Identity Of Carrier Conundrum Finally Resolved

Article by Miranda Karali and Charles Smith

The House of Lords in Homburg Houtimport -v- Agrosin Private Limited & Ors "The Starsin" [2003] 2 WLR 711 overruled the Court of Appeal decision and in so doing, finally resolved a confused area of law relating to the situation where the wording in the signature box on the front of the bill of lading conflicts with standard identity of carrier and demise clauses on the back.

It is now common for demise clauses and identification of carrier clauses to be tucked away on the back of bills of lading in barely legible tiny print. This would not matter if they merely confirmed the details of the carrier indicated in the signature box or set out elsewhere on the front of the bill, but when there is conflicting information on the back of the bill, the identity of the carrier is far from certain.

CONFLICTING DECISIONS

In Fetim B.V. -v- Oceanspeed Shipping ("The Flecha") [1999] 1 LLR 612 Moore-Bick J held that the owners were the contracting carrier in a bill of lading contract as the demise and identity of carrier clause on the back of the bill clearly indicated that result, even though another company was described as the carrier on the front of the bill.

In Sunrise Maritime -v- Uvisco ("The Hector") [1998] 2 LLR 287 Rix J held that the typed stipulation of the charterer, USEL, as carrier on the face of the bill must be regarded as superseding the standard form identity of carrier clause on the back. The "Hector" was time chartered to USEL on terms that the master was to authorise the charterers to sign bills of lading on their behalf in accordance with mates' receipts. Rix J considered that the bill of lading should be read in light of all its terms and also by reference to the surrounding circumstances. He concluded that the owners were not a party to the bill of lading as it was clearly intended that the bills would be issued and signed on the charterers' behalf. This decision left this area of law in a state of limbo as Rix J's judgment made no reference to the prior decision of Moore-Bick J in The Flecha. It would surely be difficult to argue that these two cases are distinguishable on the facts. They are in fact irreconcilable.

This is where we come to The Starsin which came before Colman J at first instance. In this case, the shipowners time chartered the vessel "Starsin" to Continental Pacific Shipping Limited ("CPS") in October 1995 for one trip from the Far East to ports in Western...