Sunday, December 16, 2018 | ePaper

Imposition of legal duty enjoins legal right

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(From previous issue) :
25. Scrutton on Charter Parties and Bills of Lading, 19th Edition (1984) at para 2 describes a bill of lading as follows;
"After the goods are shipped, a document called a bill of lading is issued, which serves as a receipt by the ship-owner, acknowledging that the goods have been delivered to him for carriage ... the bill of lading serves also as;
1. Evidence of the contract of affreightment between the shipper and the carrier,
2. A document of title, by the endorsement of which the property in the goods for which it is a receipt may be transferred, or the goods pledged or mortgaged as security for an advance.
By statute, the rights and liabilities of the shipper under the contract of affreightment as set out in the bill of lading may be transferred with the full property in the goods to the consignee of the goods or the indorsee of the bill of lading."
26. From the statement by the editors of the 19th edition of Scrutton (at 384);
"A house bill of lading issued by a forwarding agent acting solely in the capacity in the agent to arrange carriage is not a bill of lading at all but at most a receipt for the goods coupled with an authority to enter into a contract of carriage on behalf of the shipper. It is not a document of title, nor within the Bills of Lading Act, 1855 and it is unlikely that it would ever be regarded as a good tender under a cif-contract." [Emphasis added]
27. Therefore, a document is not a bill of lading merely because that is what the purpose called it.
Section 7 of the Article' 1 of PART I  of the United Nations Convention on the Carriage of Goods by Sea ("Hamburg Rules") define what is bill of lading which runs thus:
7. "Bill of lading" means a document which evidences a contract of carriage by sea and the taking over or loading of the goods by the carrier, and by which the carrier undertakes to deliver the goods against surrender of the document. A provision in the document that the goods are to be delivered to the order' of a named person, or to order, or to bearer, constitutes such an undertaking.
28.    Section 2 of Article 14 of the PART IV of  the United Nations Convention on the Carriage of Goods by Sea ("Hamburg Rules") says that the bill of lading may be signed by a person having authority from the carrier. A bill of lading signed by the master of the ship carrying the goods is deemed to have been signed on behalf of the carrier.
29. Under the UCP 600-Article 24 relates to bill of lading. A bill of lading, however named, must appear to;.
"a. A Road, rail- or inland waterway transport document however nameed must appear to
i. indicate the name of the carrier and: -be signed by the carrier or a named, agent for
or on behalf of the carrier or indicate receipt of the goods  by signature, stamp or notation by the carrier or a named agent for or on behalf of the carrier.
Any signature, stamp or notation of receipt of the goods by the carrier or agent must be identified as that of the carrier or agent.
Any signature stamp or notation of receipt of the goods by the agent must indicate that the agent has signed or acted for or on behalf of the carrier.
30. If a rail transport document does not identify the carrier, any signature or stamp of the railway company will be accepted as evidence of the document being signed by the carrier.
a(i). indicate the date of shipment or the date the goods have been received for shipment, dispatch or carriage at the place stated in the credit. Unless the transport document contains a dated reception stamp, an  indication of the date of receipt or a date of shipment, the date of issuance of the transport document will be deemed to be the date of shipment.
(ii) indicate the place of shipment and the place of destination stated in the credit.
b. i. A road transport document must appear to be the original for consignor or shipper or bear no making indicating for whom the document has been prepared.
ii. A rail transport document marked "duplicate" will be accepted as an original.
(iii) A rail or inland waterway transport document will be accepted as an original whether marked as an original or not
c. In the absence of an indication on the transport document as to the number of originals issued, the number presented will be deemed to constitute a full set.
d. For the purpose of this article, transshipment means unloading from one means of conveyance and reloading to another means of Conveyance, within the same mode of transport, during the carriage from the place of shipment, dispatch or carriage to the place of destination stated in the credit.
e. i. A road, rail or inland waterway transport document may indicate that the goods will or may be transshipped provided that the entire carriage is covered by one and the same transport document.
ii. A road, rail or inland waterway transport document indicating that transshipment will or may take place is acceptable, even, if the credit prohibits transshipment.
31. On a plain reading of Article 24 of the UCP-600, it is abundantly clear that a house bill of lading is not a bill of lading.
32. According to sub- Article (b) of Article 1 the carriage of goods by Sea Act 1925 which says that the "Contract of carriage" applies only to Contracts of carriage covered by a bill of lading or any similar document of title, in so far as such document relates to the carriage of goods by sea including any bill of lading or any similar document as aforesaid issued under or pursuant to a charter party from the moment at which such bill of lading or similar document of title regulates the relations between a carrier and a holdero of the same.
33. After receiving the goods into his charge, the carrier, or the master or agent of the carrier, shall, 0n demand of the shipper, issue to the shipper a bill of lading (Section 3 of the ARTICLE III of the SCHEDULE of the carriage of goods by Sea Act 1925).
34. The bill of lading can be treated as conclusive evidence as between the carrier and a receiver and as at least prima facie evidence as between the carrier and the shipper, as to the number or weight or quantity and apparent order and condition of the cargo on loading (see Section 7 of the ARTICLE III of the SCHEDULE of the Carriage of Goods by Sea Act, i925; Hague and Visby Rules, Article III, rule 4; the Hamburg Rules, Article 16(3).

35. After the goods are loaded, the bill of lading to be issued by the carrier, master .of agent of the carrier, to the shipper. (Section 7 of the ARTICLE III of the SCHEDULE of the Carnage of Goods by Sea Act, 1925.) .
36. Under The Hage- Visby rules carrier includes the owner or charterer who enters into a contract of carriage with a shipper [Article I (a)].
37. Under the Hamburg Rules carriers conclude a contract of carriage of goods by sea with a shipper. These Rules also cover actual carriers, which include any person entrusted by the carrier to perform all or part of the carriage of the goods.
"Carrier" includes the owner or the charterer who enters into a contract of carriage with a shipper (sub-Article (a) of the ARTICLE I of the SCHEDULE of the Carriage of Goods by Sea Act, 1925.)
38. According to sub-Article (a) of the ARTICLE  I of the SCHEDULE of the Carriage of Goods by Sea Act, 1925 a freight forwarder is neither as owner nor as charterer of the vessel has any authority to issue any bill of lading.
39. In order to get delivery order from the carrier as well as for getting payment under the letter of credit, it mandatorily requires presenting "ocean bill of lading/master bill of lading and none else."
40. Freight forwarder is an entity that secures the business of various exporters and importers and has the ability/facility to store, distribute their clients' cargoes in addition to negotiating freight rates on behalf of the clients, process all relevant customs, port and government documentation on behalf of their clients either directly or through 3rd party sources.
41. The general purpose of issuing a HBL is if the forwarder in question wants to control the cargo and not leave it under the direct control of the line, and also since there will be variation in freights between the HBL and MBL. But there is nothing stopping a forwarder from issuing a HBL using the EXACT same details as the MBL, but it's just that such an issuance would be superfluous. Not only superfluous, but it will then mean that there are two documents of title to the same shipment which cannot be the case.
42. Freight  Forwarder taking more responsibility than required or permitted by law certainly violates Freight Forwarding Agents (Licensing and Administration) Rules 2008 and Guideline for Foreign Exchange Transactions (GFET), 2009. (as of 31-5-2009).
43. Therefore, a house bill of lading issued by a forwarding agent acting solely in the capacity of the agent to arrange carriage is not a bill of lading at all, but at the most a receipt for the goods coupled with an authority to enter into a contract of carriage on behalf of the shipper. It is not a document of title, nor within the Bills of Lading Act, 1855 and it is unlikely that it would ever be regarded as a good tender under a cif-contract.
44. Section 8 of Chapter 8 of the Guidelines for Foreign Exchange Transactions (GFET), 2009(as of 3 1 -5-2009) is only for carriers, Section 8 clearly says that;
"8. In exercise of powers vested in the Bangladesh Bank under Section 20(3) of the FER Act, all carriers whether common or private (Railway, Shipping oro Airline companies) and their agents are directed as under:
(i)……………………………………………………………………………………..
(ii)…………………………………………………………………………….
45. Since, admittedly the petitioners are not carriers; therefore, this section has no manner of application to them.
It is a well settled principle of law that in order to get a Rule of mandamus the  petitioners must show that their claim is rooted in the statute or statutory Rule.
46. So, it has always required that the applicant for a mandamus should have a legal specific right to enforce the performance of those duties.
47.    In the case of Queen vs Guardians of the Lewisham Union, reported in (1897) 1 QB 498 it was observed; ,
"This court would be far exceeding its proper functions if it were to assume jurisdiction to enforce the performance by Public bodies of all their statutory duties without requiring clear evidence that the person who sought its interference had a legal right to insist upon such performance.
48.    In the case of Talekhal Progressive Fisherman Co-operative Society Ltd. vs Bangladesh reported in 1981 BLD (AD) 103 wherein it has been observed:
"In order to entitle a person to ask for performance of any public duty by mandamus it is necessary to show that he has a legal right for claiming such performance part from the fact that he is interested in the performance of the duty."
49.    The case of National Engineers vs Ministry of Defence reported in 44 DLR (AD) (1992) 179 our Apex Court held thus:
"In order to enforce the performance by public bodies of any public duty by mandamus, the applicant must have a specific legal right to insist upon such performance".
50.    A writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the public bodies and there is a failure on the part of those public bodies to discharge their statutory obligations. The paramount function of a writ is to compel performance of public duties prescribed by statute and to keep public bodies exercising public functions within the limits of their jurisdiction. Therefore, mandamus may issue to compel the public bodies to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance.
S1, In the cases in hand, the petitioners have completely failed to show us any legal right under the statute to enforce its performance rather their claims are amorphous fallacious and absolutely based on erroneous notion and as such instant writ petitions are not maintainable in Jaw.
52.    In the result, the Rules are discharged without any order as to cost.
Communicate the judgment and order at once.

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