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“ The effect of the judgment will also likely be that the usual clauses providing for exclusion of liability clauses, that are quite popular in the container industry, will be unlikely to offer protection in
acknowledged that if there was a significant discrepancy between declared and actual weights, the carrier should flag that and an unclaused bill of lading implied that there was nothing wildly at odds with the bill of lading quantity. However, given the court’s factual conclusions, Maersk was not in breach of this duty. The court recognised that it was a natural and incremental extension of the carrier’s duty of care to consignees to prevent others from using the bill of lading as an instrument of fraud once a carrier is put on notice of that fraud. So, where a consignee under a straight bill of lading can establish that the carrier knew or ought to have known when issuing the bill that there was a substantial discrepancy between the shipper declared weights and the actual verified weights, it has a strong case that the carrier ought not to issue an unclaused bill or ought not to have issued a bill at all. Such a discrepancy would give rise to an assumption on the part of the carrier that the proposed bill was being used as an instrument of
fraud and it was fair, just and reasonable for the carrier to have a duty to prevent this, once it had been put on notice of that fraud. However, Stournaras’s claim failed on the facts as Maersk did not have the requisite knowledge to have been put on notice not to issue the clean bills of lading. Discussion The scope of this novel duty of care will likely be developed further by case law. It took its final shape within a paragraph and was not discussed in too much detail in light of the court’s findings of fact. Whilst the court accepted that, in circumstances where the carrier knows of the discrepant weights it needs to take action, the mere possession of the two discrepant weights was not sufficient in 2019 and on this particular occasion. The position would have likely been different if the two weights were in front of the person who was issuing the bills of lading. If, for instance, the master himself issued the bills, then there would be a strong case for invoking that duty as the master would invariably be
in possession of the VGM. The judge noted that the position of containerised cargo was potentially different to that of traditional bulk cargoes. The effect of the judgment will also likely be that the usual clauses providing for exclusion of liability clauses, that are quite popular in the container industry, will be unlikely to offer protection in circumstances such as these. It will also be interesting to see how the duty would apply to industries other than shipping as it concerns a duty to prevent others from using a document issued by the party owing the duty as an instrument of fraud. BIFA would like to thank Watson Farley & Williams for permission to reproduce this article. The full judgment is available here. https://caselaw.nationalarchives. gov.uk/ewhc/comm/2024/2494 The original article can be viewed at https://www.wfw.com/articles/duty -of-care-on-carriers-where- discrepancy-between-declared-an d-verified-container-weights/
circum - stances such as these
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