61. M.B. Pyramid Sound N.V. v Briese Schiffahrts GMBH and Co. K.G. M.S. “The Sina” and Latvian Shipping Association Ltd (The “Ines”) [1995] 2 Lloyd’s Rep 144

Identity of parties – demise clause – Liner bills held to be owners’ bills

The facts

Telephones were shipped from Rotterdam to St. Petersburg.

Agents for the shippers entered into negotiations with agents for the time charterers pursuant to which a bill was signed “as agents for the carrier Maras Linja”. Maras Linja was the appellation of the time charterers and the bill was signed by their agents, Eimskip.

The liner bills contained a demise clause stipulating that the contract evidenced by the bills of lading was between the shipper and the owner of the vessel.

The charterparty contained a clause stipulating that the charterers indemnified the owners against the consequences arising from the master signing bills of lading.

At their destination, the goods were released to the consignees without presentation of the bills of lading.

The goods were not paid for by the consignees and the shippers joined the charterers and owners in an action based, inter alia, on the terms of the bill of lading.

The primary issue to the decided by the court was whether these were owners’ or charterers’ bills.
The shippers and the charterers contended that these were owners’ bills.

The owners denied that they were liable on the bills and contended that, even if they were, an exemption clause in the bills of lading absolved them from liability.

Findings

The court (Clarke J) found that these were owners’ bills.

He relied on the Berkshire where there was a similar demise clause but no qualification of the charterers as carrier. Mention of the Rewia was also made.

Despite the fact that negotiations took place exclusively between the shippers’ agents and the charterers’ agents, the court found that the surrounding circumstances also indicated that these were owners’ bills.

The court held that the exemption clause in the bill of lading could not operate to absolve a party of guilty of fundamental breach which was present.

Commentary

The interpretation of the attestation clause making the descriptive word “agent” apply to both Eimskip and Maras Linja is strained.

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