Lecture 9 Flashcards
What is a Third Party Holder and what are the concerns related to them?
A TP Holder is not involved in the initial contract between shipper and carrier and is often unaware of the contract’s contents. Concerns include how they acquire rights/obligations against the carrier (theoretical) and ensuring their protection (practical).
What is the Presentation Rule regarding Bills of Lading?
The right incorporated in a B/L is exclusive to the holder, who must present and surrender the B/L to the carrier to claim delivery. This applies even to straight B/Ls. Usually, there are multiple originals (3), and once delivery is made against one, the others are void.
How does the Conclusive Evidence Rule apply under Hague Rules and Visby Protocol?
Under Hague Rules (Art. 3.4), the B/L is prima facie evidence of goods received as described. Under the Visby Protocol, proof to the contrary is not admissible if transferred to a TP Holder acting in good faith.
What cases demonstrate the Conclusive Evidence Rule in action?
Damco / Meister (2003): Fraudulent B/Ls issued; TP Holder successfully claimed against the carrier.
Peter Cremer GmbH v General Carriers SA (The Dona Mari, 1974): Clean B/L issued despite moisture damage noted in Mate’s Receipts; carrier liable to TP Holder.
What are the rules on freight under HVR, Hamburg Rules, and Rotterdam Rules?
Hague-Visby Rules: No provisions on freight.
Hamburg Rules (Art. 16.4): Carrier cannot claim freight from TP Holder unless stated as ‘freight collect’.
Rotterdam Rules (Art. 42): Carrier can claim freight unless noted as ‘freight prepaid’.
When does a TP Holder become liable under COGSA 1992 (UK)?
TP Holder becomes liable if they:
Take delivery of goods.
Demand delivery of goods.
Make a claim under the contract of carriage.
The holder’s liability does not erase the shipper’s liability (s. 3.3).
What cases illustrate Holder Liability?
Borealis v Stargas (The Berge Sisar, 2001): ‘Taking delivery’ means full and voluntary transfer of possession; ‘making a claim’ is narrowly interpreted.
The Ithan: Demanding security is not considered ‘making a claim’.
How do Jurisdiction Clauses apply to TP Holders?
Clauses must be a real agreement (EU Brussels I Regulation).
If TP Holder ‘steps into the shoes’ of the shipper, the clause applies if validly agreed. Otherwise, a direct agreement is required (Coreck Maritime case).
How does Civil Law view TP Holders?
Under Civil Law, a TP Holder becomes a party to the contract of carriage (contractual position). The statutory position grants TP Holders rights and obligations for efficiency.
What is the UK Law approach to TP Holders under Bills of Lading Act 1855 and COGSA 1992?
The Acts create a contractual situation for TP Holders.
Section 2(1): Lawful holder acquires all rights of suit as if they were a party to the contract.
Lawful holder must be correctly acquired (regelmatige houder) and act in good faith (rechtmatige houder).
