Major Challenges In Multimodal Transport Overlap With Freight Forwarder Diligence Duties – An Introspection Of Cases At Hand

By Author: Premkumar Nadarajan.
Total Articles: 26
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A forwarder has a duty to forward goods without delay unless he has received instructions to the contrary. He has therefore an implied authority to do so (Patel v. Keeler 7 Co [1923] AD 506). 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 agree. (Club Speciality (Overseas) Inc v. United Marine [1971] 1 Lloyd’s Rep 482) .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. (Jaffer Esmail & Co v. Sorabjee M.Hooker 6 EALR 35).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. For example 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. (Margolis v. Newson Bros Ltd (1941) 71 Ll L Rep 47).It is the duty of the forwarder to give his client the fullest information regarding 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 actual 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 duty as an agent, in circumstances where he would not otherwise be personally liable for the loss ( Carl Osterberg v. Shipping & Transport Co (1922) 13 ll L Rep 562 ).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.( Gillette Industries Ltd v. W.H.Martin Ltd [1966] I Lloyd’s Rep 57 ) .On the other hand, it was not negligence on the part of the 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. (G.W.Sheldon & Co (London) Ltd v. Alfred Young & Co 9 1921) 6 ll L Rep 466).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. ( Geofizika Dd v. MMB International Ltd Greenshields Cowie & Co Ltd ( Third Party)( The Green Island) [2010] 2 Lloyd’s Rep 462 ) . Where a Bill of Lading contained the usual liberty to stow on deck , 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 court in The Green Island case took it to mean that there was a warranty to stow under the deck; the consequences of the breach of warranty was so severe, it should not have been given without due care being taken that the cargo was under deck. Commercial combined transport bills of lading more usually make a distinction between port to port and combined transport which can be determined by the indications as to place of receipt and delivery on the face of the bill, so that the document might more accurately reflect the contractual intention. (The Antwerpen [1994] 1 Lloyd’s Rep 213 9 CA NSW)Obviously, leaving the place of receipt and delivery sections blank will mean that the bill is one for port to port transport. (M.C.Watkins v. M/V London Senator [2000] AMC 2740 (ED Va)).In New Holland Australia Pty Ltd v. TTA Australia Pty Ltd (The Resolution Bay) (1995) 397 LMLN 4 (SC NSW, 6 December 1994), a bill of lading was held to be for port to port shipment notwithstanding that the letters “CFS” (Container Freight Station) were inserted in the “Place of Acceptance” and the “Place of Delivery” boxes. These letters did not trigger the use of the document as a combined transport bill of lading because they were not a meaningful address and were accordingly meaningless. This had the consequence that the defendant was unable to limit its liability in accordance with the terms of the bill. On the other hand, in a French decision (Cour d’Appel, Paris, 16 February 96 Bulletin des Transports 1996, No.2663, p.402), the indication of Jeddah CY (held to correspond to container yard) in “place of delivery” had the effect of extending the responsibility of the carrier beyond the place of discharge. The attempt to limit responsibility by reference to article 1(e) of the Hague-Visby Rules was rejected in the said French case. A similar approach was taken by the English Court of Appeal in East West Corp v. DKBS 1912 [203] 1 All ER ( Comm).525.Since combined transport terms involve an extended liability they may have the advantage of providing a degree of flexibility for the carrier which might not be available to carriage on simple port to port terms.( Z.I Pompey v. ECU-Line N.V., M/V Conmar Fortune).In the Pompey case , the Federal Court of Canada ( Trial Division ) held that where there was a port-to-port bill of lading and the sea carrier, on his own initiative, discharges at a different port in order subsequently to organise inland carriage by rail to deliver the goods to the contractually agreed port of discharge, he acts outside the bill of lading and loses the protection of the contract. Even where a carriage is on terms covering multimodal transport there may yet be the possibility of applying a deviation concept, even to non-sea sections of a transport, especially where the Hague Rules have been extended to cover such sections. ( Vistar SA v. M/V Sea-Land Express 792 F.2d.469 ( 5th Cir. 1986).There would be no unreasonable deviation for example, where a container was inadvertently left on the vessel in New York and sailed to Japan and California before being discharged when the vessel returned to New York. (Fireman’s Fund Insurance Co v. Orient Overseas Container Line Ltd [2003] AMC 1795 (NY Civil Ct).)

lecturer at a private learning institution ( UTAR).