrepancy which might have put the forwarders on inquiry was a difference in weight which the forwarders reasonably assumed was accounted for by pilferage. No other factor existed to put them on inquiry and they were held not to have been negligent. Similarly, where goods are in good condition externally on clearing through customs, a forwarder will not be liable when they are found to be damaged on arrival at an inland destination and part of their contents missing. The forwarder is not bound to weigh the package to see if it corresponds with the invoiced weight.451

2.110 (3) '' . . . a forwarder does not customarily hold himself out as accepting responsibility for the quality of goods nor that their specification is that agreed upon by the parties to the contract of sale. This was confirmed where a forwarder was instructed by a buyer to arrange shipment of a consignment of batteries to England from Antwerp, and passed his instructions on to his sub-agent. Neither the forwarder nor his sub-agent was held responsible for the inferior quality of the batteries shipped''.452 Previous IFF trading conditions specifically excluded liability for ''any loss, damage or expense arising from or in any way connected with marks, weights, numbers, brands, contents, quality or description of any goods however caused''.453 Hill states that this only appears to restate the position at common law. A forwarder may be found liable to a third party, however, on the basis of damage

^447. Hill, p. 85, citing, Donner v. London & Hamburg Agency (1923) 15 Ll L Rep 63.

^448. Hill, p. 86, citing Club Speciality (Overseas) Inc v. United Marine [1971] 1 Lloyd's Rep 482.

^449. Hill, p. 80.

^{450. (1920) 3} Ll L Rep 100.

^451. Hill, p. 85, citing Jaffer Esmail & Co v. Sorabjee M. Hooker, 6 EALR 35 and Lavington Bros v. Cooper & Co, Worlds Carriers, Mayor's Ct, 16 October 1922. Cf George Pulman v. Crowe, above, where the forwarder was aware of a discrepancy in the weight.

^452. Hill, p. 81, citing Margolis v. Newson Bros Ltd (1941) 71 Ll L Rep 47.

^453. E.g. cl. 13(iv), 1970 Conditions.

caused by inaccuracy in the description of the goods and will require an indemnity from the customer.454

(4) ''It is the duty of a forwarder to give his client the fullest information regarding 2.111 any loss that may occur, whether responsibility for it falls on him or on the actual carrier or other bailee. If the forwarder and the carrier concerned fail to give such information to the shipper, and as a consequence they are joined together in any resulting action by the consignor, the forwarder may forfeit any costs due to him in the case, as he is in breach of his duty to his client as an agent, in circumstances where he would not otherwise be personally liable for the loss''.455 A similar duty to inform the customer '' . . . if anything arises during the conduct of that transaction which affects the goods or their value or the interest of the plaintiff in them . . . '' was expressed in G. Peereboom v. World Transport Agency Ltd, ⁴⁵⁶ where forwarders failed to inform their customer as to a difficulty arising about whether his goods had in fact been shipped. The wharfinger claimed that they had been shipped whereas this was denied by the ship. Furthermore, the forwarder gave his customer a delivery order on the wharf which signified that the goods were on the wharf at that time. Where, however, the customer has entered into direct negotiations with the carrier this may relieve the forwarder of the duty to pass on further information which might have been expected to be passed on to the customer directly by the carrier.457 A similar duty is expressed by Bowstead and Reynolds.458 It is similar also to the duty of a bailee to protect the interests of his bailor,459 and it is entirely independent of whether the forwarder has actual possession of the goods or not as in G. Peereboom v. World Transport Agency Ltd.⁴⁶⁰ In this case, however, the forwarder knew of the difficulty, which was in respect of a part of the transaction in which he was directly involved in arranging the shipment of the goods. It may be suggested that a forwarder is only bound to inform his principal of matters affecting his principal's interests which are or ought to be in his knowledge in respect of the transactions which the forwarder is engaged to perform, for example after making such checks as are to be expected of him, or where the facts are such as to impose a duty of inquiry on him.461 Furthermore, it may be correct to say that the duty only arises if it must have been apparent to the forwarder or to a reasonable person standing in his shoes that the disclosure of the relevant fact would have been of assistance to the customer.462

^454. See 2C.20 below.

^455. Hill, p. 81, citing Carl Osterberg v. Shipping & Transport Co (1922) 13 Ll L Rep 562, where forwarders had refused to give any information about what they knew had happened to the goods for fear that the customer might sue them.

^{456. (1921) 6} Ll L Rep 170, per Roche J at p. 172.

^457. Cf TICC Ltd v. COSCO (UK) Ltd [2001] EWCA Civ 1862, [2002] CLC 346, 2001 WL 1476256 (CA).

^458. Article 42.

^459. See Ranson v. Platt [1911] 2 KB 291; Coldman v. Hill [1919] 1 KB 433; Heskell v. Continental Express (1950) 83 Ll L Rep 438 at p. 456.

^460. Fn.423, above, at p. 172.

^461. See George Pulman & Sons Ltd v. F.E. Crowe (1920) 3 Ll L Rep 100 at p. 102.

^462. See Shaftesbury International Freight & Transport Ltd v. BKR Gesellschaft f¨ur Export und Import mbH (CA, 29 October 1992, unreported), where the failure of the forwarder to inform the customer of the issue of an import licence in respect of his goods was in issue.

2.112 On the other hand it was accepted by Mocatta J in Langley, Beldon & Gaunt Ltd v. Morley⁴⁶³ that ''a forwarding agent is not functus officio once he has got his clients' goods loaded on a ship; he has certain other functions still to perform in relation to documentation and perhaps in relation to acting as a post-office or a filter should the shipowner require further directions as to what is to happen, and that, in any case, his duty is to do all that he reasonably can to further the safe arrival of the goods to the consignee at the destination''. This was said in the context of a forwarder seeking to prevent delivery to a consignee in order to enforce a lien.⁴⁶⁴ Unless the forwarder is engaged to effect delivery at the destination, this statement would seem to go too far if taken to impose on a forwarder a responsibility to ensure delivery especially in light of point (6), below. Nevertheless it is an implied term of a forwarding contract that a forwarder engaged to arrange the carriage of goods has a duty to put in a claim for loss in due time, at least to the extent of writing a letter to the carrier.465 In Aqualon (UK) Ltd v. Nilsson International B.V., ⁴⁶⁶ in the course of describing argument by counsel it was suggested that a forwarder in the position of acting as a principal in engaging a carrier, but without accepting a continuing liability towards his customer, has a duty to enforce the contract of carriage for the benefit of his customer. It would seem more likely that such a term would need to be express.467 Where a forwarder was engaged to effect insurance and pursued the claim on the customer's behalf, Tuckey LJ in Granville Oils & Chemicals Ltd v. Davies Turner & Co Ltd⁴⁶⁸ accepted that, in the circumstance, the forwarder owed a duty to tell the customer that they had no cover as soon as the underwriters rejected the claim.

2.113 (5) ''If a forwarder is negligent in selecting a carrier he will be liable to his client for any loss that may result from such a choice''.469 In Gillette Industries Ltd v. W.H. Martin Ltd, Willmer LJ⁴⁷⁰ accepted that, when engaging a haulier from a lorry pool, the failure by the forwarder to take some of the recommended precautions such as checking the driving licence of the driver, obtaining his name and address and communicating with the owner of the lorry was prima facie evidence of negligence, although the forwarder was protected by the exclusion clause in the trading conditions as formulated at that time. On the other hand, it was not negligence on

^{463. [1965] 1} Lloyd's Rep 297 at p. 307. Cf Marston Excelsior Ltd v. Arbuckle, Smith & Co [1971] 2 Lloyd's Rep 306 at p. 312.

^464. See 2C.9, below. A natural part of the forwarder's duty is to ensure that relevant documentation is properly prepared and transmitted to the right person, see A.R. Brown McFarlane & Co Ltd v. Shaw Lovell & Sons Ltd (1921) 7 Ll L Rep 36 and Hirdaramani v. OCS, HK High Ct, 18 July 2000 (see www.onlinedmc.co.uk).

^465. Marbrook Freight v. KMI (London) Ltd [1979] 2 Lloyd's Rep 341.

^{466. [1994] 1} Lloyd's Rep 669.

^467. Cf the contract under consideration in Kala Ltd v. International Freight Services (UK) Ltd (QBD, 7 June 1988, unreported) where there was an express term by which the forwarder agreed to subrogate its claim against carriers etc., to the customer on request.

^{468. [2003]} EWCA Civ 570, (2003) WL1822907 at para. 27.

^469. Hill, p. 82, citing Gillette Industries Ltd v. W.H. Martin Ltd [1966] 1 Lloyd's Rep 57. Even if the selection of a contractor arises from a forwarder's negligent advice, so long as the actual selection made by the forwarder is not negligent he might succeed with the argument that the negligent advice is not the direct and proximate cause of the loss, as in the US case of Pacific Tall Ships Co v. Kuehne and Nagel Inc [2000] AMC 2250 (ND Ill. Eastern District).

^470. Previous note, at p. 67.

the part of a forwarder who was handling a shipment of hides, where he could not employ an experienced contractor who specialised in hides as none was available, to employ instead a reasonably competent wharfinger who did not normally handle hides and who was over-committed in respect of other shipments, with the result that the goods were damaged.471 A further dimension to the process of selection of a carrier or other performer is the selection of terms upon which operators contract. Any duty in this respect is considered in the context of the liberties of the forwarder.472

(6) A forwarder has no duty ''to supervise the actions of a firm which they 2.114 reasonably and properly expected would perform its normal duty competently''.473 This is subject to the possibility that the forwarder may have taken on a greater responsibility in respect of performance. It must also be distinguished from the situation where the forwarder delegates the whole or part of the exercise of his authority. In such a case he will have a non-delegable duty in respect of its exercise by another even if permitted by the contract.474 This will, however, be a contractual responsibility only and will not normally be matched by any equivalent nondelegable duty in tort.475
(7) A forwarder is not obliged to take special precautions above the normal 2.115 expected in the trade to guard against fraud or crime committed by a third party unless he has contractually bound himself to do so.476
(8) Unless a specific size of vehicle has been agreed a forwarder may not be in 2.116 breach of duty in supplying a vehicle too small for the customer's needs if this is in accordance with the procedure previously agreed and understood between them,477 although in general it is not necessary for the customer to request that which ordinary care demands.⁴⁷⁸ The ordinary duty of care applicable to carriers for reward will apply to a forwarder who has contracted to effect carriage.479

^471. Hill, p. 86, citing G.W. Sheldon & Co (London) Ltd v. Alfred Young & Co (1921) 6 Ll L Rep 466.

^472. See 2C.6.5.

^473. Per Phillimore LJ, Marston Excelsior v. Arbuckle Smith & Co Ltd [1971] 2 Lloyd's Rep 306 at p. 312, see, however, below text to fn. 483. See also Jones v. European & General Express Co Ltd (1920) 4 Ll L Rep 127.

^474. Cf Henderson v. Merrett Syndicates Ltd (No. 1) [1995] 2 AC 145, [1994] 2 Lloyd's Rep 468, [1995] 3 All ER 506.

^475. See Aiken v. Stewart Wrightson Members Agency Ltd [1995] 2 Lloyd's Rep 618.

^476. Pringle of Scotland Ltd v. Continental Express Ltd [1962] 2 Lloyd's Rep 80, Hill, p. 87.

^477. E.W. Taylor & Co (Forwarding) Ltd v. Bell [1968] 2 Lloyd's Rep 63.

^478. Date & Cocke v. G.W. Sheldon & Co (London) Ltd (1921) 7 Ll L Rep 53.

^479. Case law involving an issue of breach of the standard of care includes: Pye Ltd v. B.G. Transport Service Ltd [1966] 2 Lloyd's Rep 300; Mayfair Photographic Supplies (London) Ltd v. Baxter Hoare & Co Ltd [1972] 1 Lloyd's Rep 410; A.F. Colverd & Co Ltd v. Anglo Overseas Transport Co Ltd [1961] 2 Lloyd's Rep 352; Metaalhandel J.A. Magnus BV v. Ardfields Transport Ltd [1988] 1 Lloyd's Rep 197; Victoria Fur Traders Ltd v. Roadline (UK) Ltd [1981] 1 Lloyd's Rep 570; Johnson Matthey Ltd v. Constantine Terminals Ltd [1976] 2 Lloyd's Rep 215; McKinnon v. Acadian Lines Ltd (1978) 81 DLR (3d) 480; Cowper v. J.G. Goldner Pty Ltd (1986) 40 SASR 457; Securitas (NZ) Ltd v. Cadbury Schweppes Hudson Ltd [1988] 1 NZLR 340; Rick Cobby Haulage Pty Ltd v. Simsmetal Pty Ltd (1986) 43 SASR 533; Hobbs v. Petersham Transport Co Pty Ltd (1971) 124 CLR 220; Thomas National Transport (Melbourne) Pty Ltd v. May & Baker (Australia) Pty Ltd (1966) 115 CLR 353; Presvale Trading Co Ltd v. Sutch & Searle [1967] 1 Lloyd's Rep 131; Swiss Bank Corp and Others v. Brink's-MAT Ltd and Others [1986] 2 Lloyd's Rep 79.

2.117 (9) In ordinary commercial transactions there is no duty on the forwarder to insure the goods or inquire whether the customer is insured.480 However in Eastman Chemical International AG v. N.M.T. Trading Ltd and Eagle Transport, ⁴⁸¹ it was accepted that where a contracting carrier chooses to subcontract there is an implied term that they will entrust the goods to someone who insures the goods under a goods in transit policy.482
2.118 (10) Although a forwarder, acting as an agent, is not liable for a breach by a carrier of the contract of carriage, where care has been exercised in the appointment, there may be a liability for breach of a duty of care where the forwarder has given a warranty which depends upon the carrier properly performing the contract of carriage. This was held in an important decision of the Court of Appeal, which repays some attention, in Geofizika DD v. MMB International Ltd Greenshields Cowie & Co Ltd (Third Party) (The Green Island).⁴⁸³ The forwarders were instructed by a seller, having contracted with a buyer on the terms CIP (Incoterms), to obtain carriage and effect insurance in respect of three ambulances to be carried by sea to Libya. The instruction was for ro-ro carriage which the forwarders understood as meaning that under deck carriage was required. The forwarders obtained the contract of carriage under the carrier's ro-ro service which the forwarders understood meant that the goods would be carried under deck. In fact a perusal of the carrier's website would have revealed that the available ships were not likely to provide a ro-ro service and that vehicles were, at least sometimes, strapped to other cargo carried on deck. The bill of lading contained the usual liberty to stow on deck⁴⁸⁴ but the forwarders had received a confirmation note that stated ''ALL VEHICLES WILL BE SHIPPED WITH 'ON DECK OPTION' this will be remarked on your original bills of lading . . . ''. The forwarders understood this to mean that if there was no indication of carriage on deck in the bill of lading then the vehicles would be shipped below deck. The argument for the carrier and buyers was that this was a reference to an option that would be claimed in the bill of lading. On the strength of their understanding the forwarders gave a warranty of shipment under deck to the insurers.
2.119 In the lower court HHJ Mackie QC held in favour of the buyers and in favour of the sellers in their claim over against the forwarders. He held that, although the confirmation note was ambiguous, the carrier's interpretation of the confirmation note was correct and that there was no clear evidence (absent any expert evidence) that a reference to ro-ro was necessarily a reference to under deck stowage. The sellers were therefore liable to the buyers for failing to match the insurance with the carriage and to obtain a proper insurance which covered the loss. The sellers argued that the forwarders were liable to the sellers because of breach of the obligation to use reasonable skill and care. As a specialist freight forwarder engaged to put in

^480. W.L.R. Traders Ltd v. B. & N. Shipping Agency Ltd [1955] 1 Lloyd's Rep 554 at p. 558. Cf Von Traubenberg v. Davies, Turner & Co Ltd [1951] 2 Lloyd's Rep 462. 481. [1972] 2 Lloyd's Rep 25.

^482. Cf further, Mason v. Morrow's Moving & Storage Ltd [1978] 4 WWR 534; Punch v. Savoy's Jewellers Ltd (1986) 26 DLR (4th) 546; Firmin and Collins Ltd v. Allied Shippers Ltd [1967] 1 Lloyd's Rep 633; Garlick v. W. & H. Rycroft Ltd [1982] CAT 277, (1984) 134 New LJ 607.

^{483. [2010]} EWCA Civ 459, [2010] 2 Lloyd's Rep 1.

^484. See 4G.3.4.

place a compliant CIP contract their failure to do this amounted to an absence of the requisite skill and care. A specialist freight forwarder must be taken to know what CIP requirements are and be capable of putting relevant contracts in place as part of the obligation to exercise reasonable skill and care under BIFA terms. Further, they claimed that the forwarders' obligations imposed a further duty on them. Whilst the sellers' insurance obligation to the buyers was only to the ICC(C) minimum cover standard and that a breach of the CIP carriage obligation could not increase the CIP insurance obligation since these are distinct, the forwarder owed a broader duty to the seller to exercise reasonable skill and care. If the forwarders failed to put in place a CIP compliant contract to carry because this permitted carriage on deck, they failed to exercise reasonable skill and care by including the under deck warranty in the insurance contract. Had the warranty not been included the loss would have been covered notwithstanding breaches in relation to the contract of carriage.

rejected the interpretation of the judge in the court below and accepted the

This latter point was a particular point of focus in the Court of Appeal. The court 2.120

forwarders' view of the confirmation note. Consequently the carrier was in breach of an obligation to carry below deck. The sellers were not liable to the buyers for this failure but liable for failing to provide a valid insurance due to the existence of the warranty. The forwarders were liable because they were negligent in giving the warranty. For Thomas LJ485 it was incumbent on the freight forwarders, who were in no different a position to insurance brokers, to check that the facts they were warranting were true were in fact true. Although a different conclusion was given to the meaning of the booking confirmation, the judge was still right to find that, in circumstances where they had not dealt with the carriers before, they simply could not rely upon the fact that they had arranged a contract with the carriers that, if performed in accordance with its terms, would have resulted in the matters warranted being true. The consequences of a breach of warranty are so severe, the warranty should not have been given without due care being taken to check that the cargo was under deck. This conclusion does not involve any guarantee by the freight forwarder that the carrier will perform his contract or any supervision by the freight forwarders of the carriers' obligation. It is a conclusion simply that on the facts of this case, the judge was entitled to conclude that the freight forwarders should not have given a warranty in relation to a fact without taking reasonable steps to check that that fact was accurate. Notwithstanding these breaches neither the sellers nor the forwarders were held liable to pay damages since the buyers had suffered no loss. Even if the warranty had not been given the buyers would still not have recovered for the loss under the insurance that it was the obligation of the sellers to obtain for them.

It is important to emphasise the importance of the warranty's effect in the 2.121 determination of the breach of the duty of care. It might be thought that the failure to appreciate the possibility that the carrier might well stow the goods on deck combined with the failure to appreciate the ambiguity in the confirmation note might be a sufficient breach in itself but this is not the finding. Also it is not clear

whether the absence of such a finding is due to its being untenable or because it would anyhow have produced no loss. Arguably the sellers might have been held liable to the buyers for negligence in the failure to obtain an effective contract with an appropriate carrier vicariously through the forwarders' negligence. There may yet still be the possibility that a forwarder might be held liable for failing to engage in simple checks so as to have some confidence that the carrier is an appropriate one for the kind of goods to be transported.

2.122 (11) It is clear that at common law where a forwarder acts as a contractual bailee the burden of proving either the absence of negligence or otherwise providing an explanation of the loss rests on him.486 This rule appears also to apply to subbailees,⁴⁸⁷ and gratuitous bailees,⁴⁸⁸ but is less clear in respect of quasi-bailment.489 Apart from this and especially where the forwarder is not acting as a bailee, it may be that since the BIFA Conditions, by clause 24, state exceptions to liability, then, as a matter of construction, the forwarder will be put to proof of them to escape liability in a claim for breach of contract.490

2C.5.5. Duty of good faith

2.123 There is no general requirement of good faith currently and generally applicable to contracts under English Law at least in respect of rendering an uncertain contract enforceable by means of an implied term to continue to negotiate in good faith.⁴⁹¹ Specific rules govern fraud and duties not to deceive. Some contracts involve a special duty of good faith as is the case with insurance and there are special duties applicable to fiduciaries which can apply to forwarders and logistics operators when they act as agents. The nature of logistics contracts where they involve a close interaction between the parties over time may make it more appropriate for wider duties of good faith to apply to the relationship. Unlike standard forwarding, therefore, there may be more room for the operation of fiduciary duties even in the absence of any express term. The requirement in clause 4.1 of TT CLUB 600 to cooperate in good faith to promote the smooth running of the agreement adds an extra dimension in providing an express term imposing the duty as an underlying basis for an established contract. It is referred to again in clause 15.1 where, if the logistics provider in the light of any new logistics profile or material change in the volume of services thinks it necessary, the parties will negotiate in good faith to vary

^486. Palmer, pp. 52 et seq., 1–053, Hill, p. 85, Travers & Sons Ltd v. Cooper [1915] 1 KB 73; The Ruapehu (1925) 21 Ll L Rep 310; Wessely v. Rosenberg, Loewe & Co Ltd (1940) 67 Ll L Rep 16; Swan v. Salisbury Construction Co Ltd [1966] 1 WLR 204; W.L.R. Traders, para. 7.2.7.27, above; B.R.S. Ltd v. Arthur V. Crutchley Ltd [1968] 1 All ER 811; Houghland v. R.R. Low (Luxury Coaches) Ltd [1962] 1 QB 694; Euro Cellular (Distribution) plc v. Danzas [2003] EWHC 3161 (Comm), [2004] 1 Lloyd's Rep 521. For a case concerning discharge of the burden, see Coopers Payen Ltd v. Southampton Container Terminal Ltd [2003] EWCA Civ 1223, [2004] 1 Lloyd's Rep 331.

^487. Palmer, p. 1338, 23–077.

^488. Port Swettenham Authority v. T.W. Wu & Co Ltd (M.) Sdn Bhd [1979] AC 580, [1979] 1 Lloyd's Rep 11, Palmer, p. 603, 10–030.

^489. Metaalhandel J.A. Magnus BV v. Ardfields Transport Ltd, fn. 395, above.

^490. Cf Sutcliffe v. G.W. Ry [1910] 1 KB 478 at p. 493. See further below and cf TT CLUB, cl. 27(A). Contrast Geologistics GTC, cl. 27.

^491. Walford v. Miles [1992] 2 AC 128. See generally, Treitel, 2–100 et seq.

the charges and in clause 23.2 where the parties agree to attempt in good faith to substitute a clause held invalid or unenforceable. There is some suggestion that an express duty to negotiate in good faith might be enforceable.492 Furthermore, the inability to agree on some terms does not necessarily make an agreement as a whole unworkable or void for uncertainty.493 The courts may be able to add content through a reasonableness criterion, at least where the parties say simply that some patricular matter is to be agreed,⁴⁹⁴ or when the good faith requirement is supplemented by words such as ''reasonable endeavours''495 to which some objective content might be given.

2C.6 LIBERTIES OF THE FORWARDER—AS AGENT

BIFA 2005A Clause 6(A) and BIFA 1989, clause 7 2.124

6.(A) When the Company acts as an agent on behalf of the Customer, the Company shall be entitled, and the Customer hereby expressly authorises the Company, to enter into all and any contracts on behalf of the Customer as may be necessary or desirable to fulfil the Customer's instructions, and whether such contracts are subject to the trading conditions of the parties with whom such contracts are made, or otherwise.496
7. When and to the extent that the Company in accordance with these Conditions is acting as an Agent on behalf of the Customer, the Company shall be entitled and the Customer hereby expressly authorises the Company to enter into Contracts on behalf of the Customer:—
(A) for the carriage of goods by any route or means or person;⁴⁹⁷
492. See Treitel, at p. 62 and the dicussion of the view of Longmore LJ in Petromec Inc v. Petroleo Brasileiro SA Petrobras [2005] EWCA Civ 891, [2006] 1 Lloyd's Rep 161 at [121].
493. RTS Flexible Systems Ltd v. Molkerei Alois Muller GmbH & Co KG [2010] UKSC 14, [2010] 1 WLR 753 (Treitel, p. 57, 2–093).
- 494. See e.g. MRI Trading AG v. Erdenet Mining Corp LLC [2012] EWHC 1988 (Comm).
- 495. See e.g. Jet2.Com Ltd v. Blackpool Airport Ltd [2012] EWCA Civ 417, 2012 WL 1067776.
496. The wording of the equivalent clause in BIFA 2000 gave authority to enter such contracts as may be necessary etc and subject to the trading conditions of the other party. The introduction of the word ''whether'' in cl. 6(A) would seem to make clearer the emphasis on the necessity for the contract, the fact that it being subject to conditions being incidental. The previous wording would seem to give more direct authority to bind the customer to the conditions so long as the contract was necessary. More generally it can be compared with TT CLUB 400, cl. 40(A) which gives the club as an agent authority to enter into contracts on the customer's behalf and to do such acts so as to bind the customer to such contracts and acts in all respects notwithstanding any departure from the customer's instructions. Cf DAMCO Standard Trading Conditions which are similar but omit reference to departure from the customer's instructions. However, cl. 38(a) of these conditions entitles the Company to depart from instructions if in the reasonable opinion of the Company there is good reason to do so in the Customer's interest. Clause 19(a) of TT CLUB 400 is in the same terms. The question could arise whether cl. 19 (a) would be overridden by cl. 40(a) of these conditions if circumstances arose which brought them into conflict.
1. The reference to route etc., in BIFA 1989 was matched by cl. 8 of those conditions which also gave a liberty as to route etc. It would seem to have been clear that cl. 7 related to the agency role and cl. 8 to where the forwarder acted as principal. Clause 7 was excised as from BIFA 2000 and although cl. 8 remained (as cl. 7, see 2.124.) leaving some doubt as to whether the new cl. 7 related to the agency or principal role or both. Given that cl. 6 of BIFA 2000 (now BIFA 2005A, cl. 6(A)) dealt with agency it might be that cl. 7 of BIFA 2000 remained confined to where the forwarder acts as principal, although the intention may well have been to cover both types of role. The equivalent clause in BIFA 2005A (cl. 4(B)) now appears to be clearer in that it applies to the performance of any service and is not confined to the ''handling, stowage and transportation of goods'' as in cl. 7 BIFA 2000. Compare Geologistics GTC, cl. 20 which provides for a liberty in the section dealing with the company acting as a forwarding
(B) for the storage, packing, trans-shipment, loading, unloading, or handling of the goods by any person at any place and for any length of time;
(C) for the carriage or storage of goods in or on transport units as defined in Clause 19 and with other goods of whatever nature; and
(D) to do such acts as may in the opinion of the Company be reasonably necessary in the performance of its obligations in the interests of the Customer.⁴⁹⁸

2C.6.1 Interrelationship of clauses

2.125 The BIFA 2005A Conditions give the liberty in clause 6(A) where the forwarder acts as an agent,499 with a liberty given in clause 5 applicable when the forwarder acts as a principal.500 An additional liberty is given in clause 7 of BIFA 2000.501

2C.6.2 Discretion and instructions

2.126 BIFA 1989, clause 7, aims to give the forwarder a discretion in the performance of his mandate in respect of the matters indicated. At common law, the court would have to find the discretion in the instruction and the clause may go some way to persuade a court that the forwarder was intended to have a discretion and does not have to justify a choice by reference to a customary or previous course of dealing,⁵⁰² nor be restricted by such factors as are relevant to deviation.503 Furthermore, in the absence of clear instructions agents, at common law, are entitled to do what is reasonable in their own interests and those of their principal.504 It is assumed that the qualification in sub-clause (D) that the act be reasonable in the interests of the customer does not relate back to the liberties granted by sub-clauses (A) to (C). Clause 6(A) of the current conditions refers to contracts which are necessary or desirable rather than reasonable. It may be arguable that this clause is limited to the making of types of contract in general rather than providing a discretion in respect of the form such contracts might take (e.g. as to means, route, etc) and clause 4(B) of the current conditions might be necessary to expand the discretion.505

agent (cf further, Geologistics GTC, cl. 9 which is contained in the general section) and TT CLUB 400 which provides for a similar liberty by cl. 18 in the general section (and note the liberty in cl. 40(a) applicable to the forwarder as an agent, see above fn. 496).

^498. This could provide authority for an act for which the forwarder would otherwise need express or implied authority to justify, especially when seeking an indemnity for expenses in relation to it, i.e. it would enable the act to be viewed as forming part of the instruction so as to justify the indemnity. The forwarder would need to show that he held the opinion that doing the act was reasonably necessary in the interests of the customer and presumably the court could require that opinion to be based on some grounds. It is less clear whether the wording would be sufficient to justify action that would otherwise be contrary to duty and would normally require specific authority e.g. delegation of authority, see 2C.8. below. Cf HAFFA Conditions, cl. 5.2.

^499. See also Geologistics GTC, cl. 20 and TT CLUB 400, cll. 18 and 19. Cf further, DAMCO STC, cl. 37.

^500. See 2.134.

^501. See 2.124.

^502. Cf E.W. Taylor & Co (Forwarding) Ltd v. Bell [1968] 2 Lloyd's Rep 63.

^503. See 2C.7.2.

^504. Morten v. Hilton Gibbes & Smith [1937] 2 KB 176.

^505. See, however, fn. 471.

The extent of the discretion will naturally be limited by reference to the 2.127 obligations undertaken by the forwarder or instructions received which is normally suggested in any case by the terms of typical clauses of this type.506 For example, an agency to arrange transport does not necessarily follow from an instruction to arrange shipping documentation for the purpose of compliance with a letter of credit.⁵⁰⁷ Consequently it is unlikely that a forwarder could justify action on the basis of such clauses if the forwarder has not been placed under any obligation. Conversely, a forwarder is not necessarily required to act and may be entitled to wait if the understanding with his customer is to act on receipt of a specific instruction as in World Transport Agency v. Royte, ⁵⁰⁸ where the forwarder was held not to be negligent in failing to act. Any freedom of choice granted by such clauses is subject, however, to the possibility that a clear instruction given orally509 or in writing will override the printed clause as in J Evans & Son (Portsmouth) Ltd v. Andrea Merzario Ltd ⁵¹⁰ on the basis of either a collateral warranty or that the written document does not express the whole terms.511 A further possible basis might be an estoppel as to the meaning of the terms.⁵¹² By analogy with deviation cases,513 the liberty given should be read alongside the agreement contained in the forwarder's instructions and reconciled with it so that there is a discretion to act to an extent that does not contradict the instructions and is for the purpose of carrying them out.

There may be an argument that, since these clauses do not, as in previous editions 2.128 of IFF Conditions,⁵¹⁴ state that such liberty as is granted by them is subject to express instructions in writing, this implies that the forwarder is not prepared to accept binding instructions and always reserves a liberty. Such an interpretation is questionable especially as these clauses do not state515 that they apply even if precise instructions have been given.516 Furthermore, even where a clause provided that the forwarder's freedom was limited only by instructions given in writing, it has been held that such words in a printed document could not override a clear oral undertaking.⁵¹⁷ This form of wording is retained in TT CLUB 400, clause 18 and

^506. E.g. BIFA Clause 6(A) refers to entering into contracts necessary or desirable to fulfil the customer's instructions.

^507. F.H. Bertling v. Tube Developments Ltd [1999] 2 Lloyd's Rep 55 (Scotland, Court of Sessions, Commercial Court).

^{508. [1957] 1} Lloyd's Rep 381.

^509. Note that the forwarder is not bound to wait for written confirmation of an oral instruction, Comptoir Franco-Anglais d'Exportation v. Van Oppen, fn. 518.

^{510. [1976] 1} WLR 1078, [1976] 2 Lloyd's Rep 165.

^511. Weis v. Northern Traffic (1919) 1 Ll L Rep 241.

^512. Yani Haryanto v. E.D. & F. Man (Sugar) Ltd [1986] 2 Lloyd's Rep 44, 46–47; Atlantic Lines & Navigation Co Inc v. Hallam Ltd (The Lucy) [1983] 1 Lloyd's Rep 188.

^513. See 2C.7.2.

^514. E.g. cl. 4 of 1974 edn.

^515. As they might, see IFF Conditions 1981, cll. 3 and 4 and 1984, cl. 4(D).

^516. An appeal to the words ''expressly authorises'' would not necessarily suffice since they may be taken to mean that since the authority is given by the clause such authority need not be implied, which does not justify overriding instructions otherwise also expressed.

^517. Evans v. Merzario, fn. 510 above.

may be useful to justify a refusal to carry out a subsequent instruction unless given in writing.⁵¹⁸

2.129 Clause 4(D) of the 1984 edition of the IFF Conditions gave the forwarder liberty to depart from instructions if reasonable in the interests of the customer.⁵¹⁹ If such a liberty could override a clear instruction, which may be doubtful where the forwarder, by accepting it, is considered to have undertaken to perform in the way directed, the present BIFA clauses may be inadequate in that they do not expressly give the forwarder authority to depart from instructions.⁵²⁰ They may need to do this since the likely interpretation of these clauses is that they are applicable only where no precise instruction in the matters indicated has been given. In other words the clauses as they stand grant a discretion which could not operate so as to contradict the instructions given by the customer properly understood, but a clause which gave such a right could so operate subject to the possibility that the instructions were understood by the customer as overriding such freedom as in Evans v. Merzario.

2C.6.3 Application of UCTA

2.130 Questions as to the exclusion or limitation of liability for breach of instructions are considered at 2C.22 and 2C.23. Issues as to the application of UCTA can also be raised here. If the freedom granted by these clauses were thought to contradict what might otherwise have been implied (or not implied)521 it might be considered as entitling the forwarder to render a performance substantially different from what was reasonably expected from him and so be caught by UCTA, s. 3(2)(b)(i), unless they can be construed as merely defining the duty of the forwarder and thereby negating a duty that might otherwise be implied.⁵²² This could be particularly important where the method of performance normally would be impliedly unauthorised, e.g. stowage of goods on the deck of a ship.523
2.131 Some clauses may go further than simply permitting the forwarder to exercise a discretion or to depart from instructions. They may permit the forwarder to cease performance altogether. Similar clauses appear also in standard carriage contracts. For example, TT CLUB 400, clause 19(b) allows the forwarder to comply with orders of any authority and provides that on compliance the forwarder's responsibility is to cease. Again the issue would arise as to whether this is caught by section

^518. Cf Comptoir Franco-Anglais d'Exportation v. Van Oppen (1922) 13 Ll L Rep 59. Normally, as an agent the forwarder would be bound to obey an instruction given orally altering a previous instruction even if given in writing, Meddich & Meddich v. Cullen & Harvey (1983) 36 SASR 542, Fridman, p. 157.

^519. Cf Geologistics GTC, cl. 20, P&O Nedlloyd STC 1997, cl. 4(B) and TT CLUB 400, cl. 19(A), similarly TT CLUB 400, cl. 40(A).

^520. As, e.g., do TT CLUB 400, cll. 19(a) and 40(a) and DAMCO Standard Trading Conditions, cl. 38(a).

^521. Or give freedom to depart from express instructions.

^522. See Treitel, pp. 267–8 and 273–4.

^523. TT CLUB 400, cl. 18(B) gives freedom to the forwarder to arrange carriage on deck unless otherwise agreed in writing. Geologistics GTC, cl. 9 provides that the company shall not be obliged to arrange for the goods to be carried, stored or handled separately from the goods of other customers, cf BIFA 1989, cl. 7(C).

3(2)(b)(ii) of UCTA as a claim to be entitled to render no performance or as a clause which merely defines the duty of the forwarder in a way that is not caught by that Act.524 TT CLUB 400, clause 20 might seem to be somewhat clearer since it grants the forwarder a discretion to terminate performance of the contract in circumstances such as hindrance, risk, delay, difficulty or disadvantage which cannot be avoided by reasonable endeavours. This can, perhaps, be construed as defining the duty of the forwarder as a duty to perform only when such circumstances are not present.525

2C.6.4 Obedience and negligence

Obedience to instructions and the duty to exercise skill and care can be analysed as 2.132 separate obligations, but as is illustrated by World Transport Agency v. Royte⁵²⁶ they are sometimes conflated.⁵²⁷ Certainly issues of negligence can arise where there is negligence in the means of performing the act, or where the act is only necessary because of the negligence of the forwarder or because the forwarder is deemed negligent in failing to inform the principal of the need to act. An agent given a discretion to exercise must use skill and care in doing so.528 Whether negligence in the exercise of the choice can be excused by clauses such as these is more difficult. This seems particularly unlikely in the context of BIFA 2005A in the light of clause 23529 which imposes a positive duty of care. Even without the addition of clause 23 such liberty clause may be said not to place fairly the risk of such negligence on the customer.⁵³⁰ Such negligence, however, would not in itself be a performance outside the parameters of the contract.531

2C.6.5 Choice of terms

Clause 7 of the BIFA 1989 edition omitted to give any discretion in respect of the 2.133 choice of contract terms when making contracts for the customer. This is treated to a limited extent in clause 16 of BIFA 2005A,532 where there is, in effect, a choice of terms offered by carriers themselves as opposed to a choice between the terms offered by different carriers etc. It is unlikely to be covered by the word ''acts'' in

^524. See Treitel, p. 273–4.

^525. Cf cl. 5, 1984 edn, IFF Conditions.

^526. Above fn. 508. Cf Meddich & Meddich v. Cullen & Harvey, above fn. 518.

^527. The case might, perhaps, have been decided on the basis of obedience, and the question of negligence left to the issue of the steps taken to inform the principal of the difficulty.

^528. Bowstead and Reynolds, Art. 40. Cf Henderson v. Merrett Syndicates Ltd [1994] 2 Lloyd's Rep 468 at p. 490, [1995] 3 All ER 506 at p. 523, per Lord Goff.

^529. Clause 26 of BIFA 1989. See the inconclusive discussion of an issue of this type at first instance in Geofizica DD v. MMB International Ltd [2009] EWHC 1675 (Comm) at [26]–[28].

^530. Compare where an ''absolute discretion'' is given to an agent Glasgow West Housing Association Ltd v. Siddique 1998 SLT 1081.

^531. See further the discussion of cl. 4(B) (cl. 7 of BIFA 2000 and cl. 8 of BIFA 1989) at 2C.7.

^532. Clause 18 in the 1989 edition, below, 2C.16.

sub-clause (D) of clause 7,533 although the freedom to contract with any person in sub-clause (A) might be construed as including the terms on which such persons contract.⁵³⁴ Clause 6(A) of BIFA 2005A might be construed as giving authority to contract on trading conditions but this may do little more than indicate what would be implied especially in view of the further discretion given in clause 16. In the absence of an express term, authority to contract on some terms must be implied and the forwarder, in making a choice, must act reasonably and in good faith but will usually bind his principal to terms usual in the trade by analogy with Morris v. C.W. Martin & Sons.⁵³⁵ A decision with more direct relevance is Swiss Bank Corp v. Brink's-MAT Ltd, ⁵³⁶ where there was evidence that the terms were widely used in handling the type of cargo and it was not unreasonable or unusual to trade on such terms. This case compares, however, with Elof Hansson Agency v. Victoria Motor Haulage Co Ltd, ⁵³⁷ where the relevant term had not been generally accepted nor judicially recognised and the plaintiffs would have assumed that an older and less onerous clause would have applied. Where there is a choice of terms the forwarder may be required to seek instructions from his customer by analogy with the position at common law where a carrier provides alternative terms.538 However, greater latitude may be granted where a commercial customer sending ordinary merchandise is involved and the more important question is the quality and speed of the service provided by the choice of operators.

2C.7 LIBERTIES OF THE FORWARDER—AS PRINCIPAL

2.134 BIFA 2005A, clauses 4(B) and 5

4.(B) The Company reserves to itself full liberty539 as to the means, route and procedure to be followed in the performance of any service⁵⁴⁰ provided in the course of business undertaken subject to these conditions.541

533. Compare TT CLUB 400, cl. 18 which permits the entry into contracts on any terms whatsoever without notice to the Customer (cf DAMCO Standard Trading Conditions, cl. 37). The terms and conditions of the National Customs Brokers and Forwarders Association of America authorise the selection of and engaging of carriers subject to all conditions etc. This was applied in ABN AMRO Verzekeringen BV v. Geologistics Americas Inc [2003] AMC 834 (SDNY).
534. Cf the US decision of Bronislaw Tarnawski v. Schenker Inc [2003] AMC 2230 (WD Wash (Tacoma)) where the express liberty granted to an NVOCC to ''choose or substitute the means, route and procedure to be followed in the . . . transportation of the goods'' was sufficient authority to bind the cargo owner to the ocean carrier's bill of lading.
535. [1966] 1 QB 716, [1965] 2 Lloyd's Rep 63. See also Singer v. Tees & Hartlepool Port Authority [1988] 2 Lloyd's Rep 164 and Spectra International plc v. Hayesoak Ltd [1997] 1 Lloyd's Rep 153.
- 536. [1986] 2 Lloyd's Rep 79, at p. 98.
537. (1938) 54 TLR 666. A useful comparison can also be made with the duty of a seller to make a ''reasonable'' contract with a carrier on behalf of his buyer under s. 32(2) of the Sale of Goods Act 1979. This in turn depends upon contracting on usual terms as to which see Thomas Young v. Hobson and Partner (1949) 65 TLR 365.
- 538. As in Von Traubenberg v. Davies Turner [1951] 2 Lloyd's Rep 462.
539. The previous version of this clause in cl. 7 of BIFA 2000 gave the Company a reasonable liberty rather than a full liberty as in the current clause.
540. The previous version of this clause in BIFA 2000 confined the liberty to the handling, storage and transportation of goods.
541. There may have been some doubt about whether the previous version of this clause applied only where the forwarder acted as a principal or applied whether the role is that of principal or agent but the addition of the words ''any service'' etc may have resolved this, see above fn. 497. Clause 5 of the FIATA

5. When the Company contracts as a principal for any services, it shall have full liberty to perform such services itself, or, to subcontract on any terms whatsoever, the whole or any part of such services.542

2C.7.1 Liberty and instructions

Where forwarding conditions take account of the possibility that the forwarder may 2.135 act as principal rather than as agent they may include liberties which correspond to those considered in the previous section. These will tend to focus on modes of performance rather than contracts. Similar liberties appear in conditions used by carriers and are normally at least as wide especially when adopted by carriers providing multimodal transport.⁵⁴³ As with the clauses considered in the previous section the liberties granted by clauses such as these would likely be subject to any specific instructions given by the customer. The 1984 edition of the IFF Conditions produced a different inference, since the liberty given to the forwarder as an agent was made subject to express instructions, whereas the liberty as a principal was not, thus leading to the inference that the liberty as a principal could apply to express instructions as to route etc so as to enable the forwarder to depart from them. Such an inference is much less likely under the present clauses since the difference which existed under the 1984 conditions has been removed.

2C.7.2 Liberty to deviate

At least in respect of the route the clause amounts to a liberty to deviate. By analogy 2.136 with deviation cases in carriage by sea,544 the liberty in clause 4(B) must be read in light of the actually agreed carriage.⁵⁴⁵ Thus, for example, where a forwarder agrees to carry, the described carriage and the liberty must be read together and reconciled and the liberty must not be used to frustrate the described carriage but must be subordinate to it.546 It is legitimate to bear in mind that the printed words, whilst they cannot be ignored, are designed to apply to a variety of contracts and are not specially agreed upon in relation to a particular carriage.547 Furthermore, a court,

Model Rules, which makes similar provision, appears among the general provisions. It applies unless otherwise agreed but enables the forwarder to act without notice and in addition to liberties in respect of means, route and procedure, specifically permits carriage on deck. P&O Nedlloyd STC 1997 made such provision in cl. 5(A) which was linked to where P&O Nedlloyd acted as a principal.

^542. Clause 5 of BIFA 2000 included the words ''to third parties including the Company's own parent, subsidiary, or associated Companies''. TT CLUB 600, cl. 18 provides liberty for the Logistics Provider to instruct a division of the Logistics Provider or a Logistics Provider's Group Company to provide carriage, storage and/or handling of products as well as a third party service provider.

^543. See e.g. cl. 19 of the Maersk Line Multimodal Transport BL. Cf FBL, cl. 11. See further 3.47.

^544. See further Gaskell et al., para. 6C.

^545. Compare cl. 19(2) of the Maersk Line Multimodal Transport BL which widens the purposes behind exercise of the liberty to actions unconnected to the actual carriage but provides that such actions shall be deemed to be within the contractual carriage and shall not be a deviation.

^546. Per Viscount Sumner, Frenkel v. MacAndrews [1929] AC 545 at p. 562.

^547. See, per Lord Herschell, Glynn v. Margetson [1893] AC 351 at p. 354.

having considered the various documents issued by the forwarder and the surrounding circumstances, may consider that a specific route was agreed upon.548 A clause which referred specifically to a right to depart from an agreed route or method of carriage would be effective, however,549 provided that the purpose of the contract was not frustrated and subject to being overridden by a definite undertaking to perform in a particular way.

2.137 Generally clause 4(B) will grant some discretion to the forwarder and justify a departure from strict adherence, for example to a direct geographical route that might otherwise be implied.⁵⁵⁰ In light of the usages and exigencies of the trade and having regard to the existence of the liberty, the court can determine whether the action of the carrier is within the range permitted by the contract. It is a question of degree, and a departure by the forwarder from what could be expected in light of the route etc agreed, for purposes unconnected with the contract could not be expected to be saved by the clause.551
2.138 Unlike the 1984 Conditions there is no clause which deals specifically with the Hague Rules552 so that the conditions only are applicable, in the absence of mandatory application of the Rules, unless the forwarder has also issued a bill of lading which is in fact effective to override the conditions.553 Where the Rules apply as a matter of statutory force, Article IV, rule 4 provides an additional liberty to that provided by the contract.⁵⁵⁴ The known course of dealing of the forwarder may well, in practice, be such that it will be difficult to imply an undertaking to carry by any particular route or to deliver, for example, consolidated goods in any particular order.⁵⁵⁵ Where a particular route or method of performance would otherwise be implied, the clause might be caught by section 3(2)(b)(i) of UCTA provided that this is seen as rendering a performance substantially different from what was reasonably expected rather than negating a duty that would otherwise be implied.556

2C.7.3 Choice of safest method

2.139 In the absence of the express discretion granted by a clause such as clause 4(B) a forwarder in the position of a carrier may be required, where a choice of methods

^548. Charles Weis & Co Ltd v. Northern Traffic Ltd (1919) 1 Ll L Rep 241.

^549. As in Connolly Shaw v. Nordenfjeldske S.S. (1934) 50 TLR 418.

^550. See Viscount Sumner, Frenkel v. MacAndrews, fn. 546, above, at p. 563, cf Beatson v. Haworth (1793) 6 TR 531.

^551. Compare Thiess Bros v. Australian S.S. [1955] 1 Lloyd's Rep 459. Compare further the liberty to make a reasonable deviation under the Hague Rules, Art. IV, r. 4, which rests on a wider basis, Stag Line v. Foscolo Mango [1932] AC 328, per Lord Atkin at p. 343. Cf further the Hamburg Rules, Art. 5(6) and the Rotterdam Rules, Art. 17(3)(l)(m)(n)(o).

^552. Compare TT CLUB 400, cl. 44.

^553. See above, 2.16.

^554. Renton v. Palmyra Trading Corp of Panama, per Jenkins LJ in the Court of Appeal [1956] 1 QB 462, [1955] 2 Lloyd's Rep 722 at p. 505 and p. 744. The point was left open in the House of Lords, see per Lord Morton [1957] AC 149, [1956] 2 Lloyd's Rep 379 at p. 171 and p. 391; see also Scrutton, p. 405.

^555. Mayfair Photographic Supplies Ltd v. Baxter Hoare [1972] 1 Lloyd's Rep 410.

^556. See above. Compare Anglo-Continental Holidays v. Typaldos Lines [1967] 2 Lloyd's Rep 61, and see Treitel, pp. 267–8 and 273–4.

of carriage exists, to choose the safest method unless choice of the safer method would be unreasonable.557 Nevertheless the usual course of business known to the customer will be relevant.⁵⁵⁸ The existence of the discretion may mean that it will be easier for a carrier to show that he has authority to choose one means rather than another, possibly even where the method chosen is the one less usual. The real importance of the liberty may well lie in its relation to other clauses excluding liability. It is arguable that the discretion granted by the clause, whilst it puts some risk onto the customer, does not necessarily put all risks of negligence even in the choice of means, etc, onto the customer. This was clearer under the equivalent clause as expressed in BIFA 2000 which gave a reasonable liberty. As so expressed it was neither necessarily inconsistent with an implied duty of care, nor with the duty expressed in clause 23. It would not have justified a forwarder in choosing a clearly unsafe means or unsatisfactory route etc. Whether the ''full liberty'' given by the current clause would do so may be similarly doubtful if read consistently with clause 23. However, any negligence as to choice could be said to fall within the parameters of the contract and not outside it, which may have an effect on the construction of other restrictive clauses so that it may make it easier for such clauses to cover such negligence.

2C.7.4 Subcontracting

Under BIFA 1989 Conditions, no express right was given to subcontract and the 2.140 only relevant possibility was contained in clause 8.559 A narrow construction of the words might confine them to means, etc, used when the forwarder is personally performing the relevant service. This could be so especially in circumstances where, particularly in the light of the nature of the goods, it should be clear to the forwarder contracting as a principal that the customer would not have agreed to the service being subcontracted.⁵⁶⁰ On the whole, however, the nature of forwarding operations will be such that performance would not normally be construed as personal to the forwarder so that there would be an implied right to subcontract commonly supported by a custom of the trade.⁵⁶¹ Liberty to subcontract would, however, appear to have been implied by clause 6 of the 1989 edition derived from the undertaking to perform personally or procure performance.⁵⁶² Since an extensive authority to subcontract on any terms was not given by the 1989 Conditions, a

^557. Lister v. Lancashire and Yorkshire Railway [1903] 1 KB 878 at p. 880.

^558. Mayfair Photographic Supplies, fn. 555, above.

^559. Clause 7 of BIFA 2000 and cl. 4(B) of BIFA 2005A.

^560. As in the carriage by road case of Garnham, Harris & Elton v. Alfred W. Ellis Transport [1967] 1 WLR 940, [1967] 2 Lloyd's Rep 22.

^561. Homecraft Weavers Ltd v. George Ewer & Co Ltd (1945) 78 Ll L Rep 496, John Carter v. Hanson Haulage [1965] 2 QB 495, [1965] 1 Lloyd's Rep 49.

^562. See Spectra International plc v. Hayesoak Ltd [1997] 1 Lloyd's Rep 153 (CLCC Bus. List). Compare TT CLUB 400, cl. 42 and DAMCO STC, cl. 14. Some forwarding conditions are less clear but appear to contemplate, at least, the possibility of subcontracting even if not specifically authorised e.g. Geologistics GTC, cl. 28 and FIATA Model Rules, cl. 7.3. More explicit clauses authorising subcontracting are commonly to be found in carriers' conditions, see e.g. Maersk Line Terms and Conditions, cl. 4 (cf, however, FBL which makes the reference to procuring performance in cl. 2.1(a)).

similar duty to that suggested in 2.133 would seem appropriate under those conditions. Clause 5 of the current edition now gives an express liberty to subcontract and indicates that this may be on any terms whatsoever. The extent of the implied authority of the forwarder would be of particular relevance to a subcontractor seeking to rely on a bailment on terms.563

2C.8 LIBERTY TO DELEGATE

2.141 BIFA 1989, clause 9

The Company shall be entitled to perform any of its obligations herein by itself or by its parent, subsidiary, or associated Companies.⁵⁶⁴ In the absence of agreement to the contrary any Contract to which these Conditions apply is made by the Company on its own behalf and also as Agent for and on behalf of any such parent, subsidiary or associated Company, and any such Company shall be entitled to the benefit of these Conditions.

2C.8.1 Delegation of agency

2.142 An agent may not delegate his authority, or appoint a sub-agent to do any act on behalf of his principal, except with the express or implied authority of the principal.⁵⁶⁵ This does not apply to purely ministerial acts but since forwarding operations are likely to involve confidence566 and discretion this exception will apply rarely. The right to delegate may be implied, however, under any usual or customary

^563. See further Singer v. Tees and Hartlepool Port Authority [1988] 2 Lloyd's Rep 164 and The Pioneer Container [1994] 2 All ER 250 at p. 259 and Spectra, above. See also the comments in the next paragraph.

^564. The common law restrictions on the freedom of an agent to delegate authority are discussed at 2C.8.1. This clause gives express authority to delegate to the limited number of persons stated. Previous editions of the conditions contained a wider authority to delegate to ''any other person, firm or Company'', cf Geologistics GTC, cl. 21, and TT CLUB 400, cl. 18(e), HAFFA, cl. 5.2. It would seem unlikely that the general authority given in cl. 7(D) of the 1989 edition could provide a wide authority to delegate in view of the personal confidence generally reposed in the agent. Besides, it could not cover further acts taken by the sub-agent since the clause depends on those acts being in the interests of the customer ''in the opinion of the Company''. Cf cl. 40(a) of TT CLUB 400, which likewise may be interpreted as authorising such contracts and acts to enable the forwarder to complete the mission entrusted to him and not to transfer that mission to another agent. Clause 18(e) of TT CLUB 400, however, grants a right to the forwarder to contract for the performance of its own obligations. If such clauses can be viewed as granting a right to render a performance substantially different from that expected, they may be caught by s. 3(2)(b)(i) of UCTA, but not if they merely prevent an implied duty (i.e. not to delegate) from arising, see 2.130 above. Clause 9 has been removed from the current conditions. It may have been thought to be unnecessary in the light of new cll. 5 and 6(A) in the current conditions (see above 2.124 and 2.134). However cl. 5, which expressly refers to parent, subsidiary or associated companies, only applies where the forwarder acts as a principal. Clause 6(A) relates to contracts made by a forwarder on the customer's behalf with the intention of creating privity of contract between the customer and the third party. It would not appear to authorise the delegation of power to a sub-agent which does not necessarily carry with it the creation of privity between the customer and the sub-agent.

^565. Bowstead and Reynolds, Art. 34 citing De Bussche v. Alt (1878) 8 Ch.D. 286 at pp. 310–311.

^566. Such as that arising from the supply of information to the forwarder and the careful use of that information when dealing with third parties, cf in relation to estate agents: John McCann & Co v. Pow [1974] 1 WLR 1643.

authority, or from the nature of the business.567 Hill⁵⁶⁸ suggests that: ''Such authority must . . . be implicit in all forwarding operations, or otherwise the smooth running of the trade would be impossible . . . ''. It is submitted, however, that whilst this must be true for those forwarding operations where the forwarder needs to employ the services of a correspondent agent at a distance to enable goods to be processed at destination, this is not necessarily true at those points of a transit where the forwarder is present and can be expected to exercise a personal skill and confidence in transmitting, for example, information concerning the goods. In those circumstances the permission of the customer should be obtained if this is possible.

The use of express terms to provide a liberty to delegate may produce the 2.143 difficulty that by granting an express right it might not be possible to imply any further right. Such further rights might be regarded as inconsistent with the rights granted expressly. This may be the case with a clause such as clause 9 of BIFA 1989 unless it is arguable that the clause is not inconsistent with any further right than that granted by it. Furthermore, the clause refers to ''any of its obligations'' which is wider than obligations undertaken as an agent. It could therefore justify the subcontracting of performance of services to one of the companies indicated. Any further right to subcontract would depend on further express grant or possible implication provided such implication is not considered inconsistent with the limited liberty granted by this clause.

2C.8.2 Privity of contract with sub-agent

Delegation of agency does not normally create privity of contract between the 2.144 principal and the sub-agent.⁵⁶⁹ To establish that the principal authorised the agent to establish privity of contract between the principal and the sub-agent requires precise proof, as Wright J indicated in Calico Printers Association v. Barclays Bank and Anglo-Palestine Co.⁵⁷⁰ Alternatively, it may be shown that the intention was for the forwarder to appoint a substitute for himself.

A clause such as Clause 9 of BIFA 1989 does not seem to have this intention as 2.145 it anticipates sub-agency.571 Rather, this clause is a form of ''Himalaya clause'' which seeks, through the agency of the forwarder, to establish such privity of contract as to enable the sub-agent to rely on the conditions.572 The basic lack of privity of contract might suggest to the customer an absence of liability but this type

^567. De Bussche v. Alt, fn. 520, above, esp. p. 311, per Thesiger LJ. This may be a further reason why cl. 9 of BIFA 1989 may have been thought to be unnecessary and deleted from BIFA 2000.

^568. At p. 173.

^569. Nor does it remove the contractual non-delegable duty of the original agent, Henderson v. Merrett Syndicates Ltd [1994] 2 Lloyd's Rep 468, [1995] 3 All ER 506; cf, however, the position in tort, Aiken v. Stewart Wrightson Members Agency Ltd [1995] 2 Lloyd's Rep 618.

^{570. (1931) 145} LT 51 at p. 55.

^571. Cf Margolis v. Newson Bros Ltd (1941) 71 Ll L Rep 47.

^572. Cf Geologistics GTC, cl. 21 which seeks to go further and extract a promise from the customer not to seek to impose on the sub-agent a liability greater than or additional to that accepted by the company under the conditions. Compare further cll. 6 and 21 of the IFF 1981 Conditions which sought both to bring sub-agents into the contract but also extracted a promise from the customer not to sue them (as to enforcement of such a promise see Nippon Yusen Kaisha v. International Import and Export Co Ltd (The Elbe Maru) [1978] 1 Lloyd's Rep 206; cf Neptune Orient Lines Ltd v. J.V.C. (UK) Ltd [1983] 2

of clause can be useful to protect the sub-agent from non-contractual liability such as that confirmed in Henderson v. Merrett Syndicates Ltd (No. 1). ⁵⁷³ Ironically, the insertion of such a clause may assist in defeating an argument that the chain of contracts is such as to exclude such liability.

2.146 Prior to the Contracts (Rights of Third Parties) Act 1999 this type of clause had to satisfy certain conditions necessary for their validity.574 Since the clause is limited to parent, subsidiary or associated companies, it may be easy to establish the authority, which under common law was necessary to sustain the clause. Where such clauses include a wider range of potential sub-agents such authority may well be harder to find.⁵⁷⁵ The existence of this Himalaya clause would not necessarily prevent the persons identified in it from relying on their own terms under a bailment on terms.⁵⁷⁶

2C.9 RIGHTS OF LIEN

2.147 BIFA 2005A, clause 8

8. (A) Subject to Sub-Clause (B) below, the Company:
- (i) has a general lien⁵⁷⁷ on all Goods and documents relating to Goods in its possession, custody or control578 for all sums due579 at any time to the Company580 from the Customer and/or Owner on any account whatsoever, whether relating to Goods belonging to, or services provided by or on behalf of the Company to the Customer or Owner. Storage charges shall continue to accrue on any Goods detained under lien;581

Lloyd's Rep 438; see also Palmer, p. 1928, 38–153, Scrutton, Art. 26 and below 2C.19). Geologistics GTC, cl. 18, resolves the contradiction that such a combination suggests.

^{573. [1995] 2} AC 145, [1994] 2 Lloyd's Rep 468, [1995] 3 All ER 506.

^574. See per Lord Reid in Scruttons Ltd v. Midland Silicones Ltd [1962] AC 445 at p. 474, and New Zealand Shipping Co Ltd v. A.M. Satterthwaite & Co Ltd [1975] AC 154, [1974] 1 Lloyd's Rep 534; see also Glass and Cashmore, p. 41, Palmer, p. 1872–3, 38–092–093, Scrutton, Art. 26. See further, generally, Merkin ed. Privity of Contract (2000).

^575. Southern Water Authority v. Carey [1985] 2 All ER 1077; cf Port Jackson Stevedoring Pty Ltd v. Salmond and Spraggon (Aust.) Pty Ltd (The New York Star) [1981] 1 WLR 138.

^576. The Pioneer Container [1994] 2 All ER 250 at p. 264; see, however, The Mahkutai [1996] AC 650, [1996] 2 Lloyd's Rep 1, but contrast The Rigoletto [2000] 2 Lloyd's Rep 532.

^577. The clause purports to grant a general and active lien to the forwarder, cf Geologistics GTC, cl. 11, TT CLUB 400, cll. 22 and 23, DAMCO STC, cl. 41. General liens are discussed below at 2C.9.2 and active liens at 2. Particular liens are discussed at 2C.9.1. The BIFA clause does not contract for a particular lien in comparison with some previous editions of the IFF Conditions and with TT CLUB 400, cl. 23. Clause 17.1 of the DHL Express (UK) Ltd STC provides simply for a particular and active lien.

^578. See 2C.9.3, below.

^579. See 2C.9.4 below.

^580. Added since BIFA 2000.

^581. The words ''on any account'' until the end of the sub-clause added since BIFA 2000.

(ii) shall be entitled, on at least⁵⁸² 28 days notice in writing⁵⁸³ to the Customer,⁵⁸⁴ to sell⁵⁸⁵ or dispose or deal⁵⁸⁶ with such Goods or documents as agent for, and at the expense of, the Customer and apply the proceeds in or towards the payment of such sums;
(iii) shall, upon accounting to the Customer for any balance remaining after payment of any sum due to the Company, and for the cost of sale and/or disposal and /or dealing, be discharged of any liability whatsoever in respect of the Goods or documents.587
(B) When the Goods are liable to perish or deteriorate, the Company's right to sell or dispose of or deal with the Goods shall arise immediately upon any sum becoming due to the Company, subject only to the Company taking reasonable steps to bring to the Customer's attention its intention to sell or dispose of the goods before doing so.588

2C.9.1 Rights of particular lien

At common law a forwarder can normally expect to have a particular lien on his 2.148 principal's goods, when he acts as an agent, for lawful claims for charges, expenditure etc, incurred in carrying out his duties.⁵⁸⁹ When the forwarder is acting in other capacities he will have such particular lien at common law as is applicable to that capacity. Thus where the forwarder acts as a common carrier he is

The equivalent clause in BIFA 2000 referred simply to 28 days' notice.

584. For the definition of ''customer'' see cl. 1, see above 2.19.
585. An active lien, see 2C.9.5 below.
586. References to dealing with the goods have been added since BIFA 2000.

The power of sale granted by this clause is considered further below at 2C.9.5. A further power of sale is granted by cl. 10(B) discussed below at 2C.11. A power of sale may be implicit also in the power given in cl. 18 to deal with dangerous goods, see below 2C.18.
Bowstead and Reynolds, Art. 65, and see Societa Anonima Angelo Castelletti v. Transmaritime Ltd [1953] 2 Lloyd's Rep 440 at p. 449. Cf Schenkers Ltd v. Betancor & Co Ltd, World's Carrier, 15 April 1939, p. 318, Mayor's Court, cited in Hill, p. 222, note 44.

^583. Presumably sums must be ''due'' before notice can be given. The phrase ''notice in writing'' would appear to imply actual communication with the customer before it can take effect in comparison with sub-clause (B) of the clause which requires only reasonable efforts to trace the parties there indicated (see also Holwell Securities Ltd v. Hughes [1974] 1 WLR 155, cf New Hart Builders Ltd v. Brindley [1975] Ch 342).

^587. The exclusion of liability will need to be reasonable when UCTA is applicable. A prior question will be that of the proper scope of the exclusion. The intention may be simply to cover the potential liability for conversion involved in the act of selling the goods. It may be intended to prevent questions arising from the conduct of the sale, including any question of negligence surrounding the conduct of the sale. It may be intended to have a much wider scope and to cover any liability arising in relation to the goods or documents the object of the lien, such as a claim for damage done to the goods or a failure to carry out instructions in relation to them whether arising before or after the exercise of the lien. Such width seems unlikely to be accepted by the courts. The clause may, however, be wide enough to cover a claim for loss or damage which arises out of the exercise of the lien, such as loss of a sale (see also cl. 26(C), below), or damage done to the goods whilst the lien is being exercised which reduces the value of the goods on a sale. In W. Young & Son (Wholesale Fish Merchants) v. B.T.C. [1955] 2 QB 177, a similar exclusion was attached to a right of sale in circumstances where a carrier was unable to deliver the goods and was held to exclude liability for the event which produced the inability to deliver, even though this was due to the actions of the carrier's servants. The exclusion here does not relate to circumstances preventing delivery but the exercise of a right of lien. Consequently, the intention may be considered as being to cover the risks to the goods, or their value, involved in maintaining the lien and conducting the sale. Whether it will cover any negligence of the forwarder in these activities will depend on whether the clause is seen merely as a warning as to risks on the customer as in Hollier v. Rambler Motors (A.M.C.) Ltd [1972] 2 QB 71, or as a clear exclusion which covers the only obvious head of claim as in Alderslade v. Hendon Laundry [1945] KB 189.

automatically entitled to a particular lien.⁵⁹⁰ It is unclear, and opinion differs, as to whether a private carrier automatically has a particular lien against his customer.⁵⁹¹ A similar doubt exists in respect of a warehousekeeper's lien.⁵⁹² Where a forwarder is owed the premium for insurance under which a claim has arisen, he has a particular lien on the certificate of insurance, and a right of set-off against the proceeds of the claim.593 Since, in general, an agent is entitled to a particular lien,⁵⁹⁴ there may be little difficulty in establishing such a lien at common law without having to contract for it expressly, although it may be better to contract for it just in case. Any lack of authority to exercise a lien can result in liability for wrongful interference with goods.595

2.149 Where the forwarder purports to exercise a particular lien against goods or documents belonging to a person other than his principal, this will be possible where either the forwarder is obliged to accept the goods at common law, for example where he acts as a common carrier, or where implied or ostensible authority exists on the part of his principal to contract for the lien.⁵⁹⁶ Such implied authority is generally easy to establish in the case of a particular lien provided that the forwarder's principal was in lawful possession of the goods at the time possession was transferred to the forwarder and that the transfer of possession is not inconsistent with the purposes for which the customer was in possession of the goods as regards the owner of them.⁵⁹⁷ In Cassils & Sassoon v. Holden Wood Bleaching, ⁵⁹⁸ it was pointed out that a particular lien is not available in favour of a

^590. Skinner v. Upshaw (1702) 2 Ld Raym 752 (see further Palmer, pp. 1497–8, 27–038). Some previous editions of the IFF Conditions stated that forwarders do not act as common carriers, and such provision is still often made in some conditions in use, see e.g. Geologistics GTC, cl. 26 and see further 2C.5.3, above, as to the likelihood of forwarders being found to be common carriers.

^591. Compare Glass and Cashmore, p. 62 and Palmer, p. 955, 16–051 with Hill, p. 215 and Kahn-Freund, pp. 405–406. The first two texts note the difficulty that bailees for reward do not have a common law lien on the goods unless they improve them. Hill notes the uncertainty but cites also Kahn-Freund who appears to consider that a private carrier has a particular lien in respect of his charges, but not as against the true owner of the goods unless he is also the consignor. Hill (at p. 216) notes the logical flaw in the apparent differentiation between the common carrier and the private carrier based on the obligation of the former to carry the goods. Hill points out that the obligation arises only in respect of a consignor willing to pay the charges in advance. If the forwarder chooses to give credit then any carriage is really a matter of choice rather than obligation.

^592. Compare Glass and Cashmore, at para. 1.63 with Hill, at p. 216. See also Palmer, p. 844, 14–098.

^593. Mildred v. Maspons (1883) 8 App Cas 874, Hill, p. 286, n. 32.

^594. Bowstead and Reynolds, Art. 65.

^595. See e.g. T. Comedy (UK) Ltd v. Easy Managed Transport Ltd [2007] EWHC 611 (Comm), [2007] 2 Lloyd's Rep 397.

^596. Cassils & Sassoon v. Holden Wood Bleaching (1915) 84 LJKB 834 at p. 840, per Buckley L.J, cf, Lukoil-Kaliningradmorneft plc v. Tata Ltd and Global Marine Transportation Inc [1999] 2 Lloyd's Rep 129. Where the lien has been contracted for by the owner of the goods through a term in a bill of lading it seems that it will survive any later change of ownership even if transfer of the bill of lading does not effect a transfer of the contract of carriage, see Feoso Maritime Co Ltd v. Faith Maritime Co Ltd (The Daphne L), Singapore Court of Appeal 25 August 2003, summarised in www.onlinedmc.co.uk. For the court the contractual lien was dependent on continued possession of the cargo (see below 2C.9.3) and operated as a remedy in rem.

^597. See the cases cited in Cassils, above, fn. 546, and also Tappenden v. Artus [1964] 2 QB 185, Bowmaker v. Wycombe Motors [1946] KB 505, and Electric Supply Stores v. Gaywood (1909) 100 LT 855. On the ostensible authority of forwarders themselves to create liens see Gallimore v. Moore (1867) 6 SCR (NSW) 388 and Leaf v. Canadian Shipping (1878) 1 WN 220, cited in Hill, p. 224.

^598. Fn. 596, above, at p. 842, per Buckley LJ.

subcontractor where a principal contractor has contracted to do a job for a certain sum and has subcontracted part of that job to a subcontractor for a different sum. This was on the principle that there was no obligation between the customer and the contractor for the part of the job subcontracted to be done for a particular sum, so that passing on that obligation to the subcontractor was inconsistent with the agreement made between the customer and the contractor. This could affect a forwarder in the position of a sub-agent or subcontractor or where the intention is to grant a right of lien to a subcontractor of the forwarder.

Where the forwarder is unable to exercise a lien because of the lack of authority 2.150 of his principal to bind the owner, he may seek to rely on an indemnity or warranty contained in the contract. No express indemnity is provided in BIFA 2005A in clause 8. Reliance would need to be placed on the warranty in clause 3599 rather than the indemnities provided in clause 20.600 A specific clause might state that the customer warrants that he has the authority to grant the lien against the owner.⁶⁰¹

The existence of the lien must be consistent with the obligations accepted by the 2.151 forwarder.602 It is not inconsistent for a forwarder or carrier to exercise a lien in respect of dangerous goods since any person exercising a lien must exercise proper care for the safety of the goods the subject of the lien.603

Unless the forwarder has an independent right to exercise a lien 2.152 ⁶⁰⁴ he will only be able to exercise such rights as his customer has against a third party owner of the goods,605 whether the customer is, for example, a consignor or sending forwarder for whom he is acting as sub-agent.606 Where the forwarder fails to exercise such rights as instructed he will be liable for such failure but damages will be based on the value of the lien, which may be of little value if the goods are perishable or if the debtor is good for the money.607 Where the third party is not the owner of the goods,⁶⁰⁸ or is the owner but does not have the immediate right to possession of the goods⁶⁰⁹ the forwarder may contract on the basis that he will only part with possession in return for a promise that the third party pays his charges.610

^599. See 2.33.

^600. Although these might come into play once the forwarder has accounted to the customer after exercising a right of sale and is then sued by the owner.

^601. See e.g. cl. 17.3 of DHL Express (UK) STC.

^602. See e.g. in the case of a carrier, Hirst v. Page (1891) 7 TLR 537 and in the case of a garage, Hatton v. Car Maintenance Co Ltd [1915] 1 Ch 621.

^603. Kala Ltd v. International Freight Services (UK) Ltd QBD, 7 June 1988, unreported.

^604. E.g. as a common carrier or contracted for by his customer with the authority of the owner.

^605. Where the forwarder is acting for a foreign principal the exercise of any rights of lien may well depend on what is available under the proper law of the contract, see further Hill, p. 223.

^606. Brunton v. Electrical Engineering Co [1892] 1 Ch. 434. Wider rights may be available to a subagent against the original principal especially where the principal is undisclosed, see Bowstead, Art. 71(2), and Fisher v. Smith (1878) 4 App Cas 1.

^607. See Societa Anonima Angelo Castelletti, fn. 589, above, at pp. 449–450.

^608. E.g. a consignee to whom property has not passed.

^609. As where the forwarder is exercising a right of lien on behalf of his principal.

^610. Anglo-Overseas Transport Co Ltd v. David Zanellotti Ltd [1952] 1 Lloyd's Rep 232 at p. 235, per Slade J. See also Schenkers Ltd, fn. 589 above.

2.153 A forwarder may not follow the instructions of his principal if this would amount to conversion of a third party's goods.611 The purported exercise of a lien when there is no right to do so, so as to interfere with the transit to the named consignee, will amount to a distinct breach of contract with the forwarder's principal.612 As an agent a forwarder might find that the exercise of a right of lien amounts to a breach of his duty of fidelity especially in circumstances where it is clear that the agent has put his own interests before that of his principal as in The Borag,⁶¹³ where it was said that ''common sense suggests that where the agency is of a continuing nature, it will not usually survive the exercise by the agent of rights inconsistent with those of the principal over goods which are the very subject-matter of the agency; and this would appear to indicate that the principal's conduct must at least be of a repudiatory nature, even if not formally treated by the agent as such, before the agent can exercise his remedy of self-help''.614
2.154 Whilst in The Wiltshire Iron Co v. G.W. Ry⁶¹⁵ a carrier was unable to exercise a lien until the goods had reached their destination, this must be seen in the context of the case in that a lien does not, without more, justify a refusal to carry, and any right given by an express clause must be given a businesslike construction. Consequently, in Kala Ltd v. International Freight Services (UK) Ltd, ⁶¹⁶ a forwarder who was not, in the circumstances, a carrier was held to be justified in instructing the actual carrier to detain goods at an intermediate depot since this was a reasonable exercise of his rights. To have exercised that right at a later stage would have been futile and might have exposed the goods to loss or damage.

2C.9.2 Rights of general lien

2.155 A general lien, exercisable against the principal's goods, may be acquired by contract, or by implication of law or by trade or local custom.617 Such a custom is extremely difficult to prove and the existence of an express clause is, in fact, a serious obstacle to someone seeking to rely upon custom.⁶¹⁸ This is all the more so if it is sought to extend the custom beyond those of his principal's goods. A packer has a general lien, by implication of law, on his principal's goods.619 In Langley, Beldon & Gaunt Ltd v. Morley,⁶²⁰ it was said that this ''appears to have been based, primarily, on a custom that prevailed in the middle of the 18th century, when packers were, to some extent, factors, and advanced money on goods warehoused

^611. Societa Anonima Angelo Castelletti, (fn.589, above) at p. 447.

^612. Langley, Beldon & Gaunt Ltd v. Morley [1965] 1 Lloyd's Rep 297 at p. 307. In this case since the property was in the consignee there was no remaining interest in the plaintiff seller to support a claim for conversion.

^{613. [1980] 1} Lloyd's Rep 111, at first instance, reversed on other grounds, [1981] 1 WLR 274, [1981] 1 Lloyd's Rep 483.

^614. Mustill J at p. 122.

^{615. (1871)} LR 6 QB 776.

^616. Fn. 603.

^617. Hill, p. 217.

^618. Langley, Beldon & Gaunt, fn. 612, above, at p. 306.

^619. Re Witt (1876) 2 Ch D 489.

^620. Above fn. 612.

with them for inter alia packing''.621 In Ahlers v. Broome, ⁶²² a shipping agent who made advances against proceeds of sale could not rely on the general lien of a factor. This uncertain application of custom creates a particular difficulty for forwarders whose activities may be classified in different ways.623 Since the modern forwarder is likely to operate under a general balance of account it is best for him to contract for a general lien.

The general lien granted by clause 8 of BIFA 2005A attaches in respect of sums 2.156 due from the Customer624 and/or Owner. The single ''or'' used in the equivalent clause in BIFA 2000 could be construed as conjunctive so that the lien could attach to each, not only for money owed by them, but also for money owed by the other625 as indicated in Chellaram & Sons (London) Ltd v. Butlers Warehousing & Distribution Ltd. ⁶²⁶ This compares with United States Steel Products Co v. G.W. Ry. ⁶²⁷ Here the word ''owner'' was construed as meaning the person entitled to demand delivery, and not whoever might be the legal owner at any particular time.628 Thus a seller's right of stoppage of transit was not defeated by a general lien for money owed by the owner buyer. Lord Atkinson629 indicated that clear words are required to indicate an agreement on the part of a seller to postpone his right of stoppage in favour of the general lien. See also Black & Broom v. J. Coppo & Co, ⁶³⁰ where the lien attached to money due from the ''owners or consignees'', and the seller of goods was able to recover them from the forwarder since, despite the fact that money was owed by the buyer to the order of whom the bill of lading had been made, he had rejected the goods and so did not become owner of them. It might, perhaps, have been assumed that the buyer was not to be considered as the consignee. The reference to and/or in the current conditions would not appear to effect any significant change.

Where the forwarder seeks to exercise the general lien against an owner of goods 2.157 with whom he is not in privity of contract he must show an express or implied authority given by the owner to the person who has contracted with him to create the lien.631 To be implied it must have been contemplated that the goods would be entrusted to the forwarder on such terms.632 It would naturally be easier to imply it where the lien is exercised in respect of money owed by the demander of the goods than in respect of money owed by another.633 The criteria laid down in Chellaram⁶³⁴ would need to be satisfied whether they are applicable directly, as where the forwarder is a subcontractor, or by analogy when, for example, goods are being

621. Mocatta J, at p. 305.

^{622. (1938) 62} Ll L Rep 163.

^623. Hill, p. 217.

^624. See cl. 1 of BIFA 2005A, 2.19, for definition of customer.

^625. Subject to privity, see below.

^{626. [1978] 2} Lloyd's Rep 412, per Megaw LJ, at p. 415.

^{627. [1916] 1} AC 189.

^628. See per Lord Parker, at p. 207.

^629. At p. 204.

^{630. (1922) 13} Ll L Rep 279.

^631. Once created by the owner of the goods it may, however, survive a change of ownership, see Feoso, above fn. 596.

^632. See per Phillimore LJ in Cassils, above, fn. 596, at p. 843 in respect of a subcontracting bleacher seeking to exercise a lien against the owner for the debts of the head contractor printer.

^633. This underlies the difficulty faced by the courts in Cassils, fn. 596 and Chellaram, fn. 626.

^634. Above, fn. 626, especially at p. 417.

forwarded to a buyer with whom no contract with the forwarder has been established. The criteria which were laid down in respect of a warehousekeeper subbailee for the debts of the head-contractor carrier were that the demander knew or should have realised that the goods might come into the hands of the sub-bailee (i.e. that he would do the work), and knew or should have realised that the sub-bailee would contract only on the basis of the general lien claimed. In this case the Court of Appeal held that the judge's finding that the plaintiffs knew that the work (i.e. packing of the goods into containers) would be carried out by the defendants could not be sustained. Further, it was not sufficient for the plaintiffs to have realised that it might be the case that such work would be carried out by the defendants unless it could be shown that they knew that the defendants would insist on a term such as this and the evidence did not show this. The case was distinguished, however, in Jarl Tr¨a AB v. Convoys Ltd. ⁶³⁵ Parcels of timber were entrusted to a sea carrier whose bills of lading incorporated standard conditions which expressly provided that the carrier was entitled to subcontract on any terms the (inter alia) ''handling... undertaken by the Carrier''. This was sufficient to enable a wharfinger at the discharge port to maintain a general lien (against the claimants) contained in its contract with the sea carrier for charges owed to it by that carrier. The judge saw this as a case of bailment on terms and applied The Pioneer Container. ⁶³⁶ As in that case the express permission to subcontract was ''on any terms'' and the Privy Council expressed the view that in such a case only terms which are so unusual or unreasonable that they could not reasonably be understood to fall within such consent are likely to be held to be excluded. Given that it was more common than not for those whose business involves handling and storage of goods to contract for a lien (sometimes particular and sometimes general) could not be regarded as unusual. Furthermore, although the consequences of applying a general lien were considered to be ''startling'' in Chellaram, Moore-Bick J did not consider that the effects were likely to be such that no shipper could be taken to have consented to them. If, as permitted by the clause, the sea carrier did subcontract, goods belonging to several different shippers would be likely to come into the hands of the same subcontractor and, given that many such subcontractors contract for a general lien, this risk must be accepted as arising in the ordinary course of business. It may be that this decision does not give sufficient weight to the distinctive line of cases devoted to liens rather than wider issues of bailment on terms.637 It certainly suggests a strong distinction between the type of case where there is an express term permitting subcontracting on any terms albeit that, as in this case, it is incorporated by reference and on the basis of a course of dealing (and leading to the further incorporation of a term with potentially onerous results) and where there is no such express term.

2.158 It should be noted further that an attempt in this case (in the alternative) to rely on the sea carrier's lien clause via the Himalaya clause in the bill of lading⁶³⁸ failed

^{635. [2003] 2} Lloyd's Rep 459.

^{636. [1994] 2} AC 324.

^637. See also T Comedy (UK) Ltd v. Easy Managed Transport Ltd [2007] EWHC 611 (Comm), [2007] 2 Lloyd's Rep 397.

^638. For Himalaya clauses see 2.245 and 3B.6.

since the judge did not regard the right of lien as a ''defence''639 and was not one of the conditions from which the parties intended servants or agents of the carrier to benefit directly. Finally the possibility can be borne in mind that privity of contract might in any case be directly established with both a seller and a buyer of goods in respect of different aspects of a transit so that a buyer might find himself bound by a general lien provided for in the conditions even if privity has not been established through the agency of the seller.640

2C.9.3 The need for possession

At common law the agent must possess the goods: ''there can be no lien upon any 2.159 property unless it is in the possession of the party who claims the lien''.⁶⁴¹ Where a forwarder is named as sender on a consignment note made with a shipowner but is acting merely as an agent for a seller principal in making the contract with the shipowner and the goods are in the possession of the shipowner on behalf of the buyer consignee who is the owner of the goods, the forwarder does not have possession. Rather, the shipowner has possession on behalf of the consignee.642 In Kala Ltd v. International Freight Services (UK) Ltd, ⁶⁴³ however, a forwarder who ''acted as freight forwarders not mere forwarding agents'', and who issued a ''through bill of lading'' to their customer, but were not ''carriers'' and were named as sender on a CMR consignment note and detained goods whilst in the hands of the CMR road carrier, were in possession of the goods. The customer had granted the forwarders the right to control the goods during transit and they retained that right (confirmed by CMR) as against the actual carrier. Kala involved a previous edition of the IFF Conditions which granted both a right of lien and a right of detention. The exercise of control over the goods was held, in that case, to be a valid exercise of the right of detention whether there was possession or not. The current BIFA Conditions do not contain a right of detention but only a right of lien. It seems unlikely that the words ''custody and control'' could add anything to the word ''possession'' so as to justify the exercise of a lien even in the absence of possession or constructive possession (for example, by possession of a document of title) since the claim is for the exercise of a ''lien'' which in its essential meaning, as seen above, depends upon possession, although ''custody and control'' can have a wider meaning.644 Such additional words might, therefore, be treated by a court as words of emphasis and a separate right of detention as in Kala, above, should be contracted for to cover other forms of control. The clause also gives a lien on documents so that whilst possession of them may not amount to constructive

^639. The Himalaya clause which applied the Standard Conditions whenever claims relating to the performance of the contract are made against servants or agents, was contained in a term headed ''Defences and Limits for the Carrier and Servants''. The first paragraph which then applied the defences and limits was said to provide the context for the Himalaya clause.

^640. See J.O. Lund Ltd v. Anglo Overseas Transport Co Ltd [1955] 1 Lloyd's Rep 142.

^641. Bowstead and Reynolds, Art. 65 citing Shaw v. Neale (1858) 6 HL Cas 581 at p. 601.

^642. Langley, Beldon & Gaunt v. Morley [1965] 1 Lloyd's Rep 297 at p. 306.

^643. QBD, 7 June 1988, unreported.

^644. E.g. in Langley, above, the agent had control as sender but not possession. A servant can have custody without possession: Mires v. Solebay (1677) 2 Mod 242, 86 ER 1050, Palmer, p. 458, 7–001.

possession of the goods (as in the case of a bill of lading) they might, in effect, prevent the customer from exercising control over the goods until the lien is released.

2.160 Some trading terms contain a provision that the lien shall survive the delivery of the goods.645 Since delivery could be expected to entail a loss of possession it is hard to see how the ''lien'' could survive this. The intention may be to seek to continue constructive possession post delivery. Whilst this is possible⁶⁴⁶ it may need to evince a clearer intention that constructive possession is being retained. Further, where the known circumstances of the delivery are clearly inconsistent with the retention of constructive possession (e.g. if it is known that the goods will shortly be consumed after delivery) it would seem unlikely that such a clause could be effective in this way.

2C.9.4 Lien only for sums due

2.161 Any lien is inconsistent with current credit terms as the debt must be due before the lien can be exercised.⁶⁴⁷ For a sum to be ''due'' presupposes that an ascertained or immediately ascertainable sum is presently payable and this does not include a mere claim for unliquidated damages (such as an unquantified claim for an indemnity) which are neither ascertained nor presently ascertainable.⁶⁴⁸ The charges and expenses of exercising a lien can only be recovered as a matter of express contract.⁶⁴⁹ BIFA, clause 8(A)(i) now650 makes clear that storage charges continue to accrue during the exercise of the lien.⁶⁵¹ In Kala, ⁶⁵² it was considered that they cannot be acquired by unilaterally seeking to impose them at the time the lien is exercised which includes a claim for demurrage on trailers necessarily delayed by the exercise of a lien on the goods contained in them. However, in this case the forwarders were able to justify their claim for such sums under the rights granted by the indemnity

^645. E.g. TT CLUB 400, cl. 23 and DAMCO, cl. 41.

^646. As, e.g., in Caldwell v. Sumpters [1972] Ch. 478, see Palmer, p. 915, 15–081, where the third party receiver of the goods held them to the order of the bailee.

^647. Crossley Vaines, p. 138 and see Kala, fn. 643 above. As to time of payment see cl. 21(A), 2.266 below.

^648. Gromal (UK) Ltd (in liquidation) v. W.T. Shipping Ltd, CA, 13 July 1984, unreported. See also DRL Ltd v. Wincanton Group Ltd [2011] EWCA Civ 839, where the exercise of the lien was in breach of an agreement to pay a certain sum towards money owed and amounted to a repudiation of the contract to provide a home delivery service.

^649. Somes v. British Empire Shipping (1860) 8 HL Cas 338, see also Jarl Tr¨a (above fn. 635, where the judge rejected claims (in the absence of express provision) for storage charges during the period of exercise of the lien, interest on the amount outstanding and solicitors' fees presented as part of the costs of exercising the lien, although the judge noted this did not prevent the defendants from seeking an award of costs in the exercise of the court's discretion). Cf where the charges are incurred for the preservation of the goods prior to the demand for possession, per Lord Diplock, China Pacific SA v. Food Corpn of India (The Winson) [1982] AC 939, [1982] 1 Lloyd's Rep 117, at p. 963 and p. 125 distinguished in this context in Metall Market OOO v. Vitorio Shipping Co Ltd (The Lehmann Timber) [2012] EWHC 844 (Comm), [2012] 2 Lloyd's Rep 73.

^650. Inserted since BIFA 2000.

^651. Cf DHL Express (UK) Ltd STC, cl. 17.2 which entitles the company to charge for the cost of loading and unloading whilst a lien is being exercised together with warehouse rent and any other expenses incurred during the period during which the lien is being asserted.

^652. Fn. 643 above.

clause in use at that time653 and thereby justify their claim for a lien, provided that the sum represents an actual liability of the forwarder and not a mere unquantified claim against him.

2C.9.5 Active lien

At common law there is no right to sell goods to satisfy the debt which is the subject 2.162 of the lien.654 Such a lien is passive and not active.655 BIFA, clause 8(A)(ii) provides a right of sale exercisable only after 28 days' notice in writing has been given to the customer.656 The clause entitles the carrier to pay over the balance remaining after satisfying the lien and the costs of sale or disposal. As an agent the forwarder will be required to act reasonably in and about the conduct of the sale.

Apart from this clause 2.163 ⁶⁵⁷ an agent would be justified in selling goods only in circumstances of necessity, the agent acting for the interests of the owner in circumstances where it is not possible to communicate with the owner before the sale becomes necessary, principles applied in cases concerning carriers by land.⁶⁵⁸ BIFA clause 8(B) removes the obstructions to sale imposed by common law so that the carrier can satisfy his lien by sale of perishable goods immediately upon any sum becoming due whether or not the sale is necessary, or in the interests of the customer and on taking only reasonable steps to inform the customer. It enables the carrier to ensure that his lien does not become worthless due to the deterioration of the goods.659

2C.9.6 Effect of compulsory rules

Where an international regime of liability applies, the possibility arises that any 2.164 contractual rights of lien may be negated because of inconsistency with the compulsory regime which may have its own regime for enabling the carrier to recover carriage charges by means of retaining possession of the goods until payment. This is the case under the CMR Convention by virtue of Article 13(2). In T. Comedy (UK) Ltd v. Easy Managed Transport Ltd,⁶⁶⁰ Hirst QC considered that Article 13(2) creates a self-contained code whereby the consignee has the right to require delivery of the goods on payment of the charges shown to be due on the consignment note and coupled with the 1965 Act creates a statutory lien for the carriage charges. Consequently the general lien granted by RHA Conditions and the particular lien, to the extent that it was wider than that granted by Article 13(2), were null and void under Article 41 of CMR. In the event, since no carriage charges

^653. See further and compare BIFA, cl. 20, 2.250.

^654. Subject to necessity which is considered below.

^655. Mulliner v. Florence (1878) 3 QBD 484.

^656. See also Geologistics GTC, cl. 11, TT CLUB 400, cl. 23, DAMCO, cl. 41, DHL Express (UK) Ltd STC, cl. 17.1, HAFFA, cl. 14.

^657. Or other clause granting a right of sale, e.g. cl. 10(B), see below, 2.168.

^658. Sims & Co v. Midland Ry [1913] 1 KB 103, and Springer v. Great Western Ry [1921] 1 KB 257. See further Palmer, 2nd edn, p. 998, Bowstead and Reynolds, Art. 33 and Fridman, p. 140.

^659. See Societa Anonima Angelo Castelletti v. Transmaritime, fn. 589.

^{660. [2007]} EWHC 611 (Comm), [2007] 2 Lloyd's Rep 397.

appeared in the consignment note, no right of lien was available under Article 13(2).

2.165 The rights of lien granted by clause 8 would not be caught by UCTA.⁶⁶¹ Should the forwarder's customer happen to be a consumer, however, there might be a possibility of challenge under the Unfair Terms in Consumer Contracts Regulations 1999.

2C.10 BROKERAGES AND COMMISSIONS

2.166 BIFA 2005A, clause 9

The Company shall be entitled to retain and be paid all brokerages, commissions, allowances and other remunerations customarily retained by, or paid to, freight forwarders.⁶⁶²

2.167 It is common for forwarders to receive commissions from carriers (e.g. air carriers under IATA resolutions) insurers or other operators.663 Such commissions or brokerages may be in place of remuneration from the customer or in addition to it especially where the forwarder is acting in a dual capacity, for example as ship's agent as well as forwarding agent. Where the forwarder acts as a consolidator/ principal charging his client a rate for individual goods and obtaining a bulk discount with a carrier, there will be little difficulty since he is not likely to be considered as acting as an agent. Where he acts as an agent and, in particular, where he charges on the basis of a commission, any further remuneration received from third parties might be challenged as a secret commission.⁶⁶⁴ At common law such commissions or discounts might be justified by custom, but since such custom might be challenged as being unreasonable, as it would purport to justify a potential conflict of interest,⁶⁶⁵ it would require the consent of the principal. The clause, in effect, provides such consent and enables the difficulties to be sidestepped. They might not be so avoided, however, where the forwarder simply makes a profit since this could not strictly be counted as a commission or remuneration customarily retained by forwarders in the trade.666 This type of clause would seem to be less appropriate in contract logistics where a closer relationship and more service orientated contract can be expected.⁶⁶⁷

^661. As opposed to the exclusion clause, see above.

^662. See also Geologistics GTC, cl. 23 and TT CLUB 400, cl. 24, DAMCO STC, cl. 36, HAFFA, cl. 11.11.

^663. See Hill, p. 254.

^664. Turnbull v. Garden (1869) 38 LJC 331, Hippisley v. Knee Bros. [1905] 1 KB 1. See further Bowstead and Reynolds, Art. 50 and Fridman, p. 181.

^665. See Robinson v. Mollett (1875) LR 7 HL 802.

^666. Compare Immediate Transportation Co Ltd v. Speller, Willis & Co (1920) 2 Ll L Rep 645 at p. 647.

^667. TT CLUB 600, cl. 10 provides rather for the use of reasonable endeavours to enable the customer to benefit from reduced third party costs and charges subject to the maintenance of service levels and general customer care.

2C.11 DELIVERY

BIFA2005A, clause 10 2.168

10 (A).⁶⁶⁸ Should the Customer, Consignee or Owner of the Goods fail to take delivery at the appointed time and place when and where the company is entitled to deliver, the Company shall be entitled to store the Goods, or any part thereof, at the sole risk of the Customer or Consignee or Owner, whereupon the Company's liability in respect of the Goods, or that part thereof, stored as aforesaid, shall wholly cease. The Company's liability, if any, in relation to such storage, shall be governed by these conditions. All costs incurred by the Company as a result of the failure to take delivery shall be deemed as freight earned, and such costs shall, upon demand,⁶⁶⁹ be paid by the Customer.670
(B) The Company shall be entitled at the expense of the Customer to dispose of or deal with (by sale or otherwise as may be reasonable in all the circumstances):—
- (i) after at least 28 days notice in writing to the Customer, or (where the Customer cannot be traced and reasonable efforts have been made to contact any parties who may reasonably be supposed by the Company to have any interest in the Goods) without notice, any Goods which have been held by the Company for 90 days and which cannot be delivered as instructed; and
- (ii) without prior notice, any Goods which have perished, deteriorated, or altered, or are in immediate prospect of doing so in a manner which has caused or may reasonably be expected to cause loss or damage to the Company,⁶⁷¹ or third parties, or to contravene any applicable laws or regulations.

2C.11.1 Delivery and transit clauses

BIFA clause 10 deals with circumstances where there has been an inability to make 2.169 delivery. It is, in effect, an end of transit clause in that it seeks, by the exclusion clause, to alter the nature of the forwarder's duty in the circumstances indicated.⁶⁷² It would seem, at first sight, to be relevant only in circumstances where the forwarder has been employed to effect delivery since it refers to the company being

The equivalent sub-clause in BIFA 2000 reads as follows: ''If delivery of the goods or any part thereof is not taken by the Customer, Consignee or Owner, at the time and place when and where the Company is entitled to call upon such person to take delivery thereof, the Company shall be entitled to store the goods or any part thereof at the sole risk of the Customer, whereupon the liability of the Company in respect of the goods or that part thereof stored as aforesaid shall wholly cease and the cost of such storage if paid for or payable by the Company or any Agent or Sub-Contractor of the Company shall forthwith upon demand be paid by the Customer to the Company.''
Once a sum has become ''due'' by having been demanded by the forwarder it can become subject to the lien granted by cl. 8, 2.147 above, provided that the forwarder is in constructive possession of the goods in storage.
Cf Geologistics GTC, cl. 10, TT CLUB 400, cl. 21, DAMCO STC, cl. 40. See further HAFFA, cl. 18 which deals with this situation by use of the concept of deemed delivery and DHL Express (UK) Ltd STC, cl. 11 which provides for a more general clause dealing with inability to deliver for reasons beyond the company's reasonable control. Other trading terms tend to include, in addition to the delivery clause, provisions dealing with hindrances to performance which may include termination which can then trigger the effect of the delivery clause having placed the goods at the disposal of the customer, e.g. DAMCO, cl. 39, TT CLUB 400, cl. 20.
The reference to the Company in addition to third parties was added to the 2000 conditions (formerly cl. 12 of BIFA 1989).
Cf TT CLUB 400, cl. 21 which in such circumstances entitles the forwarder to store the goods in the open or under cover at the sole risk and expense of the customer. Cf DAMCO STC, cl. 40 which goes on to add a proviso that the Company thereafter takes reasonable steps to bring any such storage to the Customer's attention.

entitled to deliver.673 The forwarder might, however, need protection where he is employed as an agent and is forced under his duty of care to regain possession or control of the goods on the inability of the carrier to effect delivery, although this does not sit happily with the wording of the clause. At common law a carrier in possession of the goods at the end of transit, whilst losing any possible liability as an insurer⁶⁷⁴ will probably retain some duty of care even if not to the same extent as the duty normally applicable to a bailee for reward.675

2.170 Unlike some standard carrier conditions676 BIFA clause 10 is not specific as to the precise period of transit. It refers to the time and place when and where the company is entitled to deliver.677 Where the goods are to be delivered to a consignee's address, this is likely to be construed as meaning delivery to the consignee during usual hours of business, as at common law.⁶⁷⁸ Where goods are to be collected, transit, at common law and under RHA Conditions, will not normally cease until after a reasonable time⁶⁷⁹ and it may be possible to imply a duty to give notice of arrival.⁶⁸⁰ Where, for whatever reason, the goods are left on the forwarder's hands the clause appears to imply that transit ceases. It may be, however, that the clause does not contemplate an arrangement for collection from the forwarder's depot. Arguably the point is left open and it may therefore be possible to imply a reasonable time for collection. Alternatively, under the clause as it appeared in BIFA 2000,⁶⁸¹ being entitled to call for delivery to be taken might be taken to imply (a) notice, for the purpose of making the call and (b) reasonable time in which to respond to the notice.

2.171 The interpretation that the clause does not contemplate collection would, however, have fitted with a view that might have been taken in light of the remainder of the clause in BIFA 2000 which made reference to the cost of storage ''if paid for or payable by the Company . . . ''. This suggests that the clause at that time contemplated storage of the goods with a third party rather than by the company in its own depot.682 If correct, this would mean that transit (in the sense of an altered basis of liability) would cease, and the exclusion would apply, only when the goods were stored with a third party and the clause would implicitly permit the forwarder to do this. On this view, should goods remain in the forwarder's depot the general clauses dealing with liability and limitation would continue to apply. The clause now

^673. Cf TT CLUB 400, cl. 21 which also refers to the person whose services the company makes use of, although this might simply mean where the company subcontracts for delivery.

^674. See Chapman v. Gt. Western Ry (1880) 5 QBD 278.

^675. Compare G.N. Ry v. Swaffield (1874) LR 9 Ex. 132, McKinnon v. Acadian Lines (1978) 81 DLR (3d) 480, Mitchell v. L. & Y. Ry (1875) LR 10 QB 256 with Heugh v. L. & N.W. Ry (1870) LR 5 Ex. 51. See Palmer, 2nd edn, p. 1003. It is possible that after taking steps to secure storage of the goods with a third party any non-delegable duty normally applicable in bailment would thereby cease.

^676. E.g. RHA Conditions of Carriage 2009, cl. 6, BRB Conditions 1986, cl. 10.

^677. As does TT CLUB 400, cl. 21 although referring rather to the time and place when and where the ''Company . . . is entitled to call upon the Customer or Owner to take delivery''.

^678. Chapman, above, fn. 674 at p. 281.

^679. Chapman, above, fn. 674.

^680. See Mitchell, fn. 675, above. Compare Houlder v. General Steam Navigation (1862) 3 F&F 170 in carriage by sea, see Glass and Cashmore, p. 35.

^681. See fn. 668.

^682. A forwarder, as such, has no obligation to store the goods himself: Club Speciality (Overseas) Inc v. United Marine [1971] 1 Lloyd's Rep 482, at p. 485, cf TT CLUB 400, cl. 21.

simply refers to ''all costs'' and is therefore neutral as to whether these costs are incurred directly or indirectly.

The cesser of liability would relieve the forwarder of continuing liability for the 2.172 risks of continued storage and possibly negligence of any third party.683 It would not, it is submitted, cover liability for negligence in the initial process of storing the goods (for example placing them in an insecure or unsafe place) or a failure in respect of the choice of a third party. Such liability would remain subject to the duty expressed in clause 23.⁶⁸⁴ The addition in the current clause that the company's liability, if any, in relation to such storage, shall be governed by the conditions would seem to cover this. It might also cover other breaches of duty, such as a duty to give notice to the customer of an inability to deliver where this can be implied, but it is doubtful whether it could cover liability for damage to the goods arising during carriage to a place of storage although it can be considered that the general conditions would in any case apply up to that point. Clearly liability ceases only when the goods have been stored.⁶⁸⁵ The cesser of liability provides further protection to a forwarder faced with the argument that since he has not stored the goods himself the protective provisions do not apply.686

So far as costs are concerned, the clause may add little to the common law rights 2.173 available to a bailee to claim expenses incurred in preserving the goods⁶⁸⁷ or a forwarder incurring an expense that was reasonably necessary in performing their duty.688 A clause in previous editions of IFF Conditions provided that pending forwarding or delivery, goods could be warehoused at the forwarder's discretion at the customer's expense. Although strictly confined to the periods indicated,689 such clauses might give a wider discretion than at common law to incur the expense.690

The BIFA clause does not impose an express obligation on the customer to take 2.174 delivery which such express obligation might provide a further possibility of obtaining an order of ''specific performance'' in circumstances where the taking of delivery is refused as was considered in P & O Nedlloyd BV v. Arab Metals Co (No. 2)⁶⁹¹ which is discussed below at 2.210.

^683. Presumably authority to store with a third party can be obtained from cl. 5 if the word store in itself cannot be taken to mean both to store personally or through another (cf Metaalhandel JA Magnus BV v. Ardfields Transport Ltd [1988] 1 Lloyd's Rep 197.

^684. See above, 2.95.

^685. It will anyhow be subject to UCTA, see 2C.2.2. Compare the possible argument in respect of TT CLUB 400, cl. 20, (2.131), which clause might still be available in circumstances covered by cl. 19 b. 686. Cf Firmin & Collins Ltd v. Allied Shippers Ltd [1967] 1 Lloyd's Rep 633, and L. Harris (Harella) Ltd v. Continental Express and Burns Transit Ltd [1961] 1 Lloyd's Rep 251.

^687. G.N. Ry v. Swaffield, fn. 613 above, China Pacific SA v. Food Corpn of India (The Winson) [1982] AC 939, [1982] 1 Lloyd's Rep 117.

^688. Immediate Transportation Co Ltd v. Speller, Willis & Co (1920) 2 Ll L Rep 645 at p. 647 (see further below, 2.256.

^689. See Kala Ltd v. International Freight Services (UK) Ltd, QBD, 7 June 1988, unreported.

^690. TT CLUB 400, cl. 20, would also appear to do so where the forwarder decides to abandon the performance in the circumstances indicated in the clause.

^{691. [2007] 2} Lloyd's Rep 231, [2007] 1 WLR 2288.

2C.11.2 Power of sale

2.175 At common law any sale by the forwarder of the customer's goods requires to be justified by agency of necessity.692 Alternatively, where the forwarder is a bailee a power of sale may by exercised by virtue of section 12 or 13 of the Torts (Interference with Goods) Act 1977. BIFA clause 10(B) provides an express power of sale which distinguishes non-perishable and perishable goods.
2.176 In respect of non-perishable goods BIFA clause 10(B)(i) requires either 28 days' actual notice693 to be given to the ''customer'' and so can be satisfied by giving notice to the person requesting the services or the person on whose behalf the services are provided,694 or no notice if no such notice can be given because the customer cannot be traced, on taking reasonable efforts to contact persons who reasonably appear interested in the goods. It appears from the structure of the clause that the goods must have been held for 90 days before the forwarder can give the notice and it must not have been possible to deliver as instructed.695 The clause clearly presupposes some knowledge in the forwarder that there are persons so interested and appears to require the forwarder to attempt to contact all such persons as might be so interested. It is unclear whether the clause is satisfied when contact has in fact been made with one of those persons. The forwarder is well advised to be diligent in his efforts as there is a risk of committing a conversion against a person interested in the goods, should there be any lack of privity of contract between them. Clause 10 (B) can be considered to stand alone and not conditioned by circumstances indicated in sub-clause (A) although an argument might be made to that effect. Other trading conditions may provide for a right of sale in a stand-alone clause or in a clause dealing with a range of causes for the inability to deliver as instructed.696
2.177 Under BIFA clause 10(B)(ii) no notice is required in respect of perishable goods.697 The goods can be sold when they have perished, deteriorated or altered or are in immediate prospect of doing so, which latter phrase presumably refers back to all the other possibilities indicated.698 The qualification that the goods must have caused or may be expected to cause loss or damage appears to relate both to where goods have in fact perished, etc, or are about to do so.699 Thus interpreted the sub-

^692. See above 2C.9.5.

^693. Cf Geologistics GTC, cl. 10(B)(i) in similar terms and TT CLUB 400, cl. 22(A) which specifies 21 days.

^694. See cl. 1, above 2.19.

^695. Cf TT CLUB 400, cl. 22, CIFFA, cl. 11.

^696. Cf TT CLUB 400, cl. 22, DHL Express (UK) Ltd STC, cl. 11, CIFFA, cl. 11. DAMCO STC, cl. 41 deals with the rights of disposal and lien in the same clause which might raise an issue as to whether the two rights are interdependent.

^697. Clause 10 overlaps with cl. 15 but under that clause there would only be a duty to notify the customer before taking action if the goods had been accepted under written instructions, (see below, 2.203).

^698. TT CLUB, cl. 22(B) is in similar terms. Geologistics GTC, cl. 10(B)(ii) refers to perishable goods which are not taken up immediately on arrival, or incorrectly addressed or marked or which in the opinion of the company would be likely to perish in the course of carriage, storage or handling. Presumably the BIFA clause is not intended to apply only on the arrival of the goods although an argument along those lines might be made based on the overall context of cl. 10.

^699. Since goods which are in prospect of perishing are unlikely to have produced actual damage.

clause has a more limited and reasonable application. The reference to the Company as well as Third Parties was added by BIFA 2000.700

2C.12 LIMITATIONS OF PERFORMANCE—INSURANCE

BIFA 2005A, clause 11 2.178

11(A) No insurance will be effected except upon express instructions given in writing⁷⁰¹ by the Customer702 and accepted in writing by the Company,⁷⁰³ and all insurances effected by the Company are subject to the usual exceptions and conditions of the policies of the insurers or underwriters taking the risk.⁷⁰⁴ Unless otherwise agreed in writing, the Company shall not be under any obligation to effect a separate insurance on the goods,⁷⁰⁵ but may declare it on any open or general policy held by the Company.706
(B) Insofar as the Company agrees to effect insurance, the Company acts solely as agent for the Customer, and the limits of liability under clause 26(A)(ii) of these Conditions shall not apply to the Company's obligations under Clause 11.⁷⁰⁷

^700. Formerly cl. 12 in BIFA 1989.

^701. It is understood that the need for instruction in writing is to ensure that there is proof that there was an intention to insure.

^702. For the effect of the clause see 2C.12.3 below.

^703. The requirement of acceptance in writing by the company was added after BIFA 2000.

^704. The reference here to the usual conditions of the insurer, presumably, ''is intended to cover any special limitations which underwriters may from time to time impose'', Hill, p. 280. Where some ''usual'' condition of a particular insurer is, in fact, unusual among insurance terms generally adopted, an issue relating to skill and care of the forwarder in obtaining the insurance might arise, as discussed in 2C.5, unless, as indicated in 2.132, the express right granted by the clause is considered to negative any wider duty.

^705. BIFA 2000 referred to each consignment.

^706. The right expressed here to declare goods of the customer on an open or general (e.g. floating) policy reflects a long-standing practice of forwarders, e.g. James Vale & Co v. Van Oppen & Co Ltd (1921) 6 Ll L Rep 167, 37 TLR 367. The clause would appear to protect a forwarder in circumstances where it might otherwise be implied that a policy should be obtained or possibly a duty to warn that no policy is to be provided, e.g. where the customer is known to be a seller CIF who should provide a policy rather than a certificate to his buyer under the terms usually implied under such a contract of sale, Harper & Co Ltd v. R.D. Mackechnie & Co (1925) 22 Ll L Rep 514, cf Schmitthoff, para. 2–023. In Granville Oil & Chemicals Ltd v. Davies Turner & Co Ltd [2003] EWCA Civ 570, [2003] 2 Lloyd's Rep 356 (CA), the forwarder arranged insurance for the claimant and informed them that it was on all risks terms. Unfortunately under the terms of their open cover, against which the cargo had been declared, the cargo would only be covererd if inspected prior to shipment, which was not the case. The case proceeded on the basis that this failure in arrangement was a breach of contract. See further below fn. 707.

^707. Under the 1989 Conditions the equivalent to this clause made any failure in respect of insurance arrangements subject to the limits of liability as currently expressed in cl. 26 (cl. 29 in BIFA 1989 and cl. 27 in BIFA 2000). In Overseas Medical Supplies Ltd v. Orient Transport Services [1999] 2 Lloyd's Rep 273, where the forwarder failed, without explanation, to obtain the insurance as agreed in the contract, it was held that the applicable limit failed to satisfy the test of reasonableness in the Unfair Contract Terms Act 1977, see below 2.301. In the current conditions insurance arrangements are expressly removed from the limit that would otherwise be applicable so that the issue in Overseas Medical Supplies would not arise under the current conditions. Any failure in such arrangements will be subject, however, to the time limit in BIFA, cl. 27(B), see 2.304. The equivalent clause of the 1989 edition was upheld as reasonable by the Court of Appeal in Granville Oil & Chemicals Ltd v. Davies Turner & Co Ltd, above fn. 706. See further 2.309. This case concerned the failure of the forwarder to obtain effective cover. One difference with Overseas Medical Supplies was the commercial standing of the claimant suggestive of equal bargaining strength with the defendant.

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FREIGHT FORWARDING AND MULTIMODAL TRANSPORT CONTRACTS

SECOND EDITION

MARITIME AND TRANSPORT LAW LIBRARY

FREIGHT FORWARDING AND MULTIMODAL TRANSPORT CONTRACTS

- - ------ --- !-" -!-# !-\$%-\$&'-'(-

To my wife Jane

PREFACE TO SECOND EDITION

TABLE OF LEGISLATION

TABLE OF LEGISLATION

TABLE OF INTERNATIONAL CONVENTIONS

CHAPTER 1

CHAPTER 2

2. APPLICATION

53. Amendments

1. In these conditions

1. DEFINITIONS & INTERPRETATION

2.24 BIFA 2005A, clause 2(B), P & O Ferrymasters General Conditions 2011, clause 2.3.

2.33 BIFA 2005A, clause 3 and BIFA 1989, clause 4

2.72 (b) The method of charging adopted by the forwarder

(c) The extent to which the customer is kept informed of arrangements made on his 2.73 behalf

(d) The usual course of business of the forwarder 2.74

(e) The forwarder's relationship with the physical performer of the service 2.75

As agent for the carrier DYNAMIC CONTAINER LINE JARDINE FREIGHT SERVICES (HK) LTD

2C.5 RESPONSIBILITIES OF THE FORWARDER OR LOGISTICS PROVIDER

BIFA 2005A, clause 23, TT CLUB 600, clauses 4.1 and 4.2 2.95

BIFA 2005A Clause 6(A) and BIFA 1989, clause 7 2.124

2.134 BIFA 2005A, clauses 4(B) and 5

2.141 BIFA 1989, clause 9

2.147 BIFA 2005A, clause 8

2.166 BIFA 2005A, clause 9

BIFA 2005A, clause 11 2.178

glassfreightforwardingmultimodal2013.md 1.1 MB

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