In relation to the majority of the cargo that in the past was carried by ship, a Bill of Lading would be issued by the carrier. Therefore, Book 8 of the Dutch Civil Code contains several articles that relate to carriage of goods under a Bill of Lading. However, nowadays in case of the majority of the shipments that concern carriage of goods by ship no Bill of Lading is issued, but instead a Sea Waybill. The question is therefore what the consequences are if goods are carried under a Sea Waybill for the title to sue of the consignee and the relation between the carrier and the consignee. The Court of Rotterdam had to consider this in the recent Court case FRIO HELLENIC, 30 April 2014, S&S 2014, 131. Below we will touch on this question by discussing the judgment of the Court. In that respect we will first briefly touch on the characteristics of a Bill of Lading and Sea Waybill.
Characteristics of Bill of Lading and Sea Waybill
First of all the Bill of Lading. A Bill of Lading has three characteristics, being:
- receipt that the cargo WAS received by the carrier;
- evidence of the contract of carriage; and
- document of title to the goods, which means that only the holder of the Bill of Lading is entitled to claim delivery of the goods in accordance with the duties that rest upon the carrier.
In view of the document of title characteristics of the Bill of Lading it is relevant that the Bill of Lading that is issued can be a straight Bill of Lading on which the name of the consignee is mentioned or an order Bill of Lading. If a straight Bill of Lading is issued on which the name of the consignee is mentioned, then this does not automatically mean that the consignee also becomes a party to the contract of carriage. The consignee will only become a party to the contract of carriage if the original Bill of Lading is presented to the carrier in the port of discharge. If the consignee indeed presents the original Bill of Lading to the carrier in the port of discharge, then the consignee becomes a party to the contract of carriage and in that case is bound by the Bill of Lading conditions. This is also the case if a third party (receiver) presents an order Bill of Lading to the carrier in the port of discharge. This third party (receiver) becomes a party to the contract of carriage by presenting the order Bill of Lading in the port of discharge. The result of this is that the Bill of Lading conditions apply to the relation between the carrier and the third party (receiver).
A Sea Waybill is also a receipt and evidence of the contract of carriage. However, a Sea Waybill is not a document of title. Pursuant to Dutch law this means that in case a Sea Waybill is issued by the carrier, the consignee will not become a party to the contract of carriage if he takes delivery of the cargo in the port of discharge.. If English law applies this is different. Pursuant to Section 2 Par 1 sub b COGSA 1992 the consignee also becomes a party to the contract of carriage, if a Sea Waybill is issued by the carrier.
Judgment Court of Rotterdam
Then we will now touch on the judgment of the Court of Rotterdam.
In this case the shipowner entered into a Pool Agreement with an operator, based on which the operator would operate the vessel FRIO HELLENIC which was owned by the shipowner.
The shipper booked the carriage by sea from Auckland to Rotterdam of several containers with the operator. The containers contained a shipment of onions. After the containers were stowed on board the FRIO HELLENIC two Sea Waybills were issued on the operator’s form.
Eventually the quality of the onions deteriorated as result of delay during the voyage. The parties that were mentioned as consignee on the Sea Waybills claimed their loss through proceedings before the Court of Rotterdam. In the proceedings the Court had to determine whether the consignees became a party to the contract between the operator and the shipper by taking delivery of the cargo. In that respect the Court held the following in paragraph 4.6 of the judgment:
“As (consignee 1) correctly argues it has become a party to the contract of carriage between the shipper and the operator by taking delivery of the cargo. From the definitions as set out in Article 1 of the Conditions of Carriage it follows that the term Merchant includes the consignee. In combination with, amongst other things, the wording of the Identity of Carrier Clause (The contract evidenced hereby is between the Merchant and the owner of the Vessel named herein..) it can be concluded that between the shipper and the operator it is agreed pursuant to Article 6:253 Dutch Civil Code that a third party, namely the consignee, has certain rights under the contract. However, the third party does not have more rights under the contract then the shipper of the goods, which means that (consignee 1) and (consignee 2) in principle are also bound by the liability exceptions as agreed between the shipper and the operator.”
The Court concludes in this judgment that the consignees became a party to the contract of carriage, because the Sea Waybills contained a third party rights clause and this clause was accepted by the consignees by taking delivery of the goods. With a third party rights clause in the meaning of Article 6:253 Par 1 Dutch Civil Code is referred to a clause in a contract that creates for a third party who is not a party to the contract, the right to claim performance of one of the parties to the contract or to claim in any other way under the contract. Pursuant to Article 6:253 Par 3 Dutch Civil Code a third party has to accept the third party rights clause. Such acceptance can be done in any form, so verbally, in writing or through conduct. In this judgment the Court held that acceptance of the third party rights clause occurred through conduct, being taking delivery of the cargo.
It follows from the judgment of the Court of Rotterdam, that if a Sea Waybill is issued, a third party (receiver) can also become a party to the contract of carriage by taking delivery of the cargo, if the conditions as mentioned on the Sea Waybill contain a third party rights clause. The question is whether this judgment is correct. This because one could argue that, if Article 6:253 Par 1 Dutch Civil Code is explained/applied correctly, it is relevant that the contract between the operator and the shipper contains a third party rights clause and not whether the conditions as set out on the Sea Waybill contain a third party rights clause. This because the contract between the operator and the shipper can normally be set out in a booking confirmation or contract of carriage (contract of affreightment or voyage charter party) and will not be set out in a Sea Waybill. It will therefore be interesting to see whether or not this judgment will be reversed in the future.
Krachtens art. 6:253 lid 3 BW dient een derde het derdenbeding te aanvaarden. Een dergelijke aanvaarding kan in iedere vorm geschieden, dus zowel mondeling, schriftelijk, als ook middels een gedraging. De Rechtbank is in dit vonnis van oordeel dat de aanvaarding van het derdenbeding is geschiedt middels een gedraging, te weten het in ontvangst nemen van de lading.
Uit het vonnis van de Rechtbank volgt dus dat, indien een Sea Waybill is uitgegeven, een derde-ontvanger ook partij kan worden bij de vervoerovereenkomst middels inontvangstname van de lading, indien er in de bepalingen van de Sea Waybill een derdenbeding staat. De vraag is of deze uitspraak juist is. Gesteld zou namelijk kunnen worden dat, indien art. 6:253 lid 1 BW correct wordt uitgelegd c.q. toegepast, van belang is of er in de overeenkomst tussen de operator en afzender een derdenbeding staat en niet of een derdenbeding in de condities van de Sea Waybill staat. De overeenkomst tussen de operator en de afzender zal doorgaans namelijk zijn neergelegd in een boekingsbevestiging of vervoerovereenkomst (contract of affreightment of reisbevrachtingsovereenkomst) en is niet neergelegd in een Sea Waybill. Het zal daarom interessant zijn om te zien of deze uitspraak in de toekomst in stand blijft.
