THE HAGUE RULES, 1921

DEFINING THE RISKS TO BE ASSUMED BY SEA CARRIERS UNDER A BILL OF LADING, REFERRED TO IN THE FORegoing resolUTIONS. (Set out on page 20.)

Article I.-DEFINITIONS.

IN these Rules

(a) "Carrier" includes the owner or the charterer who enters into a contract of carriage with

a shipper.

(b) "Contract of carriage" means a bill of lading or any similar document of title in so far as such document relates to the carriage of goods by sea.

(c)

"Goods" includes goods, wares, merchandise, and articles of every kind whatsoever except live animals and cargo carried on deck.

(d) "Ship' includes any vessel used for the carriage of goods by sea.

(e) "Carriage of goods

,,

covers the period from

the time when the goods are received on the ship's tackle to the time when they are unloaded from the ship's tackle.

NOTES ON ARTICLE I.

Carrier.

It has already been explained (Introduction, p. 4) that a bill of lading is a receipt for goods shipped on board a ship, stating the terms of the contract of carriage. A bill of lading may relate to a whole cargo, but is more often issued in respect of a parcel of goods forming part only of a cargo. The bill of lading may be issued on behalf of the shipowner, or on behalf of a charterer who has hired the ship from the owner under a charterparty. In the Rules the general term "carrier" is used to include the owner or the charterer who enters into a contract of carriage with a shipper.

Where a bill of lading is issued in respect of goods shipped on board a chartered ship, and the charterer is himself the shipper, the document is usually a mere receipt for the goods. Where the shipper is other than the charterer a bill of lading issued by or on behalf of the charterer may or may not incorporate some of the terms of the charter-party. It may, in some circumstances, establish contractual relations not only between the shipper and the charterer, but also between the shipper and the shipowner.

In Samuel v. West Hartlepool Co. (1906) II Com.

Cas., 115, Walton J. observed that, "Where the charterparty amounts to what is called a demise of the vessel, . . . the contracts with the shippers under the bill of lading are between them and the charterers and not between them and the owners. Again, there is another class of cases in which the charterers by the charter-party do no more than undertake that a full cargo shall be shipped and guarantee payment of a certain freight. In such cases the contract of carriage under the bill of lading would ordinarily be between the owners and the shippers. . . . And between the two types or classes which I have described there is a great variety of intermediate cases."

.

As the term "carrier" is used in the Rules to include the owner or the charterer, the Rules will be applicable whether the contract is with the owner or the charterer.

Contract of Carriage.

"Contract of Carriage" is defined as meaning a bill of lading or any similar document of title in so far as such document relates to the carriage of goods by sea. There is not in the Hague Rules or in any English statute any definition of a bill of lading. (The Customs Tariff Amendment Act, 1860, deals with the construction of the term "bill of lading" but does not define it.) Scrutton's definition has been quoted in the Introduction, p. 4. In the leading case of Mason v. Lickbarrow (1790), I H. Bl., 357, Lord Loughborough said: "A bill of lading is the written evidence of a contract for the carriage and delivery of goods sent by sea for a cer

tain freight. The contract in legal language is a contract of bailment; 2 Lord Raym., 912. In the usual form of the contract the undertaking is to deliver to the order or assigns of the shipper. By the delivery on board the shipmaster acquires a special property to support that possession which he holds in the right of another, and to enable him to perform his undertaking. The general property remains with the shipper of the goods until he has disposed of it by some act sufficient in law to transfer property. The indorsement of the bill of lading is simply a direction of the delivery of the goods."

It is pointed out by Scrutton (p. 178) that bills of lading making goods deliverable "to order" or "to order or assigns" are, by mercantile custom, negotiable instruments, the indorsement and delivery of which may affect the property in the goods shipped. "Negotiable" is not here used in the strict sense of an instrument giving to a transferee a better title than that possessed by the transferrer, and bills of lading are more correctly described as "transferable."

The negotiability of bills of lading in the strict sense is a debated question. In the recent case of the Marlborough Hill (1921), A.C., 444, Lord Phillimore observed: "If this document is a bill of lading it is a negotiable instrument," but this statement has been challenged in a learned review of the authorities by Mr. Raymond E. Negus in 37 Law Quarterly Review, 442 (October, 1921). Regarding the bill of lading as a document of title, see Bennett's "History of the Bill of Lading."

Goods.

The definition of goods in the Rules agrees with the provisions of the existing American, Australian, New Zealand, and Canadian legislation in excluding live animals. Cargo carried on deck is, however, not excluded by those Acts, though the Canadian statute as amended in 1911 excludes "lumber, deals, and other articles usually described as wood goods." Various statutory definitions of "goods" are quoted in Stroud's "Judicial Dictionary."

Ship.

Compare various statutory and other definitions collected in Stroud's "Judicial Dictionary."

Carriage of Goods.

This definition should be read with Article VI. Upon these provisions the whole question of the scope and application of the Rules arises. From the time when the goods are received on the ship's tackle to the time when they are unloaded from the ship's tackle the risks assumed by the carrier are those defined by the Rules. The carrier may have contracted to perform duties prior to loading and subsequent to unloading, but any liabilities in connection with those duties are to be ascertained otherwise than by reference to the Rules. Such liabilities may depend on terms expressly stated in the contract, or possibly on the custom of the port. Thus it was laid down in Catley v. Wintringham (1792), Peake, 202, that, by the custom of the River Thames, a shipmaster is bound to