A trick question..?? Lets discuss this with a case study of a case that is raging on in one of the social media forums..
A forwarder booked 2×20′ containers with a shipping line to Doha on behalf of his client.. Due to a mistake of the shipping line staff, the shipping line shipped 1×20′ to Doha and put the other 1×20′ with some other clients container and shipped it to Bremerhaven.. This happened because the Doha container was linked by mistake to the booking of the Bremerhaven container.. By the time the forwarder found this mistake out, the container was already on its way to Bremerhaven.. The shipping line has advised that this container will be rerouted but the container will take about 60 days to reach Doha instead of the original transit time of 20 days if it had gone directly..
Due to this delay, the forwarder has lost his client (the shipper), because the shipper blames the forwarder, the shipper has lost future orders with his client and has lost his credibility in the market..
When the forwarder placed the shipping line on notice and raised a claim against them, the shipping line is trying to hide under their bill of lading clauses as below
Q: 19.1 The Carrier may at any time and without notice to the Merchant:
(a) use any means of transport or storage whatsoever;
(b) transfer the Goods from one conveyance to another including transshipping or carrying the same on a Vessel other than the Vessel named on the reverse hereof or by any other means of transport whatsoever and even though transshipment or forwarding of the Goods may not have been contemplated or provided for herein; UNQ
Q: 19.2 The liberties set out in clause 19.1 may be invoked by the Carrier for any purpose whatsoever whether or not connected with the Carriage of the Goods. Anything done or not done in accordance with clause 19.1 or any delay arising therefore shall be deemed to be within the contractual Carriage and shall not be a deviation. UNQ
20. Matters affecting performance
If at any time Carriage is or is likely to be affected by any hindrance, risk, danger, delay, difficulty or disadvantage of whatsoever kind and howsoever arising which cannot be avoided by the exercise of reasonable endeavours, (even though the circumstances giving rise to such hindrance, risk, danger, delay, difficulty or disadvantage existed at the time this contract was entered into or the Goods were received for Carriage) the Carrier may at his sole discretion and without notice to the Merchant and whether or not the Carriage is commenced either:
(a) Carry the Goods to the contracted Port of Discharge or Place of Delivery, whichever is applicable, by an alternative route to that indicated in this TD or that which is usual for Goods consigned to that Port of Discharge or Place of Delivery. If the Carrier elects to invoke the terms of this clause 20(a) then, notwithstanding the provisions of clause 19 hereof, he shall be entitled to charge such additional Freight as the Carrier may determine; or UNQ
The hapless freight forwarder is left without a solution as the shipping line is rejecting his claim for
- delayed delivery
- loss of current and subsequent business of their client
- the shipper is blaming the freight forwarder for the mishap and is expecting them to sort out the problem
Here’s what i think :
I think the forwarder has a valid case, as the delay was due to the the shipping line making the mistake and routing the container to the incorrect destination in an entirely different continent and trade route and not due to delay in transit to Doha..
If the container that was bound for Doha was delayed, then the SL can hide behind the clause mentioned and say we promised to get your container to Doha but didn’t promise you how long it will take..
But in the case of the container that was originally bound for Doha but sent to Bremerhaven incorrectly, they cant hide under this premise because they have sent the container to an entirely different port (without informing the customer) and this contravenes the contract of carriage (which was for Doha).. The bill of lading was issued correctly, but the containers were routed incorrectly..
I think the forwarder stands a chance if he goes to court..
Do you agree with my view..?? Did anything similar happen to you..?? Please do share your experience and also what was the final outcome.. It will be a good lesson for all to learn..