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FIOST - Free In and Out Stowed and Trimmed

Conversion


Expenses and risk, At the
Last updated: 28-Nov-2015

Flaux J in Societe De Distribution De Toutes Merchandises En Cote D’Ivoire (t/a "SDTM-CI") & Ors v Continental Lines N.V. & Anor [2015] EWHC 1747 (Comm) at para 37, 39:

37. Despite the limited assistance to be derived from those arbitration awards, as I have already indicated, I consider that, on the basis of the decisions in The Alexandros P [1986] 1 Lloyd’s Rep 421 and The Fantasy [1991] 2 Lloyd’s Rep 391, and construing this charterparty as a whole, the words: "at the expenses and risk of Shippers/Charterers" (in the case of loading) and "at the expenses and risk of Receivers/Charterers"(in the case of discharge) in clause 5 are sufficiently clear to transfer responsibility for loading and discharge and for any shortcomings in those operations to the charterers and the cargo interests. Given the equation in those authorities between risk and responsibility, it is nothing to the point that, in the first sentence, responsibility is imposed on the charterers/cargo interests for loading and discharge by making those operations at their "expense and risk", whereas in the later sentence, responsibility for stowage is imposed on the carrier by a specific provision that stowage is the responsibility of the Master.

39. If the cargo interests are correct that the words: "Cargo shall be loaded, spout trimmed and/or stowed at the expenses and risk of Shippers/Charterers" do not transfer responsibility for cargo operations to the charterers, but that responsibility rests with the carrier, then the later sentence: "Stowage shall be under Master’s direction and responsibility" is completely pointless and otiose, because stowage, like loading and discharge, would be the carrier’s responsibility anyway at common law. On the other hand, whilst the carrier’s construction does create an inconsistency, the fact that the opening words of the clause transfer responsibility for the cargo operations to the charterers does at least make sense of the sentence: "Stowage shall be under Master’s direction and responsibility", namely that it is making it clear that responsibility for stowage remains with the carrier. Absent that sentence, that responsibility would be with the charterers/cargo interests.


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