The "shipper" in maritime transportation / FOCUS

By ASLA - Associazione degli Studi Legali Associati

di Studio Legale Mordiglia

Genoa - As a rule, operators face the problem of what the obligations and responsibilities of the shipping carrier are, especially in the event that there are losses or damage to the goods transported, or delays and diversions.

On the contrary, it is rarer to deepen what the obligations and responsibilities that the "shipper" assumes towards the carrier, and what the problems connected with its correct identification are.

One of the typical problems of maritime transport concerns the correct identification of the "shipper".

The order does not contain a univocal definition of the concept of "shipper", which can therefore be derived from practice, or from more fragmented sources.

As a rule, the "shipper" is identified with the sender / consignor, or with the person who enters into the transport contract with the carrier represented by the bill of lading.

It can coincide with the owner of the goods, with the seller or with the loader.

A definition is found in regulation VI / 2 of the 1974 Solas Convention, as amended by the MSC resolution. 380 (94) of 21.11.2014 relating to the verification of the weight of the containers (VGM) according to which the "shipper" is "a legal entity or person named on the bill of lading ... as shipper and / or who (or in whose name or on whose behalf) a contract of carriage has been concluded ".

In the Solas agreement, therefore, a broad definition of "shipper" is given as one who is such in the bill of lading, or the person who enters into or in the interest of which the transport contract is stipulated.

In the general conditions on the back of the bills of lading of the main line carriers, the "shipper" is included in the more general definition of "merchant" according to which "merchant includes the Shipper, Holder, Consignee, Receiver of the Goods, any person owing or entitled to the possession of the Goods or of the bill of lading and anyone acting on behalf of such Person ".

It should be borne in mind that the "shipper", as the sender, does not coincide with the "shipper" that in our. system (art. 1737 of the Civil Code) is the agent without representation who "assumes the obligation to conclude, in his own name, but on behalf of the principal, a transport contract and to carry out ancillary operations"; however, since the shipper concludes the transport contract in his own name (albeit on behalf of others), he often appears as a "shipper" in the bills of lading, and as such assumes rights and obligations deriving from the transport contract, which he exercises in the interest of his principal.

The specific shipper bears some specific obligations and responsibilities, which are summarized below.

1. Payment of the freight and of any "demurrage"

The main obligation of the "shipper" towards the carrier is the payment of the freight, or the transportation fee, which must be paid within the terms established by the agreements made with the carrier.

Since the carrier has a privileged right on the cargo, the non-payment of the freight within the agreed terms implies the carrier's right to retain the goods, and, in some cases, to sell it to satisfy its credit.

In addition to the freight, the "shipper" is liable for the costs that may accrue during transport, until the receiver requests the return of the goods.

For example, the "shipper" is liable for the costs that the carrier bears following the exercise of the right to order, which consists in the "shipper"'s right to modify the terms of the transport contract by requesting the return of the goods, or the transport to another place of destination compared to that originally agreed.

Likewise, the "shipper" is responsible towards the carrier for the payment of the parking costs of the container, if this is not collected by the receiver in the agreed terms, as well as the so-called containers' "demurrage", or of those sums due for the holding of the containers beyond the exemption period - agreed with the carrier - within which the receiver should pick them up at the destination port, empty them and return them.

In this regard, it is good to remember that the liability for parking costs and counter-claims is limited in the burden of the carrier to promptly inform the stock shipper, and, as regards the counter-claims, these, being penal in nature, can be reduced by the Judge according to fairness if they are manifestly excessive (e.g. because they far exceed the replacement value of the container).

2. Description of the goods in the transport documents and description of the dangerous goods

In addition to the payment of freight and ancillary costs, the "shipper" is required to provide the carrier with a detailed description of the goods by type, quantity (number of pieces or packages), weight, packaging and brands and, if present, number of the seal.

This information, in fact, is indicated in the bill of lading and is presumptive, unless proven otherwise, of the receipt of the goods by the carrier in the conditions indicated.

Among the information that the "shipper" is required to provide there are those relating to the characteristics of the dangerous goods, which are identified according to specific codes.

The "shipper" is liable for any damage caused to the carrier resulting from incorrect information relating to the goods entrusted to him for transportation.

With specific reference to the weight, it should also be borne in mind that, starting from 01.07.2016, the "shipper" is obliged to weigh the containers intended for export. This obligation is governed by regulation VI / 2 of the Solas 74 Convention, as amended by the MSC resolution. 380 (94) of 21.11.2014, and has the aim of guaranteeing the safety of ships, crews, cargo and more generally the safety of navigation.

In essence, the "shipper" is required to weigh the container according to the methods governed by the guidelines provided by the IMO, implemented in Italy with Managerial Decree 447/2016 of the MIT and to transmit to the carrier the weighing certificate "VGM - Verified Gross Mass".

Containers without VGM cannot be embarked, and the VGM certificate must be kept for at least three months after landing.

3. Preparation of the goods for transport

Among the obligations of the "shipper" there is that of adequately preparing the goods for transport, which entails the correct packaging and stowage of the same in the container.

The incorrect preparation of the goods for shipping, in fact, means that:

a) The carrier is not liable for damage to the goods occurred during transport. In fact, according to the rules of The Hague - Visby which regulate the responsibility of the maritime carrier in the transport represented by bill of lading, the act or omission of the shipper / owner of the goods, or of his agent and / or representative, constitutes one some CD except for dangers that allow the shipping carrier to be exempt from vector liability;

b) The "shipper" responds to the damage caused to the carrier due to the bad packaging / lashing of the goods inside the container.

4. Cooperation in loading operations

Finally, among the obligations of the "shipper" there is that of cooperation with the carrier in loading operations.

In the transport of goods on the bill of lading, this obligation of cooperation is expressed in the presentation of the goods in time for loading on the ship.

In transports regulated by a "voyage charter party", or rather travel rental where the risk of longer travel is borne by the carrier, the "shipper / charterer" must complete the loading and unloading operations within a certain period of time agreed (stallie), beyond which it is required to pay a "counter-fee" fee for the entire remaining duration of the operations.

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