Transport Guidance for Steel Cargoes
Burden of proof and the Retla clause
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- Điều hướng trang này:
- Section 8.3.1
| 9.4 Burden of proof and the Retla clause
9.4.1 Burden of proof: An overview. As in any cargo claim, claimants bear the initial burden of proof to establish good order and condition of the steel cargo at the time it was turned over to the vessel owner/carrier and that the steel cargo was discharged and in a damaged condition upon delivery. Thus, vessel owners should be mindful of the critical importance of fully inspecting and documenting any pre-carriage defects in the cargo, including physical and rust damage, as well as damage to any American Club: Transport Guidance for Steel Cargoes 89 packaging, such as wrappers, securing bands and/or other packaging. Again, this illustrates the importance of conducting a proper and detailed pre-load survey of the cargo as noted in Section 8.3.1. 9.4.2 The Retla clause. 9.4.2.1 The Retla clause draws its name from the case of Tokio Marine & Fire Insurance Co. v. Retla S.S. Co., 426 F.2d 1372 (9th Cir. 1970). In that case, the court upheld a clause which provided that the carrier’s “apparent good order and condition” notation on the bill of lading “does not mean that the goods, when received, were free of visible rust or moisture.” The clause further provided that if requested by the shipper, the carrier will issue a substitute bill of lading omitting the subject clause and setting forth any notations as to rust or moisture consistent with the mates’ or tally clerks’ receipts. 9.4.2.2 In effect, the Retla clause seeks to modify the presumption of good order/condition evidenced by a “clean” bill of lading to exclude rust/moisture damage. The Retla clause has not been without criticism by both courts and legal commentators in the United States. Those courts which have enforced the clause have generally done so on a rather narrow basis, often following strictly the facts presented in the Retla S.S. Co. holding and thus requiring that the clause: (1) be printed on the face of the bill of lading, and (2) provide for issuance of a substitute bill of lading if requested by the shipper. Notwithstanding the criticism of the case, the clause certainly provides a benefit to vessel owners and should be included in bills of lading for carriage of steel cargoes. 9.4.2.3 The use and validity of the Retla clause has also come under criticism by the courts in England. In The SAGA EXPLORER, [2012] EWHC 3124 (Comm), that decision the Court refused to give full effect to the Retla clause, rather construing it such that any qualification as to the good order/condition of the cargo by the carrier is limited as to what “may be expected to appear on any cargo of steel: superficial oxidation caused by atmospheric conditions.” Again, a vessel owner should contact its P&I club or counsel with any questions regarding the potential use of a Retla clause. tải về 1.97 Mb. Chia sẻ với bạn bè của bạn:
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