Tag: cargo

Carriage of Cargo on Deck: An Update—Lessons from AGCS Marine Insurance Co. v. M/V Imabari Logger

Noe S. Hamra and Thomas H. Belknap Jr. ●


Introduction

In April 2022, we published an article titled “Carriage of Cargo on Deck: Carriers Be Aware,” in which we discussed the legal risks carriers face when transporting cargo on deck under bills of lading governed by United States law. That article highlighted a critical but frequently overlooked point: neither the Hague Rules nor the United States Carriage of Goods by Sea Act (“COGSA”) applies to cargo that the contract of carriage states is being carried on deck and is so carried. We recommended that carriers include express language in their bills of lading incorporating COGSA into on-deck carriage so as to avail themselves of the statute’s defenses and limitation of liability. Since that article was published, the United States District Court for the Southern District of New York has issued a significant ruling in AGCS Marine Insurance Co. v. M/V Imabari Logger, No. 22-CV-9283 (S.D.N.Y. 2024), that reinforces the very concerns we raised and offers new practical guidance for carriers and their counsel.

Background

The dispute in the Imabari Logger case arose from the shipment of 50 large pumping units from China to the United States. The machines, which had a total cost value of approximately $5.85 million, were carried on the vessel’s deck. During the transpacific voyage, 26 of the machines were lost overboard and others sustained damage. The cargo interests, the purchaser, and its subrogated insurer, brought claims in admiralty against the vessel, the non-vessel operating common carrier (“NVOCC”), and the freight forwarder.

Two bills of lading governed the shipment: one issued by the vessel owner and one issued by the NVOCC. Both bills of lading contained broad “shipper’s risk” clauses purporting to exonerate the carriers from any liability for loss or damage to on-deck cargo, “howsoever caused and even if caused by owners’ negligence or unseaworthiness of the vessel.” Critically, neither bill of lading expressly extended COGSA to on-deck cargo.

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Whose Freight Is It Anyway? Consignee Liability for Unpaid Ocean Freight

Zachary R. Cain ●

A shipment of jet fuel travels from Singapore to California, where you, the consignee-owner, happily take possession of your cargo.[1] You had purchased the fuel on Cost and Freight (“CFR”) terms,[2] so once the fuel is offloaded from the ship and you pay your supplier, you expect that should be the end of your concerns for the delivery. But, as it turns out, the shipper/charterer failed to pay the ocean carrier all the freight charges owed, and now the carrier is looking to you to get paid, claiming you are liable for the unpaid freight under the bills of lading and charterparty. Are you on the hook for those unpaid charges?

As with so many legal questions, it depends.

Who’s Who and What’s What? 

First, a quick vocabulary refresher.

A bill of lading is a document “issued by the shipowner when goods are loaded on its ship, and may, depending on the circumstances, serve as a receipt, a document of title, a contract for the carriage of goods, or all of the above.” Asoma Corp. v. SK Shipping Co., 467 F.3d 817, 823 (2d Cir. 2006). Generally, “a bill of lading is the basic transportation contract between the shipper/consignor and the carrier, the terms and conditions of which bind the shipper and all connecting carriers.” Oak Harbor Freight Lines, Inc. v. Sears Roebuck, & Co., 513 F.3d 949, 954 (9th Cir. 2008).

A negotiable bill of lading is typically made out “to the order” of a party and can subsequently be reassigned by endorsing the bill.[3] If a bill is negotiable, it acts as a document of title, and a carrier may typically only deliver goods when physically presented with the original bill.

Anon-negotiable bill of lading, while identifying a consignee, may not be negotiated, and instead is more like a receipt, as well as evidence of the contract of carriage. The carrier is obligated to deliver the shipped goods only to the specific consignee identified on the bill.

Freight in this context is the charge for transporting the goods by ocean carrier.

A carrier is the company that physically transports the goods for the shipper.[4]

The term consignor or shipper refers to the party that delivers goods to a carrier for transport.

A consignee “is the party designated to receive the shipped goods from the carrier.” Kanematsu Corp. v. M/V Gretchen W, 897 F. Supp. 1314, 1315 (D. Or. 1995).

A notify party is “the party to be notified when the goods arrive at their destination.” Dynamic Worldwide Logistics, Inc. v. Exclusive Expressions, LLC, 77 F. Supp. 3d 364, 367 n. 3 (S.D.N.Y 2015). Frequently, but not always, the notify party is also the consignee.

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