Legal
We now begin to study the section of the BIFA STC that details the obligations of your customer. Clauses 17 to 22 are broadly headed THE CUSTOMER and there are a number of warranties and indemnities included in this section. In this edition of BIFAlink we are looking at clause 17. Know your BIFA Standard Trading Conditions 2021
additional freight charges – Brushfield, Sargent & Co Ltd v Holmwright Engineering Co Ltd [1968], Lloyd’s Rep 439. The warranty cannot apply when the full and accurate particulars are known only to the BIFA Member, for example when the BIFA Member has carried out or has organised, the packing. Clause 17(A) (i) of this clause has been improved to deal with the introduction of the new SOLAS Regulations pertaining to the verification of the gross mass of a packed container which came into force on 1 July 2016. Comment on Clause 17(B) This warranty cannot apply when the BIFA Member has performed the packing, labelling, etc. At English common law, a carrier is not liable for damage caused by another’s improper packing before despatch even though he knew that the goods were not properly packed when he accepted them – Gould v South Eastern & Chatham Rail Co, All ER Reprints [1920] 654. However, also at English common law, when a defect in packing is discovered during carriage, a carrier has a duty to take steps to preserve the goods – Cox v London North Western Railway [1872]. Comment on Clause 17(C) The object of this warranty is to protect the BIFA Member when he receives a Transport Unit provided by the Customer and already stowed with Goods so that the BIFA Member cannot check the condition or suitability of the Transport Unit. Comment on Clause 17(D) When the Transport Unit is provided by the Company – and which under a sub-contract might be a trailer provided by a road transport operator or a container provided by a shipping company or container operator – the onus is on the Customer to check the condition and suitability of the Transport Unit before it is loaded. The Customer would be expected to make a ‘layman’s inspection’ of the Transport Unit for obvious holes, rust, contamination and suitability and not a fine defect apparent only to a trained Transport Unit engineer.
Clause 17 The Customer warrants: (A) (i) That the following (furnished by on or behalf of the Customer) are full and accurate: the description and particulars of any Goods; any information furnished (including but not limited to, the nature, gross weight, gross mass (including the verified actual gross mass of any container packed with packages and cargo items), and measurements of any Goods); and the description and particulars of any services required by or on behalf of the Customer are full and accurate, and (ii) That any Transport Unit and/or equipment supplied by the Customer in relation to the performance of any requested service is fit for purpose. (B) That all Goods have been properly and sufficiently prepared, packed, stowed, labelled and/or marked, and that the preparation, packing, stowage, labelling and marking are appropriate to any operations or transactions affecting the Goods and the characteristics of the Goods. (C) That where the Company receives the Goods from the Customer already stowed in or on a Transport Unit, the Transport Unit is in good condition, and is suitable for the carriage to the intended destination of the Goods loaded therein, or thereon; (D) That where the Company provides the Transport Unit, on loading by the Customer, the
Transport Unit is in good condition, and is suitable for the carriage to the intended destination of the Goods loaded therein, or thereon. General comment on Clause 17 The word ‘WARRANTY’ is used here in the sense of being an assurance or guarantee that certain facts or circumstances apply. These warranty clauses are important and if the Customer is in breach of the warranties, the BIFA Member is indemnified from liability by the indemnity clause in Clause 20(A). The warranties apply whether the BIFA Member acts as Agent or Principal. Comment on Clause 17(A) Full and accurate information may be required for Customs purposes, for stowage purposes especially regarding dangerous goods, for routing and many other purposes. If the company incurs any expense particulars, then recourse can be made to the Customer and/or liability to the Customer can be repudiated. At English common law, where a shipper has furnished an inaccurate specification of a consignment and the forwarding agent has had to pay additional freight charges to obtain the bills of lading, the shipper is liable for the or liability arising through inaccurate or inadequate
“ Warranty clauses are important and if the Customer is in breach of the warranties, the BIFA Member is indemnified from liability by the indemnity clause in Clause 20(A)
September 2023 | 19
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