Bill of lading considerations

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87
9.3.2 Bills of lading form. Whenever possible, bills of ladings should be issued on the Congenbill 1994 or
2007 form or similar. It is strongly recommended that the Congenbill 1978 form or similar should
NOT be used. Otherwise the arbitration clause may not be validly incorporated into the bills of lading.
9.3.2.1 Whenever possible and depending on the arbitration/laws set forth in the governing
charter party, bills of lading should have the words “LONDON/NEW YORK* ARBITRATION
ENGLISH/U.S. LAW* APPLICABLE as per the charter party dated [date inserted here], copy
attached. F.I.O.S.T” typed on the front, as relevant.
9.3.2.2 An example of an ideal bill of lading is provided in Appendix 4.
9.3.2.3 In some civil law countries, only physically attaching a copy of the incorporated charter
party to all original and to all copies of bills of lading before their release will ensure valid
incorporation of the charter party clauses including the law and jurisdiction clauses.
9.3.3 U.S. Trade Clause – Incorporation of U.S. COGSA. For shipments to/from the U.S., vessel owners
should consider the incorporation of a U.S. trade clause providing for application of the U.S.
Carriage of Goods by Sea Act (“COGSA”). COGSA contains a package limitation defense that is
particularly well suited for steel cargo claims. Many of the common packaging methodologies used
for steel shipments may be deemed COGSA “packages,” e.g., such as steel coils, bundles of pipe or
wire, etc. By contrast for those same shipments, other cargo reliability regimes, such as Hague-Visby,
may result in limitation values that are significantly higher, often far in excess of the amount of the
claim, due to the weight of the cargo. For shipments to/from the U.S. where a U.S. Trade Clause
has been incorporated, vessel owners may further consider incorporation of a U.S. jurisdiction
clause as U.S. courts and arbitrators will be more familiar with the COGSA package limitation
defense and arguably more inclined to enforce same.
9.3.4 Potential prejudice to P&I coverage for cargo claims. Whenever possible, the vessel owner should
ensure that any decisions made in connection with the carriage of steel cargoes do not unnecessarily
prejudice a vessel owner’s protection under the P&I insurance policy. All International Group of P&I
Clubs contain provisions in their P&I contract terms which provide that coverage for cargo claims
may be prejudiced under the following circumstances:
9.3.4.1 delivery of cargo to a port or place other than the port or place listed in the governing
bills of lading or contract of carriage;
9.3.4.2 delivery of cargo without production of original bills of lading;
9.3.4.3 the issue of antedated or postdated bills of lading;
9.3.4.4 the issuance of a bill of lading with the knowledge of the vessel owner or the Master of
the insured vessel with an incorrect description of the cargo or its quantity or its condition; or

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9.3.4.5 the failure to arrive or the late arrival of the insured vessel at a port of loading, or the
failure to load any particular cargo in an insured vessel other than liabilities, loss and
expenses arising under a bill of lading already issued.
9.3.5 Some consideration for deck cargoes.
9.3.5.1 Shipper’s Risks Clauses—Generally. The responsibility for cargo damage in the context
of on-deck carriage can be somewhat complex and will likely vary depending on the
applicable carriage contract terms, jurisdiction and governing law. For example, "shipper's
risk" clauses printed on the face of a bill of lading can exculpate a carrier from liability
for damage that is normally incident to deck carriage (i.e., damage due to exposure to
the elements). A “shipper's risk” clause places on the shipper "the customary and
predictable risks of deck carriage."). However, “shipper's risk” clauses generally will not
exonerate a carrier from damage caused by negligent or improper stowage. It is
recommended that a vessel owner should consult with its P&I club or a qualified maritime
lawyer for specific advice concerning the subject voyage or scenario in question.
9.3.5.2 Exclusions under COGSA. COGSA does not apply of its own force - i.e. as a matter of
law - to carriage of cargo on deck. Thus, where cargo is being carried to or from the
United States, in order avail itself of COGSA's defenses, including the $500 package
limitation defense, the carrier should consider contractually extending COGSA to deck
cargo by including an express provision in the bill of lading. When extending COGSA
contractually, the carrier should be very careful do so as explicitly as possible.
The bill of lading should employ "sufficiently express language" that the on-deck cargo is
subject to COGSA. In the absence of such an express incorporation clause - specifically
covering deck cargo - the carrier runs the risk that a court will find that COGSA has not
been contractually extended by the parties, thereby depriving the carrier of its $500
package limitation defense. To the extent a vessel owner has a question as to whether
their bill of lading affords adequate protection to deck cargo, it should confer with its P&I
club and/or counsel.

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