Excluding and limiting liability for misdelivery

Abstract

Whatever may have been the position historically, any assumption that the bill of lading will normally arrive before the goods themselves, enabling delivery to be made against its production, can no longer be made today. In some trades, it is almost routine for shipowners to deliver without waiting for the bill of lading to catch up. This is a matter of convenience, indeed of commercial necessity. Carriers are not intending to commit any wrong, or deprive anybody of their rightful property.

This article looks at the legal protection available to shipowners in this situation, by an exemption or limitation clause in the bill of lading contract.

Though sea carriage remains today governed almost universally by the Hague or Hague-Visby regimes, this article also considers the position under the Hamburg Rules, and the recently approved Rotterdam Rules. It also considers clauses written directly into bills of lading by the parties.

It is very rare for bills of lading explicitly to exempt or limit liability for delivery without production of an original bill. Normally the shipowner relies on wide but unspecific wording. The courts have been very reluctant to interpret such clauses as applying to delivery without production where exemption from liability is claimed. However, limits of liability are treated more kindly, and it seems likely that the wording of the main international conventions suffices.

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