Explanatory notes

Basic features

LINEWAYBILL 2016 is the latest edition of LINEWAYBILL, first published in 1997, and provides a mechanism whereby it can also be used as a through transport document. This is consistent with CONLINEBILL and, as commercial practice shows, although mainly designed for port-to-port shipments, the CONLINEBILL is often used as a through transport document.

There is no universal legal definition of the term “through transport” although it is normally distinguished from other related types of contracts such as “multimodal transport” as a contract for the unimodal carriage of goods which may be performed by the contracting carrier alone or by sub-contracting carriers. The principle is the same in multimodal transport but there the carrier will perform the contract using at least two different modes of transport.

When the carrier issues a through transport document it may undertake to arrange the pre- and on-carriage as the shipper’s agents only and thus exclude any liability on its part for loss or damage occurring to goods during that part of the transport - or the carrier may contractually assume responsibility towards the cargo interests for the entire voyage.
LINEWAYBILL 2016 follows the basic principle of liability in shipping, i.e. that the carrier shall only be liable for fault or negligence during the part of the transport it performs. For sea transport this principle is firmly embedded in the Hague and Hague-Visby Rules where the carrier is entitled to exclude liability for loss, damage or delay to the cargo beyond “tackle-to-tackle”. LINEWAYBILL 2016 is thus consistent with CONLINEBILL but distinctly different from MULTIDOC 95 where the carrier assumes responsibility for the entire transport.

Face of the document

The face of LINEWAYBILL 2016 by and large follows the traditional BIMCO layout which, coupled with the well tested reservation “weight, measure, marks, numbers, quality, quantity, contents and value unknown”, clarifies the particulars furnished in LINEWAYBILL 2016 for which the carrier assumes responsibility and those for which it does not.
The box where the carrier acknowledges receipt of the total number of containers, packages or units received makes it clear that in the event of containerised cargo being shipped, the carrier only acknowledges receipt of the actual number of containers received and not the contents.

LINEWAYBILL 2016 is subject to the CMI Uniform Rules for Sea Waybills as adopted by the Comité Maritime International (CMI) in order to remedy the lack of international rules governing sea waybills.

Thus, these Rules form the general framework of LINEWAYBILL 2016 although, in the event of a conflict of conditions the Hague or Hague-Visby Rules will apply.

In order to meet the requirements of Article 21 of the ICC Uniform Customs and Practice for Documentary Credits (UCP 600) the face of the non-negotiable sea waybill must indicate the name of the carrier and have been signed or otherwise authenticated by:

• the carrier or a named agent for and on behalf of the carrier, or
• the master or a named agent for and on behalf of the master.

The signature box has been amended accordingly.

On the face of LINEWAYBILL 2016, there is a “Right of Control” provision according to which the shipper is entitled to transfer the right of control of the cargo to the consignee.

The right of control provision is already provided in the CMI Uniform Rules for Sea Waybills, but is included on the face of LINEWAYBILL 2016 to draw attention to it as it is a requirement for the shipper in exercising the option to transfer right of control of the cargo that it is noted on the waybill. This could, for instance, be done in the following way:

“I, the Shipper (named in the Shipper Box on the face of this waybill) hereby transfer the right of control of the cargo carried under this waybill to the Consignee (named in the Consignee Box on the face of this waybill).

Where the shipper has exercised its option to transfer right of control to the consignee, the consignee shall be the only party to give the carrier instructions in relation to the contract of carriage. This clearly follows from the underlying CMI Uniform Rules for Sea Waybills.

Standard terms and conditions

Clause 1 - Definitions

LINEWAYBILL 2016 contains two definitions: that of the “Carrier” and the “Merchant”. Unlike the definition of “Carrier” in, for instance, MULTIDOC 95 which can mean either the performing carrier or the MTO itself, the “Carrier”, for the purpose of LINEWAYBILL 2016, means the one on whose behalf the document has been signed.

Clause 2 - Carrier’s Tariff

This Clause incorporates the terms of the carrier’s tariff to the extent that they are not inconsistent with the terms and conditions of LINEWAYBILL 2016.

Clause 3 - Law and Jurisdiction

To avoid a number of potentially impractical jurisdictions becoming involved in a particular case, this Clause simply provides that disputes arising under LINEWAYBILL 2016 shall be determined at the place where the carrier has its principal place of business.

It should be observed, however, that some jurisdictions by law do not recognise limitations in the claimant’s right to instigate court proceedings against the carrier at other places than where the carrier has its principal place of business.

Clause 4 - Methods and Routes of Transportation

In accordance with applicable background law for carriers engaged in liner service, this Clause merely sets out the rights of the carrier to perform the transport in a reasonable manner using any reasonable means, methods and routes.

Clause 5 - Stowage

In sub-clause (a) the words “or similar articles of transport used to consolidate goods” accommodate possible future technical innovations in the methods of consolidating goods.
Sub-clause (b) provides the carrier with an express right to carry containers, trailers and transportable tanks on deck without having to specifically clause LINEWAYBILL 2016, in which case the usual bill of lading liabilities will apply.

Clause 6 - Hindrances, etc. affecting Performance

Sub-clause (a) sets the general standard, providing that the carrier has to use reasonable endeavours to complete the performance of the contract as evidenced by LINEWAYBILL 2016. What is reasonable has to be decided by reference to the facts of each individual case.

Where the merchant has not taken delivery of the goods within the time designated by the carrier, the carrier shall be entitled to put the goods in safe custody on behalf of the merchant at the latter’s expense and, if not taken delivery of, to sell the same privately or by auction within 14 days.

A number of contracts in the liner industry provide the carrier with a right to sell the goods within a reasonable time after the merchant should have taken delivery of such goods which, in practical terms, means within a period of 7 to 28 days depending on the value of the goods and the storage costs involved.

However, to avoid potential disputes as to what constitutes a reasonable time, a specific time limit of 14 days is provided in LINEWAYBILL 2016.

Clause 7 - Lighterage

This Clause is self-explanatory.

Clause 8 - Loading, Discharging and Delivery

This Clause is self-explanatory.

Clause 9 - Optional Ports of Discharge

This Clause is self-explanatory.

Clause 10 - Liability for carriage between Port of Loading and Port of Discharge

This is the BIMCO General Clause Paramount. The Clause takes into account that the Hague-Visby Rules shall be the recognised liability regime covering the particular contract of carriage.

The Paramount Clause has the following main components:

1. The Hague-Visby Rules as enacted in the country of shipment shall apply to the contract of carriage. If no such enactment is in place the corresponding legislation of the country of destination shall apply.
2. However, in those trades where the Hague-Visby Rules are not applicable mandatorily or otherwise, the Hague Rules (when compulsorily applicable in the country of shipment or destination) shall apply.
3. In all other trades, i.e. where neither the Hague-Visby Rules nor the Hague Rules apply compulsorily, the terms of the Hague-Visby Rules shall apply.
4. The SDR Protocol 1979 which replaces the old limitation amount of FFR 10,000 per package or unit, or FFR 30 per kilo as provided in the Hague-Visby Rules by 666.67 SDR’s per package or 2 SDR’s per kilo shall apply to the contract of carriage to the extent possible.

Since LINEWAYBILL 2016 is based on the Hague-Visby Rules which is a globally accepted liability regime for carriage of goods by sea, there is no specific need for the carrier to make prior consultation with the relevant P&I Club to obtain its prior approval that cover will be provided when contracting on LINEWAYBILL 2016.

Clause 11 - Liability for Pre- and On-Carriage

This Clause sets out in clear terms what applies in a number of through transport arrangements, i.e. that the carrier acts as a principal only when it has control over the goods, whereas it acts as agent for the shippers when entering into contracts with other carriers for the pre- and on carriage.

Further, where the carrier is only acting as an agent to the shipper, no liability will be assumed by the carrier for the pre-shipment and on-carriage. This is consistent with what is provided in the CONLINEBILL.

Clause 12 - Amount of Compensation

Clause 12 deals with the valuation of the goods, the amount of compensation, and the rules regarding limitation of liability.

Sub-clauses (a) and (b) largely mirror the provisions of the Hague-Visby Rules Art. IV 5 (b) except that sub-clause (a) provides that the compensation shall be calculated by reference to the value of the goods at the place and time they are delivered to the merchant. This corresponds to the fact that the place of delivery may be the actual Port of Discharge as set out on the face of LINEWAYBILL 2016 or the place of delivery by the on-carrier.

As regards the amount of compensation a reference is made in sub-clause (c) to Clause 10 (Liability for carriage between Port of Loading and Port of Discharge). Although Clause 10 does not set out a specific limitation amount it does give effect to the Protocol signed at Brussels on 21 December 1979 (“The SDR Protocol 1979”) where possible. Therefore, the limitation amount that the carrier will be able to adhere to, unless it has agreed to a higher compensation, will be 666.67 SDRs per package or 2 SDR’s per kilo.

Clause 13 - Delay, Consequential Loss, etc.

Liability for delay is not expressly referred to in the Hague-Visby Rules and therefore some jurisdictions, although applying the Hague-Visby Rules, may impose upon the owners’ liability for delay. Sub-clause (e) ensures that, in those circumstances, the Carrier shall also have a right to limit such liability.

Clause 14 - Defences and Limits for the Carrier, Servants, etc.

Sub-clause (b) makes it clear that the Carrier shall not be able to limit its liability in those circumstances when loss or damage has been caused by its personal act or omission done with the intent to cause such loss or damage or recklessly and with knowledge that loss or damage would probably result.

Clause 15 – International Group of P&I Clubs/BIMCO Himalaya Clause for bills of lading and other contracts 2014

The Clause is intended where possible to wholly exempt a contractual carrier’s or other contracting party’s servants, agents or subcontractors from liability under a contract (subject always to any relevant court construing the Clause in such a way as to grant that total exemption) and/or to confer on such servants, agents and subcontractors all the rights, limits, defences and exemptions from liability enjoyed by the contractual carrier under that contract. 

It imposes on the other party to the contract, defined in the Clause as the “Merchant” (which term includes a shipper, consignee or holder of a bill of lading) an obligation not to sue any servant, agent or subcontractor of the contractual carrier, and to indemnify the contractual carrier in the event that the Merchant makes a claim, whether under the contract or in tort, bailment or otherwise, against the servants, agents or subcontractors of the contractual carrier employed in performing the contract.  

The Clause is designed to operate as effectively as possible for the protection of its intended beneficiaries, by providing that the contractual carrier or other contracting party acts as an agent or trustee for its servants, agents or subcontractors in relation to the contract, and that such servants, agents or subcontractors are deemed to be a party to such contract.

It provides protection in respect of operations related to the carriage of goods but which are not necessarily carried out on board a ship, for example operations which take place before loading or after discharge from a vessel or operations involved in multi-modal carriage.

Clause 16 - Carrier’s Responsibility

This Clause provides for the rules of prima facie evidence of the receipt of the goods in line with Art. III 3 of the Hague-Visby Rules.

Clause 17 - Shipper’s Responsibility

The wording of this Clause corresponds with other documents used in the liner trade and emphasizes the importance of the shipper providing accurate details of the goods to the carrier at the time such goods are to be taken in charge by the carrier. This is achieved by making the shipper liable under the principle that it is deemed to have guaranteed to the carrier the accuracy of all information given with respect to the goods and, in particular, their dangerous character.

The shipper’s duty to indemnify the carrier against loss resulting from wrong information in these respects is not limited to cases where inaccurate information is given, but also applies when the information is inadequate. The fact that the carrier may proceed against the shipper does not in any way prevent the carrier from holding other persons liable as well, for instance, under the principle that anyone who tenders goods of a dangerous nature to the carrier under the applicable law could become liable in tort.

Clause 18 - Shipper-packed Containers, etc.

This Clause provides the basis of liability as regards FCL packed containers. In line with common practice, the carrier accepts no responsibility for loss or damage caused by the negligent filling, packing or stowage of the container or caused as a result of the contents being unsuitable for carriage in containers.

In accordance with general practice in the container trade, it will be seen that the Clause also excludes liability on the part of the carrier for loss or damage due to the unsuitability or defective condition of the reefer equipment or trailers supplied by the merchant.

Clause 19 - Dangerous Goods

This Clause sets out in clear terms that the shipper shall comply with mandatory national law or international conventions as regards shipment of goods of a dangerous nature.

In accordance with the Hague-Visby Rules Art. IV 6, the Clause provides the carrier with various remedies to dispose of the dangerous goods in the event the consignor fails to provide the necessary information on such goods and of which the carrier is unaware. In addition, the consignor shall be liable for and hold harmless the carrier for all loss, damage, delay or expenses that may arise from the carriage of dangerous goods.

Clause 20 - Return of Containers

This Clause, which is to be found in a number of private forms of bills of lading or multimodal transport documents, is meant to take into account the increasing problem of containers, pallets or similar articles of transport received by the consignor or consignee for packing and unpacking not being returned to the carrier in the same good order and condition as when handed over or which may not be redelivered at all. The Clause operates as follows:

Sub-clause (b) sets out the basic responsibilities of the consignor and the consignee to redeliver within the time prescribed in the carrier’s tariff, containers, pallets or similar articles of transport to the carrier in a clean state and in the same good order and condition as when received, normal wear and tear excepted.

Sub-clause (c)(i) deals with the loading side of the transport, i.e. the consignor’s liabilities as a result of its non-compliance with the basic responsibilities under (b). As will be seen, the Clause seeks to extend the coverage of the contract of carriage as regards the consignor’s responsibilities for containers, pallets or similar articles of transport during the period between handing over to the consignor and the return to the carrier of such articles, which would otherwise not be covered by the contract of carriage.

Sub-clause (c)(ii) deals with the discharging end of the transport, i.e. the consignee’s liabilities as a result of its non-compliance with the responsibilities under (b). It should be noted, however, that there may be no legal basis to extend the coverage of the contract of carriage to a third party, such as the consignee, who has no contractual link with the carrier. Therefore, since it may prove to be difficult, at least in some jurisdictions, to hold the consignee responsible, not being a party to the contract of carriage, sub-clause (ii) holds the consignor and the consignee jointly and severally liable for non-compliance with the provisions of (b).

Clause 21 - Freight and Charges

This is a traditional clause which provides the carrier with a right, without consulting the merchant, to inspect the contents of containers, trailers or similar articles of transport for the sole purpose of verifying the freight basis.

Clause 22 - Lien

This Clause is self-explanatory.

Clause 23 - General Average

As will be seen and in accordance with other general average clauses, general average shall be adjusted at any port or place determined by the carrier in accordance with the York-Antwerp Rules 2016.

Clause 24 - Both-to Blame Collision Clause

This is a standard clause forming part of almost every standard document issued by BIMCO.

Clause 25 - U.S. Trade

This Clause provides for the application of the U.S. Carriage of Goods by Sea Act, 1936 throughout the carriage by sea and the time that the goods are in the actual custody of the Carrier or of any sub-contractor whose services it makes use of in order to perform the transport. The Clause further makes it clear that in the event the U.S. COGSA applies, the carrier shall in no event become liable for loss of or damage to the goods in an amount exceeding the statutory limits, i.e. USD 500 per package or customary freight unit.

Copyright

Copyright in LINEWAYBILL 2016 Liner Sea Waybill is held by BIMCO.