Lloyd's Maritime and Commercial Law Quarterly
THE BILL OF LADING AS A RECEIPT—MISSING OIL IN UNKNOWN QUANTITIES
Charles Debattista *
Where goods are carried by sea under a contract which contemplates the issue of a bill of lading, that document will contain a figure purporting to represent the quantity of goods shipped. If the quantity of goods discharged at the port of destination is less than described on the face of the bill of lading, we have the beginnings of an action for short delivery, and the purpose of this paper is to relate general principles governing shortage disputes to the special position of shippers and receivers of oil cargoes. It is legitimate to isolate general principles as applied to oil cargoes not only because of the physical characteristics and vicissitudes of the commodity, but also because oil traders are ready and able, perhaps to a greater degree than others, to provide convincing, if conflicting, evidence of the quantity of cargo shipped and discharged.1 The receipt value of the bill of lading in the carriage of oil is also complicated by the possible impact of the Hague-Visby Rules in a trade where the bill of lading is commonly issued against the backdrop of a good number of specialized oil charterparties.
The main thrust2 of this paper will therefore be directed towards answering this question:
In an action by a shipper/receiver against a carrier of an oil cargo, can the carrier prove that the measurement recorded on the bill of lading did not accurately represent the oil actually shipped, so as to avoid altogether, or at least abate, the carrier’s liability for short delivery?
An attempt to answer this question involves a consideration of the following three issues:
- I. What is the position at common law?
- II. If the carrier can, at common law, upset the bill of lading figures, what does he need to prove in order to do so?
- III. Can a shipper or receiver of oil carried in a ship under charter call upon the Hague-Visby Rules to bar the carrier from disproving the bill of lading figures?
* Institute of Maritime Law, University of Southampton.
1 See further on the practical difficulties involved in obtaining figures in this area which are not “eminently discreditable” Weale, “Claims for Short Delivery of Bulk Oil Cargoes: some recent trends”, [1978] 3 LMCLQ 405.
2 The measurement of cargo quantities in the carriage of oil raises two other major legal issues: the 0.5% trade allowance, and the deduction of freight under so-called cargo retention clauses. These questions have been much debated in American courts and before American arbitration panels, the deliberations of which have been ably analysed elsewhere: see Thomajan, “Tanker Problems in Arbitration: The 0.5% Allowance” (1983) 14 J.M.L.C. 225, and Textor. “Petroleum Shortage Disputes: The Difference between the Legal and Arbitration Approach”, [1983] 3 LMCLQ 392. Both issues have also been discussed by Weale: see supra, fn. I. Cargo retention clauses have made an appearance before the English courts in The Olympic Brilliance
[1981] 2 Lloyd’s Rep. 176 and [1982] 2 Lloyd’s Rep. 205.
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