Responsibilities of the Carrier in Relation to Loading Operations for the Carriage of Goods By Sea #1
Carriage of Goods by Sea
Table of Contents
- A) GENERAL INTRODUCTION
a.1.) Who is the carrier under the Turkish Commercial Act?
a.2.) Who is the carrier under the Hamburg and the Hague – Visby Rules ?
a.3.) Contract of affreightment
a.3.1.) A brief information about Charterparties and Kirkambar
1. B) LoadIng OperatIon Performed by the CarrIer for the CarrIage of Goods by Sea
b.1.) Responsibilities of the shipper in relation to loading
b.2.) Responsibilities of the carrier in relation to loading
b.2.1.) Responsibilities of the carrier before loading
b.2.1.1.) Seaworthiness
b.2.1.2.) Nature of the obligation
b.2.2.) Laytime
b.2.2.1.) Calculation of laytime
b.2.3.) Responsibilities of the carrier “At” loading
b.2.3.1.) Properly and carefully
b.2.3.2.) From and to a fit place
b.2.3.3.) Responsibilities of the carrier under the contract of carriage with FIO(S) clause
1. C) COMPLETION OF LOADING AND CONCLUSION
RESPONSIBILITIES OF THE CARRIER
IN RELATION TO LOADING OPERATIONS
FOR THE CARRIAGE OF GOODS BY SEA
1. A) GENERAL INTRODUCTION
a.1.) Who is the carrier under the Turkish Commercial Act?
The fourth book of the Turkish Commercial Act [1] ( TTK ) is dedicated to maritime law.
In Turkish maritime law, the concepts of ‘owner’ and ‘carrier’ differ from each other. If the owner undertakes to carry, and the bill of lading is issued in the name of the owner, this party will be the carrier.
If the bill of lading is issued in the name of the charterer, the carrier will be the charterer. In this context, bill of lading is the essential document to figure out who the carrier and/or shipper is. Because, bill of lading is a kind of document which evidences a contract of carriage by sea and taking over or loading of the goods by the carrier, and by which the carrier undertakes to deliver the goods against surrender of the document. A provision in the document that the goods are to be delivered to the order of a named person, or to order, or the bearer, constitutes such an undertaking.
a.2.) Who is the carrier under the Hamburg and the Hague – Visby Rules ?
The official title of the Hague Rules is International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading, signed at Brussels, August 25, 1924 and in force as of June 2, 1931, better known as the “Hague Rules”. [2]
Although the Convention was adopted in Brussels in 1924, it was based on an earlier draft adopted by the International Law Association at the Hague in 1921 (the “Hague Rules of 1921”), as amended at a diplomatic conference held in Brussels in 1922 (a text known as the “Hague Rules of 1922”), and at meetings of a subcommission of that conference in Brussels in 1923.
For this reason, while the final 1924 Convention is generally referred to in French as the “Convention de Bruxelles”, it is generally called the “Hague Rules” or the “Hague Rules 1924” in English.
As it mentioned above the Hague Rules were adopted in 1924, the Hague/Visby Rules in 1968[3] and 1979[4] and the Hamburg Rules in 1978[5].
After giving historical backrounds of the rules and before considering the responsibilities of the carrier, it is also essential to establish the identity of the carrier under the Hamburg[6] and the Hague – Visby Rules[7].
Under article 1 (1) of Hamburg Rules of 1978, carrier is defined as; “ Any person by whom or in whose name a contract of carriage of goods by sea has been concluded with a shipper.”
Under article 1 (a) of Hague – Visby Rules of 1979, carrier is defined as the owner or charterer who enters into contract of carriage with the shipper.[8]
a.3.) Contract of affreightment
Contract of affreightment is defined under article 1016 of Turkish Commercial Act. According to article; a shipowner, either directly or through an agent, undertakes to carry goods by sea, or to provide a vessel for that purpose, the arrangement is known as a contract of affreightment.
Such contracts may take a variety of forms although the traditional division is between those embodied in charter parties and those evidenced by bill of lading.[9]
Where the shipowner agrees to make available the entire carrying capacity of his vessel[10] for either a particular voyage[11] or a specified period of time[12], the arrangement normally takes the form of a charterparty.
a.3.1.) A brief information about Charterparties and Kirkambar
Charter contracts are contracts of affreightment. In charter contracts, the shipowner undertakes to carry the goods and therefore becomes the carrier. In charter contracts the carrier does not let the ship or does not place the ship to the disposal of the other party, but simply undertakes to carry the goods.
Charter Party and Kırkambar are defined under article 1016 of the Turkish Commercial Act. According to this article, in Kirkambar, you don’t see the master, the shipowner, and even the ship. Because, there is an agent, and the owner of the goods or someone else who is entitled to do that, sends the goods to the agent or the agent wants you to bring the goods to the port or his office at a fixed time. Because, your goods are not as much as the charterer’s goods. “ For instance; You have 1000 kg bananas. ”[13]
As it mentioned above, there are, as typical models, four types of charter contracts:
- Time charter : The carrier undertakes to carry the goods of the charterer for a specified period of time. Under a time charter, the owner retains the management and control of the vessel, but the charterer designates the ports of call and the cargo carried. The vessel owner provides the crew, equips and maintains the vessel, makes repairs, and pays for normal operating expenses related to, and the damages generated by his functions.[14] The parties may agree that the length of the time charter will be measured by the duration of one or more voyages.
- Voyage charter : The carrier undertakes to carry the goods of the charterer for a specified number of voyages. Under the voyage charter the owner provides a ship, master and crew, and places them at the disposal of the charterer for the carriage of cargo to a designated port. The voyage charter may lease all of the vessel for a voyage or series of voyages, or he may lease only a part of the vessel.
- Full charter : The complete cargo carrying capacity of the ship is reserved for the goods of the charterer.
- Partial charter : Only part of the cargo carrying capacity of the ship is reserved for the goods of the charterer. On the other hand, “Demise Charter” – “Bare-Boat Charter” are contracts to let/hire/lease of the ship and the ship owner does not undertake to carry, but simply undertakes to put the ship at the disposal of the charterer. The essence of the demise charter is that the owner surrenders possesion and control of the vessel to the charterer, who then succeeds to many of the rights and obligations of the owner[15]. In many demise charters, the charterer also obtains the services of the owner’s master and crews, who become employees of the charterer during the term of the charter. In other cases, the owner furnishes a vessel without master or crew; this type of demise is called bareboat charter.
For a better understanding, the following provisions would be useful for showing the characteristics of charterparty.
- The shipowner agrees to provide a ship.
1.As to the preliminary voyage to the port of loading, the shipowner promises that the ship shall proceed with reasonable despatch.
- The shipowner makes sure that the ship is ready for the trip[16].
1. The charterer agrees to pay freight.
- The shipowner undertakes to carry the goods and therefore becomes the carrier.
1.Provisions of charter party regulating the manner of loading and discharge, and especially the time to be allowed for these operations, and rate of demurrage.
1.B) LoadIng OperatIon Performed by the CarrIer for the CarrIage of Goods by Sea
b.1.) Responsibilities of the shipper in relation to loading
To understand the loading operation performed by the carrier, it should be better to know the responsibilities of the shipper as loading operations.
The basic obligation of the shipper is to deliver the goods to the carrier in accordance with the contract of carriage, i.e. the goods as agreed and at the agreed place and time.
Further, the goods must be brought by the shipper in the proper condition for the intended voyage, e.g. packing must be sound, dangerous goods must be properly marked and labelled, temperature controlled goods must be delivered at the right temperature for carriage, etc.
The shipper shall provide to the carrier the information, instructions, and documents that are reasonably necessary for:
- the handling and carriage of the goods, including precautions to be taken by the carrier or a performing party;
1. compliance with rules, regulations, and other requirements of authorities in connection with the intended carriage, including filings, applications, and licences relating to the goods.
The shipper is liable to the carrier for any loss, damage, or injury caused by the goods, unless the shipper proves that such loss or damage was caused by events or through circumstances that a diligent shipper could not avoid or the consequences of which a diligent shipper was unable to prevent.
Whether certain goods are dangerous depends on the circumstances. Harmless goods may become dangerous under certain circumstances and dangerous goods (in the sense of poisonous or explosive) may be harmless when they are properly packed, handled and carried in an appropriate vessel.
The liability regime should be that the risk of any damage attributable to the nature of the cargo should be on the shipper and any damage caused by improper handling or carriage should fall under the rules for the carrier’s liability.
Another matter is how to deal with goods that may become a danger to human life, property or the environment during the voyage. It may be considered that a master (or another person actually responsible for the goods) must have a wide discretion to deal with such goods under the circumstances without regard to liabilities.
In the Hague-Visby Rules there are two specific and one general provisions on the obligations and liabilities of the shipper. The two specific provisions relate to the obligation of an indemnity in favour of the carrier for any loss, damage or expense arising from the inaccuracy of the description of the goods (article 3(5))[17] and from the carriage of dangerous goods to the shipment of which the carrier has not consented with the knowledge of their nature (article 4(6))[18].
The general provision is to the effect that the shipper is responsible for loss or damage sustained by the carrier only if caused by his fault or the fault of his servants or agents (article 4(3))[19]. The Hamburg Rules contain similar provisions (articles 12 and 13)[20].
Rules based on the philosophy that payment of freight is not the only obligation of the shipper, but that the contract of carriage requires for its satisfactory performance the cooperation between all the parties in all its stages.
Under the Hague-Visby Rules and, under the Hamburg Rules, the liability of the shipper linked to the nature of the dangerous goods is fault liability, whether or not the goods may be qualified as dangerous goods, but the basis is fault.
Under article 1023 of the Turkish Commercial Act, the shipper has to provide to the carrier all the information, instructions and documents reasonably necessary for the handling and carriage of the goods. Otherwise the shipper will be liable to the carrier if any damages or loss occure because of wrong information.
b.2.) Responsibilities of the carrier in relation to loading
Carrier’s responsibilities under the Turkish Commercial Act are grouped under two headings:
- Responsibility arising from any loss or damage to cargo because of lack of diligence
- Any responsibility stemming from losses resulting from unseaworthiness at the beginning of the voyage
The liability of the carrier arising from any loss or damage to cargo is governed under compulsory provisions in parallel with the Hague Rules. There is only one difference. The first two provisions of Article IV.2 of the Hague Rules are covered by the article 1062 of the Turkish Commercial Act under the heading of “absolute non-liability”[21], whereas the remaining paragraphs except (q) are governed under the article 1063 of the Turkish Commercial Act under ” potential cases of non-liability “.
According to the principle of absolute non-liability, the existence of cases specified therein completely relieves the carrier from liability. However, unlike the Hague Rules, according to the article 1063, cargo interests are able to hold the carrier liable if they can prove that the reason for the loss or damage to the goods was the unseaworthiness of the vessel, or that the carrier had breached its duty to act diligently[22].
Under article 3 of the Brussels Convention[23] dated 25 August 1924, which was also the source of the Turkish Commercial Act for the section of contract of affreightment, we see the same provisions about the responsibility of the carrier.
According to the article 3 of the convention, the carrier shall be bound before and at the beginning of the voyage to exercise due diligence to:
(a) Make the ship seaworthy.
(b) Properly man, equip and supply the ship.
(c) Make the holds, refrigerating and cool chambers, and all other parts of the ship in which goods are carried, fit and safe for their reception, carriage and preservation.
Besides that, the carrier shall properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried.
b.2.1.) Responsibilities of the carrier before loading
b.2.1.1.) Seaworthiness
In every contract of affreightment there is an implied obligation to provide a seaworthy vessel. Therefore, the vessel should be “ tight, staunch, strong and in every way fitted for the service ”. The obligation covers not only the physical state of the vessel but also the competence and adequacy of the crew, the sufficiency of fuel and other supplies, and the facilities necessary and appropriate for the carriage of the cargo.
Seaworthiness is defined in the articles 817 and 1019 of Turkish Commercial Act. According to the articles, the ship has to be seaworthy, cargoworthy and also tripworthy. The competence of the crew, the fuel and adequacy of stores are very important to show whether the ship is tripworthy or not.
b.2.1.2.) Nature of the obligation
The owner has to provide a seaworthy ship, otherwise he will be liable. It amounts to an undertaking not merely that they should do their best to make the ship fit, but that the ship should really be fit.
The owner is under the duty of furnishing a ship and equipment not only reasonably, but completly, in all respects suitable for the intended use or service. So, the standart required will be variable depending on the nature of the voyage.
Where the contract of affreightment is governed by the Hague[24] or Hague-Visby[25] Rules, the absolute obligation is replaced by a duty to exercise due diligence to make the ship seaworthy[26].
Accordingly, while the carrier will no longer be strictly liable in absence of any fault, he will be liable not only for his own negligence but also for the negligence of any party, even including an independent contractor, to whom he has delegated responsible for making the vessel seaworthy.
So far as the first aspect of the seaworthiness concept is concerned, the implied undertaking covers not only the physical condition of the vessel and its equipment, but also extends to the competence of the crew and adequacy of stores and documentation.[27] Thus, a vessel will clearly be unseaworthy where it has a defective compass, or where deck cargo is stowed in such a way as to render the vessel unstable.
The other aspect of the seaworthiness is related to the cargoworthiness of the vessel. The shipowner is under the obligation to ensure that the ship is in a fit state to receive the contractual cargo.
This requirement would not be satisfied where the vessel’s holds needed fumigating or cleaning before being in a fit state to receive cargo, where frozen meat was to be shipped and there was a defect in the vessel’s refrigeration plant, or where the pumps were inadequate to drain surplus water from the cargo.
In each case the implied undertaking as to cargoworthiness is to operative as from the commencement of loading. The warranty is that, at the time the goods are put on board, she is fit to receive them and encounter the ordinary perils that are likely to arise during the loading stage; but there is no continuing warranty after the goods are once on board that the ship shall continue fit to hold the goods during that stage and until she is ready to go to sea, notwithstanding any accident that may happen to her in the meantime.
In one case[28], after cargo had been safely loaded, the ship’s engineer opened a sluice door a watertight bulkhead and on closing it, failed to secure it properly with the result that water percolated through and damaged the plaintiff’s cargo. It was held that, since the detective closure of the sluice door occured after the cargo had been loaded, it did not constitute a breach of the cargoworthiness undertaking.[29]
As it mentioned before, it is the shipowner’s duty to send the ship to the agreed, or, in the absence of special agreement, to the usual place of loading. He must give a notice to the charterer that the ship is ready to load. If he fails to do so, and delay in commencing to load is thereby caused, the charterer will not be responsible, as he is not bound to look out for the ship.
If the place named for loading be simply a port or a dock, notice may be given as soon as the ship arrives at the port or dock although she is not in the particular spot where the loading port is to take place; but this can not be done when the place is more particularly indicated.
Apart from custom or express agreement, the cargo-owner must bring the goods to the place where the ship is lying. Moreover, such matters as strikes, ice, and so on, though they may be individually named in the charter party as exceptions, will afford no execuse to the charterer if he was prevented from bringing the cargo down to the ship by one or more of them. He will only be protected if the actual loading is interfered with. If the loading was rendered commercially impossible by an excepted peril, the charterer will be excused, even though it was not absolutely impossible to load.
As a rule the operations of loading is the duty of the carrier as it stated above but it may become the duty of the charterer, if the parties agree on FIO / FIOS terms.
Charterer do not only relieve the shipowner’s duty of loading and stowing, but also relieve them from the liability for bad stowage, except as qualified by the words ‘under the supervision of the captain’. It gives the master of the ship a right to supervise the operation of the charterers in loading and stowing.
Under article 975 of the Turkish Commercial Act, we see the same responsibility, which is supervising the charterer while he is performing the loading operations, of the master of the ship.
The charter party does not as a rule contain provisions as to how the cargo is to be procured. It presupposes that the charterer has the cargo in readiness on the quay. At some ports, however, there is no storing accommondation, and goods have to be brought from storing places at some distance from actual place of loading.
“ Where the shipowner himself undertakes to procure a cargo, he is under the same strict liability as usually falls on the charterer. Thus, “the shipowner agreed to proceed to Ichaboe and there find and load a full cargo of guano. There was no guano to be found there within a reasonable time after the ship’s arrival. Held, the shipowner was none the less liable to the charterer. ”[30]
Nevertheless one rule is clear: the carrier in every case must load from, and whilst in, as a safe and convenient place as possible. He must also give the shipper proper notice and sufficient time to deliver the goods to the place of loading.
b.2.2.) Laytime
The period of time within the loading and discharging operation is required to be completed will be prescribed in the charter party and is known as laytime. If such period exceeded, the charterer will have to pay compensation to the shipowner in the form of demurrage ( art. 1035 of the Turkish Commercial Act ) or damages for detention.
b.2.2.1.) Calculation of laytime
The period of laytime may be stipulated in the charter party either as a specific number of days or hours or in relation to a fixed rate of loading or discharge.
Occasionally, the charterer undertakes to load his cargo with “customary dispatch” or “as fast as the ship can receive”.
Where laytime is expressed as a certain number of “days” or “running days” this is construed by the courts as meaning consecutive periods of 24 hours running without interruption except in the case where specific days are excluded , e.g. “Sundays and holidays excepted”.
In the absence of any such excepted periods, time would run continuously through Sundays, holidays and other periods such as Saturday afternoons, during which it was not customary to work in port. Traditionally such periods of 24 hours were regarded as calendar days running from midnight, but under modern forms of charter party they will be treated as artificial or conventional days of 24 hours starting from the time when the notice of readiness to load expires[31].
An alternative method of describing laytime is in the form of “working days”. A working day is a day on which work is ordinarily done in the particular port, excluding Sundays and holidays (Fridays in Islamic countries).
The number of hours in a particular working day on which a ship is required to load will depend on the custom of the port, and Saturday will normally count as a whole day although it may not be customary to work in the afternoon.
The phrase “weather working day” is a further refinement, excluding from the calculation of laytime those working days on which loading would have been prevented by bad weather, had any loading been envisaged at that time.
The term “weather” is widely construed by the courts and has been held to cover not only rain and gales but also accumulations of ice which prevented loading. On the other hand, the weather must affect the loading process and not merely the safety of the vessel, with the result that the mere threat of bad weather, which resulted in a ship being ordered from the berth by the harbor master, did not prevent the period in question from counting as weather working days.[32]
Under Turkish Commercial Act, there are “Starya” and “Sürastarya”. “Starya” period is a period of time which has to be used by the carrier for loading operations. But, “Sürastarya” period is a period of time which commences after the Starya period unless otherwise agreed by the parties of the contract of carriage.
Under article 1030 of Turkish Commercial Act, the master of the ship has to notify the shipper that the ship is ready for loading. One day after from this notification made by master to the shipper, Starya period commences. After Starya period, as it is stated above, there is Sürastarya period which the carrier has to wait for according to article 1030/3 of Turkish Commercial Act, if it is agreed by the parties of the contract of carriage. Otherwise, the commencement of Sürastarya period is determined according to article 1032 of the Turkish Commercial Act.
The main difference between “Starya” and “Sürastarya” is that under article 1036/1 of Turkish Commercial Act, Starya period is counted only for working days, i.e. Sundays and other national and religious holidays excepted. But, “Sürastarya” includes Sundays and other holidays. Additionally “Starya” is free of charge, but “Sürastarya” is subjected to payment according to articles 1030 and 1035 of Turkish Commercial Act.
Under article 1036 of Turkish Commercial Act., we see the notion of “working days” for Starya period. According to the article, for the calculation of laytime, we have to take into regard the notion of working days which is also defined under articles 46 and 63 of Turkish Labor Code[33]. Under article 46 of the Turkish Labor Code, a labor has a right for taking one day ( 24 hours ) off which is not going to be counted and not taken into regard for the calculation of laytime.
Finally, under article 1033 of Turkish Commercial Act, if the parties of the contract of carriage are agreed on Starya or Sürastarya period, the carrier doesn’t have to wait anymore for loading after Sürastarya period is completed. But, the important point is that the carrier of the goods has to notify the shipper 3 calender days before Starya or Sürastarya period is completed that he doesn’t want to wait anymore. This notification has to be done in accordance with article 1034 of Turkish Commercial Act.
b.2.3.) Responsibilities of the carrier “At” loading
b.2.3.1.) Properly and carefully
The obligation to load is being qualified by the words “properly and carefully”[34]. Due diligence, however, only appears in the Hague and Hague/Visby Rules at art. 3(1)[35] and art. 4(1)[36], i.e. due diligence to make the ship seaworthy, and at art. 4(2)(p), “latent defects not discoverable by due diligence”. The obligation to load at art. 3(2) is not qualified by the words “due diligence” but by the words “properly and carefully”.
Although proper and careful loading are not expressly mentioned in the Hamburg Rules, the carrier’s general duty under art. 5(1)[37] of taking all measures that are reasonably required to avoid the occurrence and its consequences, certainly comprises a duty of careful and proper loading. The obligation applies “port to port”, in virtue of art. 4 of the Hamburg Rules as following.
Article 4
Period of responsibility
- The responsibility of the carrier for the goods under this Convention covers the period during which the carrier is in charge of the goods at the port of loading, during the carriage and at the port of discharge.
- For the purpose of paragraph 1 of this article, the carrier is deemed to be in charge of the goods
(a) from the time he has taken over the goods from:
(i) the shipper, or a person acting on his behalf; or
(ii) an authority or other third party to whom, pursuant to law or regulations applicable at the port of loading, the goods must be handed over for shipment;
(b) until the time he has delivered the goods:
(i) by handing over the goods to the consignee; or
(ii) in cases where the consignee does not receive the goods from the carrier, by placing them at the disposal of the consignee in accordance with the contract or with the law or with the usage of the particular trade, applicable at the port of discharge; or
(iii) by handing over the goods to an authority or other third party to whom, pursuant to law or regulations applicable at the port of discharge, the goods must be handed over.
- In paragraphs 1 and 2 of this article, reference to the carrier or to the consignee means, in addition to the carrier or the consignee, the servants or agents, respectively of the carrier or the consignee.
b.2.3.2.) From and to a fit place
The carrier, when loading properly and carefully, must not only load from a safe place but also to “a fit and safe” place, as is stated in art. 3(1)(c) of the Hague and Hague/Visby Rules.
Under Turkish Law, the carrier of the goods has to load and stow the cargo properly and carefully under article 1061 of the Turkish Commercial Act. According to this article, the carrier has to exercise “due diligence”[38]. Thus, the carrier will liable for any loss and damage if he does not take all measures that could be reasonably required.[39]
Under the Turkish Commercial Act, the carrier may defence himself as the loss or damage is made by the acts or omissions of the shipper who has actually supervised the stevedore’s work (e.g. in choosing an incompetent stevedore or not controlling the latter’s operations properly); or the harm is not the result of the carrier’s actual fault or the actual fault or neglect of any of its servants or agents. Failing such proof, the carrier is going to be held liable for the loss or damage.
The carrier is responsible, absent any special provision or circumstance, for loading the cargo, but is not responsible if the shipper loads and, whilst loading, damages his own cargo. Nevertheless, the carrier is responsible to third parties (notwithstanding his recourse against the shipper) if a shipper, while loading his own goods, damages other cargo.
Ofcourse, a bill of lading clause which merely states that the loading is done for the shipper by the carrier as the shipper’s agent would be invalid as a non-responsibility clause. For the shipper to be responsible for loading, he, his agent, or someone he employs must have actually done the loading.
Under the Brussels Convention of 1924, the carrier, after receiving the goods into his charge and on demand of the shipper, shall issue to the shipper a bill of lading showing among other things:
(a) The leading marks necessary for identification of the goods as the same are furnished in writing by the shipper before the loading of such goods starts, provided such marks are stamped or otherwise shown clearly upon the goods if uncovered, or on the cases or coverings in which such goods are contained, in such a manner as should ordinarily remain legible until the end of the voyage.
(b) Either the number of packages or pieces, or the quantity, or weight, as the case may be, as furnished in writing by the shipper.
(c) The apparent order and condition of the goods.
Provided that no carrier, master or agent of the carrier shall be bound to state or show in the bill of lading any marks, number, quantity, or weight which he has reasonable ground for suspecting not accurately to represent the goods actually received, or which he has had no reasonable means of checking.
The shipper shall be deemed to have guaranteed to the carrier the accuracy at the time of shipment of the marks, number, quantity and weight, as furnished by him, and the shipper shall indemnity the carrier against all loss, damages and expenses arising or resulting from inaccuracies in such particulars. The right of the carrier to such indemnity shall in no way limit his responsibility and liability under the contract of carriage to any person other than the shipper.
Unless notice of loss or damage and the general nature of such loss or damage be given in writing to the carrier or his agent at the port of discharge before or at the time of the removal of the goods into the custody of the person entitled to delivery thereof under the contract of carriage, or, if the loss or damage be not apparent, within three days, such removal shall be prima facie evidence of the delivery by the carrier of the goods as described in the bill of lading.
If the loss or damage is not apparent, the notice must be given within three days of the delivery of the goods.
The notice in writing need not be given if the state of the goods has, at the time of their receipt, been the subject of joint survey or inspection.
In any event the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered.
In the case of any actual or apprehended loss or damage the carrier and the receiver shall give all reasonable facilities to each other for inspecting and tallying the goods.
b.2.3.3.) Responsibilities of the carrier under the contract of carriage with FIO(S) clause
The expression “FIO(S)” is commonly found in shipping documents. The meaning of FIO(S) ( free in and out (stowed) ) is that the cargo owner, shipper or charterer is to bear the cost to the shipowner of loading, stowing and discharging the cargo, including that part of those operations which take place on board ship[40].
FIO(S) clause may be relevant to the question at what moment the carrier’s responsibility for the goods commences but this is very much dependent on the wording of the particular clause. Such terms standing alone normally deal only with which party is to bear the relevant costs and in such a case they do not define the scope of the contract of carriage or the moment of delivery to the carrier.[41]
If the FIO(S) clause goes further and places the whole responsibility and risk of the loading and stowage operation on the shipper it is possible that the stevedores who perform those operations may be treated as the shipper’s agents; if so, delivery to the carrier would be held to occur when the stevedores place the cargo in the ship’s holds.[42]
Under a particular clause the carrier undertakes the whole responsibility and risk of loading the cargo (both before and after ship’s rail) it will be clear that delivery to the shipowner takes place no later than the stage when the goods are taken up by the stevedores at the commencement of loading.
As it mentioned above, the basic rule is that it is the obligation of the carrier to load, stowe and discharge the cargo. But, exceptionally the shipper may take over this obligation if the parties agree on FIO / FIOS clauses.
1. C) COMPLETION OF LOADING AND CONCLUSION
As it has seen above, carrier is entitled to use the period of loading time in the way which suits him the best and, provided that the agreed period is not exceeded, the shipowner is not entitled to complain that the cargo could have been loaded in a shorter time.
The method of loading and discharging the ship is entirely a matter for the carrier to decide. Besides that the carrier has to perform due diligence and also load the goods carefully and properly from/to a fit and safe place.
Finally it must be that the loading stage is not completed until the cargo is on the board of the vessel and also stowed. Although the stowage of the cargo is normally the responsibility of the shipowner and the cost is usually met by him, it is nevertheless regarded as part of the loading operation and the charterer is under an obligation to bring the cargo alongside the vessel in sufficient time to enable the shipowner to complete the stowage within the lay days.
After the goods are loaded, the bill of lading has to be issued by the carrier, the master, or the agent of the carrier, to the shipper.
[1] Turkish Commercial Act, numbered 6762, dated 29/06/1956, entered into force on 09/07/1956.
[2] Turkey is a party to this Convention as of 4th January 1956.
[3] The term “Hague/Visby Rules 1968” refers to the Hague Rules 1924, as amended by the “Protocol to Amend the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading”, adopted at Brussels, February 23, 1968”, which Protocol entered into force June 23, 1977
[4] The Hague Rules 1924, as amended by the Visby Protocol of 1968, were further amended by the “Protocol Amending the International Convention for the Unification of Certain Rules of Law Relating to Bills of lading (August 25, 1924, as Amended by the Protocol of February 23, 1968), adopted at Brussels, December 21, 1979, which Protocol came into force on February 14, 1984. The 1979 Protocol changed the basic unit of account of the Hague/Visby Rules 1968 from poincaré gold francs to Special Drawing Rights (“S.D.R.’s”) of the International Monetary Fund (I.M.F.). For this reason, the 1979 Protocol is sometimes called the “Visby S.D.R. Protocol”.
[5] United Nations Convention on the Carriage of Goods by Sea, signed at Hamburg on March 31, 1978, and in force November 1, 1992.
[6] United Nations Convention on The Carriage of Goods By Sea, signed in Hamburg, 1978
[7] Protocol Amending the International Convention for the Unification of Certain Rules of Law Relating to Bills of lading (August 25, 1924, as Amended by the Protocol of February 23, 1968), adopted at Brussels, December 21, 1979.
[8] CARR, Indira, Principles of International Trade Law, Second Edition, London 1999, Cavendish Publishing Limited, page 139
[9] Almost all shipping lines have their own bill of lading. These serve as a) documents of title to the goods; b) a receipt for the goods delivered to the shipowner or carrier; c)evidence of the contract which has been entered into force between the shipper of the goods and the shipowner.
[10] Or occasionally only part of the vessel, e.g. where liner companies charter space on each other’s vessels.
[11] Voyage-charter
[12] Time-charter
[13] See for details; KANER, İnci, Çarter ve Kırkambar Sözleşmesi Ayırımı, Marmara Üniversitesi Hukuk Araştırmaları s. 425vd…Cilt no.10, Sayı 1-3, 1996
[14] See for details; ÜLGENER, Fehmi, , Marmara Üniversitesi Hukuk Fakültesi Hukuk Araştırmaları Cilt: 10, Sayı: 1-3, İstanbul 1996, (Zaman Çartereri’nin Gemiyi Kullanma Yetkisi ve Bunun Sınırları), s.451 vd…
[15] Thus the demise charterer is some times called the owner pro hac vice. In turkish ‘Pro hac vice’ means ‘Yalnız muayyen bir iş için’.
[16] e.g. that she is ‘tight, staunch, and every way fitted for voyage’.
[17] The shipper shall be deemed to have guaranteed to the carrier the accuracy at the time of shipment of the marks, number, quantity and weight, as furnished by him, and the shipper shall indemnify the carrier against all loss, damages and expenses arising or resulting from inaccuracies in such particulars. The right of the carrier to such indemnity shall in no way limit his responsibility and liability under the contract of carriage to any person other than the shipper.
[18] Goods of an inflammable, explosive or dangerous nature to the shipment whereof the carrier, master or agent of the carrier has not consented, with knowledge of their nature and character, may at any time before discharge be landed at any place or destroyed or rendered innocuous by the carrier without compensation, and the shipper of such goods shall be liable for all damages and expenses directly or indirectly arising out of or resulting from such shipment.
[19] The shipper shall not be responsible for loss or damage sustained by the carrier or the ship arising or resulting from any cause without the act, fault or neglect of the shipper, his agents or his servants.
[20] Article 12,General rule ; The shipper is not liable for loss sustained by the carrier or the actual carrier, or for damage sustained by the ship, unless such loss or damage was caused by the fault or neglect of the shipper, his servants or agents. Nor is any servant or agent of the shipper liable for such loss or damage unless the loss or damage was caused by fault or neglect on his part.
Article 13, Special rules on dangerous goods; 1. The shipper must mark or label in a suitable manner dangerous goods as dangerous. 2. Where the shipper hands over dangerous goods to the carrier or an actual carrier, as the case may be, the shipper must inform him of the dangerous character of the goods and, if necessary, of the precautions to be taken. If the shipper fails to do so and such carrier or actual carrier does not otherwise have knowledge of their dangerous character: (a) the shipper is liable to the carrier and any actual carrier for the loss resulting from the shipment of such goods, and (b) the goods may at any time be unloaded, destroyed or rendered innocuous, as the circumstances may require, without payment of compensation. 3. The provisions of paragraph 2 of this article may not be invoked by any person if during the carriage he has taken the goods in his charge with knowledge of their dangerous character. 4. If, in cases where the provisions of paragraph 2, subparagraph (b), of this article do not apply or may not be invoked, dangerous goods become an actual danger to life or property, they may be unloaded, destroyed or rendered innocuous, as the circumstances may require, without payment of compensation except where there is an obligation to contribute in general average or where the carrier is liable in accordance with the provisions of article 5.
[21] TC. YARGITAY,11.H.D. E: 1987/5285, K: 1988/183 : In this decision of Yargitay, dated 22.01.1988, ruled that evenif the carrier of the goods is held liable for any damage under the article 1061 of Turkish Commercial Act while he is loading the goods, he cannot be held liable according to the second subparagraph of the article 1062 of the Turkish Commercial Act.
[22] T.C. YARGITAY,11.H.D. E: 1980/1, K: 1980/133: In this decision dated 17.01.1980, Yargitay ruled that the carrier of the goods has to exercise due diligence from the time of taking in charge of goods till discharging. The article 1061 of the Turkish Commercial Act imposes the carrier to exercise due diligence at loading and discharging. Because, contract of carriage of goods “covers the period from the time when the goods are loaded on to the time when they are discharged from the ship”.
[23] The official name of the convention is International Convention for the Unification of Certain Rules of Law relating to Bills of Lading, which is signed in Brussels on 25 August 1924.
[24] Signed at Brussels on 25th August 1924 and entered into force on 2nd June 1931; Turkey is a party to this Convention as of 4th January 1956 ( Act dated 14th February 1955 – 6469; Official Gazette. 22nd February 1955 – 8937)
[25] The official title of this Protocol is “ The Protocol to Amend the International Convention for the Unification of Certain Rules of Law relating to Bills of Lading signed at Brussels on 25th August 1924 – Brussels 23rd February 1968.”
[26]Art.3 rule 1: The carrier shall be bound, before and at the beginning of the voyage, to exercise due diligence to (a) make the ship seaworthy; (b) properly man, equip and supply the ship; (c) make the holds, refrigerating and cool chambers, and all other parts of the ship in which goods are carried, fit and safe for their reception, carriage and preservation.
[27] The position is identical under the Hague-Visby Rules, see Art.3 rule 1. The US view is expressed in the following terms in 1934; ‘Seaworthiness is a relative term depending for its application upon the type of vessel and the character of the voyage. The general rule is that the ship must be staunch and strong and well equipped for intended voyage. And she must also be provided with a crew, adequate in number and competent for the voyage with reference to its length and other particulars, and have a competent and skilled master of sound judgment and discreatin’
[28] McFadden v. Blue Star Line, 1905, 1 KB 697.
[29] See for details; TEKİL, Fahiman, Deniz Hukuku, İstanbul 1998, Alkım Yayınları, 5. Bası, page 260
[30] Hills v. Sughrue 1846, 15M. & W. 253; 41 Digest 455, 2857
[31] Thus in charters, which provide that laytime will commence at 1 p.m. when notice of readiness is given before noon, the conventional day will run from 1 p.m.
[32] See for details; ÜLGENER, Fehmi, Starya Süresinin Hesaplanmasında Running Days – Working Days Klozları, Deniz Ticareti, Ocak- Şubat 1991.
[33] Turkish Labor Code, numbered 4857, enacted on 22/05/2003, entered into force on 10/06/2003
[34] In Pyrene Co. v. Scindia Steam Navigation Co., Devlin J. made a very authoritative statement: the Hague Rules were not meant to “attach to a period of time”, but to the “contract” of carriage, including loading and discharging. The contract is the essential criterion. Once the carrier has agreed to take on the loading (and discharging) operation, the Rules will cover the whole period of loading (and discharging) if the parties so agree:
“The phrase ‘shall properly and carefully load’ may mean that the carrier shall load and that he shall do it properly and carefully; or that he shall do whatever loading he does properly and carefully. The former interpretation perhaps fits the language more closely, but the latter may be more consistent with the object of the Rules”. In Pyrene v. Scindia, cargo was lifted by ship’s tackle and dropped and damaged before crossing the ship’s rail. The Rules therefore applied to the damage and the carrier was permitted to benefit from the package limitation.
[35] The carrier shall be bound, before and at the beginning of the voyage, to exercise due diligence to (a) make the ship seaworthy; (b) properly man, equip and supply the ship; (c) make the holds, refrigerating and cool chambers, and all other parts of the ship in which goods are carried, fit and safe for their reception, carriage and preservation.
[36] Neither the carrier nor the ship shall be liable for loss or damage arising or resulting from unseaworthiness unless caused by want of due diligence on the part of the carrier to make the ship seaworthy, and to secure that the ship is properly manned, equipped and supplied, and to make the holds, refrigerating and cool chambers and all other parts of the ship in which goods are carried fit and safe for their reception, carriage and preservation in accordance with the provisions of paragraph 1 of Article III.
[37] The carrier is liable for loss resulting from loss of or damage to the goods, as well as from delay in delivery, if the occurrence which caused the loss, damage or delay took place while the goods were in his charge as defined in article 4, unless the carrier proves that he, his servants or agents took all measures that could reasonably be required to avoid the occurrence and its consequences.
[38] See the decision of T.C. YARGITAY 11. H.D, E. 2003/7062 K. 2004/1501, dated 19.2.2004
[39] OKAY, Sami, Deniz Ticareti Hukuku II, 2. edition, İstanbul 1971., page 93-96
[40] Y.11.HD. 7.14.1983, E. 83/1594, K. 83/1772 YKD, July 1983, 1024. In this decision, Court of Cassation ruled that; “The clause of FIO ( Free In and Free Out ) in the bill of lading means that the cargo owner, shipper or charterer is to bear the cost to the shipowner of loading, stowing and discharging the cargo, including that part of those operations which take place on board ship. The carrier are not responsible for loss of or damage to cargo occurring during the operations of loading and discharging. According to the cargo report on 25.11.1981, it can be seen that the damages to the cargo occured in the period of discharging. Thus, the shipper of the cargo is responsible for that loss of or damage to the cargo.”
[41] The decision was rendered in 1997 by a South African Court numbered 19B/14, dated 2/11/1977. The Judge Thring J. stated that despite a FIOS notation on a bill of lading: …the defendant [shipowner/carrier] could not validly have contracted out of such liability [for improper stowage] because, to my mind, such an agreement would have fallen foul of art III rule 8 of the Hague-Visby Rules, which render null and void and of no effect any clause, covenant or agreement in a contract of carriage relieving the carrier or the ship from liability for, inter alia loss or damage to goods arising from failure in the duties and obligations provided in that article, one of which duties is, of course, properly and carefully to stow the cargo.
[42] See for details; ÜLGENER, Fehmi, FIOS şartının etkileri. Deniz Hukuku Dergisi, Haziran 1996.
