[转载]Britannia协会/Ince & CO/UK协会

前言：成品钢材(finished steel products)货损一直是保赔协会关注的重点。很多协会鼓励会员做钢材的装前检验并愿意支付相关费用。协会为此也订立了具体的装前检验标准和细则。在保险的倒逼之下，preloading of steel products现今已成为件杂货船东的normal practices。以下就是一个船东，单纯希望能够援引提单中的Relta 条款来进行货损的抗辩。具体详见Britannia和Ince & CO 律所的Brief。另外，附上早先UK协会对RETLA条款的意见和态度供参考。

 

以上仅供学习，转载请注明出处。谢谢！

 

RETLA CLAUSES AND CLEAN BILLS OF LADING: THE DANGERS

 

Source:Britannia Claims and Legal Volume 5

 

In the recent case of The Saga Explorer (Breffka & Hehnke GmbH & Co KG and Others v Navire
Shipping Co Ltd and Others [ 2012 ] EWHC3124 (Comm)), the High Court considered the effect of a 'Retla Clause’ in a bill of lading,a clause which commonly appears in the context of the transport of steel cargoes.

Facts
The seller (the 'Shipper’) sold a consignment of steel pipes to the buyer(the 'Consignee’).
The sale contract provided for payment by a letter of credit but the practice which had developed between the parties was that the Consignee paid in cash against clean bills of lading.

 

In the survey conducted at the load port the pipes were described as 'partly rust stained’. The surveyor noted that the 'damage/exception’ had been acknowledged by the Master and recommended that the Mate’s Receipt and bills of lading should be claused accordingly.

 

The Mate’s Receipt included a Retla Clause and also stated 'condition of cargo as per survey report’. However, although the bills of lading included a Retla Clause, the statement 'condition of cargo as per the survey report’ was not included and clean bills were issued by owners stating that the pipes were shipped in apparent good order and condition’. Although the owner’s representative said that he had assessed the extent of rust observed by the surveyor and decided that it fell within what should be covered by the Retla Clause, he nevertheless received a Letter of Indemnity (LOI) for clean bills of
lading from the Shipper. (At the hearing, the Court said that the fact that the owner’s
representative accepted an LOI meant that he did not, in fact, believe that the condition
of the cargo was covered by the Retla Clause.)

 

The Clause provided:

 

RETLA Clause: If the Goods as described by the Merchant are iron, steel, metal or timber
products, the phrase 'apparent good order and condition’ set out in the preceding paragraph does not mean the Goods were received in the case of iron, steel or metal products, free from visible rust or moisture or in the case of timber products free from warpage, breakage, chipping, moisture, split or broken ends, stains, decay or discoloration. Nor does the Carrier warrant the accuracy of any piece count provided by the Merchant or the adequacy of any banding or securing. If the Merchant so requests, a substitute Bill of Lading will be issued omitting this definition and setting forth any notations which may appear on the mate’s or tally clerk’s receipt.’

 

The pipes were found to be rusted on discharge and the Consignees sued owners in the High Court to recover damages.

 

High Court’s decision

Owners contended that English law should follow the US case of Tokio Marine & Fire v Retla Steamship [1970] Lloyd’s Rep 91 (US 9th Circuit CA) and that the court should hold that the effect of the Retla Clause was that all surface rust of whatever degree was excluded from the representation of good order and condition. The High Court rejected this argument and found for the Consignee.

 

Commenting on the Retla Clause theJudge said:

'I reject the Owner’s argument, based on the facts of the decision in the Tokio Marine case… that the Retla clause applies to all rust of whatever severity… Such a construction would rob the representation as to the good order and condition of the steel cargo on shipment of all effect’.

 

Nevertheless, the Judge accepted that the Retla Clause did have some effect:

 

'The Retla clause can and should be construed as a legitimate clarification of what was to be understood by the representation as to the appearance of the steel cargo upon shipment. It should not be construed as a contradiction of the representation as to the cargo’s good order and condition, but as a qualification that there was an appearance of rust and moisture of a type which may be expected to appear on any cargo of steel: superficial oxidisation caused by atmospheric conditions. The exclusion of 'visible rust or moisture’ from the representation as to the good order and condition is thus directed to superficial appearance of a cargo which is difficult, if not impossible, to avoid. It is likely to form the basis of a determination as to due to inherent quality of the goods on shipment under S.4(2)(m) of US COGSA, or Article 4(2)(m) of the Hague-Visby Rules.’ whether there has been further deterioration.

 

Even with the Retla Clause acting as a qualification of 'good order and condition’ the Judge held that the condition of the cargo was not reasonably and honestly represented by the bills of lading and that the decision to issue and sign clean bills involved representations by owners that were untrue and intended to be relied on by the Consignee.

 

The Judge also held that the description of the cargo on the bill of lading did not reflect an honest and reasonable view of its appearance but amounted to a calculated deceit on the part of owners at the request of the Shipper and to the prejudice of those (i.e. the Consignee) who would rely on the contents of the bills. Owners were therefore held liable.

 

Comment

The effect of Retla Clauses may now be limited to only superficial rust. However, the judgment has already been the subject of legal commentary and may be easily distinguishable.

 

If the ruling is to be followed then one result may be that when a Retla clause is relied upon a clash of experts will inevitably follow as to what level of rust constitutes 'appearance of rust or moisture which might be expected to appear on any cargo of steel: superficial oxidation caused by atmospheric conditions’. Mr Justice Simon referred to the particular difficulties in describing surface oxidation even after experts had given evidence (and failed to agree how the rust should be described).

 

下面是INCE & CO律所的评述：

Breffka & Hehnke GmbH & Co KG and others v. Navire Shipping Co. Ltd and others (Saga Explorer) [2012] EWHC 3124 (Comm)

 

货方因提单下的钢管货物发生严重锈蚀提起诉讼。实际上，该批钢管在受托承运之初就已有锈蚀情况，但提单中包含标准的RETLA条款（该条款得名于一起美国判例，Tokio航海及火灾保险公司 v Retla船务公司），船东希望援引该条款进行抗辩。RETLA条款有时会出现在涉及运输包括铁、钢、金属制品、木材等货物的提单上。该条款说明的内容是：当货物收妥待运时，货物可能存在可见的锈迹或水分、污渍或擦伤等。这一条款的目的是对提单上“外表状况良好”的表述进行一些限制。这意味着：即使大副收据上对有关货物的外表状况做了特别批注，承运人仍可以签发清洁提单。Simon法官在此案中的判决是英国法院首次在判例中对该条款加以考量。Simon法官未采纳Tokio Marine 一案中判决的理由，并认为本案中提单下对货物外表状况的记录并非实际情况的真实表述。

 

背景资料
船舶在蔚山装载货物钢管，运到洛杉矶、旧金山和温哥华。提单载有美国通用首要条款（US General Paramount Clause），且并入美国海上货物运输法（US COGSA）。提单也包含了一般声明，称交运货物“外表状况良好”。然而，除此之外，该提单还包括了RETLA条款，其主要实质内容如下：

“若货物确为货方所描述的铁、钢[或]金属... 前款中所述“外表状况良好”不表示收到的货物...毫无可见锈迹或水分...如果货方如此要求，可另行签发不含此定义的提单替代，并列明大副或理货员的收据上可能作出的批注。”

 

装货港检验报告对有关钢管锈蚀及表面氧化情形作出批注并建议对提单和大副收据进行批注。大副收据中也包括RETLA条款并指出货物状况如检验员报告所述，但却未随附检验员报告。相关的（船舱）订单则指出提单应按大副收据签发。

 

但是，船东并未在提单中进行批注。相反，船东应托运人的要求签发了包含RETLA条款的清洁提单，并接受了托运人签发的赔偿保函（LOI）。当货物分别在三个卸货港卸载时，发现货物有明显锈蚀损。货方起诉船东，要求船东赔偿其所受的损失。

 

商事法院的判决

无证据表明货物状况在航程中出现显著恶化，因此，案件的关键在于船东收货时对货物状况所做的表述是否恰当。

 

船东援引RETLA条款，辩称依据对该条款的解释，其对货物外观状况良好的陈述中应排除货物所有表面锈蚀，无论其程度和范围如何。船东援引Tokio Marine & Fire Insurance Company Ltd v. Retla Steamship Company [1970] 2 Lloyd’s Rep 91一案中的判决支持其观点。在该案中，美国联邦上诉法院（第九巡回法院）认为，从提单整体理解，该条款意味着提单并未对所载钢管无生锈或潮湿作出陈述。

 

货方主张，RETLA条款虽然对货物外观状况良好的表述进行限制，但是这两条规定应综合考量。此外，货方进一步主张：由于此条款意在排除责任，因此应对该条款作限制性解释，仅当货物生锈情况为一般正常货物上均可能出现的表面锈迹且不影响货物的整体质量或适销性的情形下，该条款才有效并免除船东的赔偿责任。

 

法官大体认同货方对该条款的解释，也认为应结合有关货物情况的标准表述来理解RETLA条款。他据此认为该条款实质上是对“[货物]表面状况”的修饰和限制。

 

法官接着提出下列两点理由反驳了船东的观点：

 

若采用船东的观点，会使提单上关于货物外观状况良好的表述变得全无意义;

且船东援引的该美国案件的判决理由存在逻辑推理上的瑕疵。美国法院着重强调的事实是：如果托运人愿意的话，其有权要求船东另行签发提单，提单上注明货物的实际情况（在实践中，指引用检验员的货检报告）。而在现实中，考虑到卖方若提交有批注的提单将难以收取货款，托运人很少会如此要求。

 

法官结论认为船东在提单上所作的表述根本不真实（事实上具有欺骗性）且货方因信赖该表述而受到了损失。因此，法官在本案中支持货方的诉求。

 

评论

本案的判决表明船长有义务本着诚实守信、客观合理的态度正确记录货物的外观状况。因此，当货物准备待运而货物的外观状况有必要在提单上加以注明时，不得以任何其他形式的提单取而代之。不恰当地描述货物的情况，会令船东面临不实陈述的指控，尤其是当第三方作为货物买方仅以提单为依据签署了货物的购买合约，卖方也未曾向其出示过任何托运前检验报告的情形下。

 

在提单中并入RETLA条款的做法至少目前在英国法下并不对船东构成保护，除非货物仅有表面生锈或受潮的情形。如果船东在收到赔偿保证函（LOI）及签发清洁提单时已通过船长了解到货物的实际情况，即如本案中由托运人签发的LOI，则船东并不享有追索权。在这种情况下，其行为将被认为是非正当行为，LOI因此也无法强制执行。

 

另外的郑睿博士的评述详见链接：http://www./column_article.php?id=1564

 

Members may on occasions be requested to use RETLA clauses in bills of lading, particularly when carrying cargoes of steel or timber. A typical RETLA clause reads as follows:

"The term "apparent good order and condition" when used in this bill of lading with reference to iron, steel or metal products does not mean that the goods, when received, were free of visible rust or moisture. If the shipper so requests a substitute bill of lading will be issued omitting the above definition and setting forth any notations as to rust or moisture which may appear on the mate's or tally clerk's receipts".

The intended effect of this and similar clauses is to satisfy the carrier that clean bills of lading may be safely issued, even though the mate's receipts are claused, because responsibility for any claims for pre-shipment damage can still be denied. 

Indeed, the clause has been upheld in the U.S. Ninth Circuit (California, Washington and Oregon) and there has also been a positive decision in the Southern District Court of New York. The U.S. Courts which have upheld the  RETLA clause have done so based upon the following factors:

1. The RETLA clause was printed on the face of the bill of lading and was not confined to  the fine print on the back;

2. The RETLA clause contained a provision that the shipper could request a substitute bill of lading which was claused to reflect the condition of the cargo noted in the Mate’s receipts.

However, there remains a risk to Members using such clauses as, whilst some courts in the United States may have upheld the clause, other U.S. courts and courts in other jurisdictions have not. The only safe means of avoiding claims arising from pre-shipment damage is to ensure that the bill of lading is claused to reflect the apparent order and condition of the goods at the time of loading. Failure to properly describe the condition of the cargo leaves the carrier open to allegations of being a party to misrepresentation, particularly from third party purchasers of the cargo who have only contracted to do so based upon the bill of lading and who have not been shown any pre-shipment survey by the sellers.

 Members who find themselves unable to defend a cargo claim arising from the issuance of a clean bill of lading under such circumstances, and have relied upon a RETLA clause in place of a proper description of the condition of the cargo, will have prejudiced their cover with the Club in accordance with proviso c.iv to Rule 2 (17). Such claims may only be payable if the Directors decide to exercise their discretion favourably.

RETLA clauses do not carry a recommendation from the Association.

Source of Information:

R. Lingard (Specialist team) G. Daines (Claims Director)

 

以上仅供学习，转载请注明出处。谢谢！