Carriage of goods by sea and bills of lading

International conventions

Are the Hague Rules, Hague-Visby Rules, Hamburg Rules or some variation in force and have they been ratified or implemented without ratification? Has your state ratified, accepted, approved or acceded to the UN Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea? When does carriage at sea begin and end for the purpose of application of such rules?

Estonia signed the International Convention for the Unification of Certain rules of Law Relating to Bills of Lading (Hague Rules) in 1924 but did not ratify it. Regardless of this, most Estonian shipping companies base their international contracts of carriage of goods by sea on the Hague Rules as amended by the 1976 Protocol (the Hague-Visby Rules). The Hamburg Rules have not been ratified by Estonia. However, many principles laid down in the Hamburg rules were implemented into the MSA, which is mandatory for Estonian cabotage carriage of goods by sea. The MSA stipulates that the carrier shall be liable for the loss of or any damage to the goods caused between the time the goods are accepted for carriage (by the carrier) and the time these are delivered (paragraph 25), which corresponds to the principles of the Hamburg Rules. The goods are deemed to have been delivered if the consignee or its representative (or third-party holder of the bill of lading) has acquired direct possession of the goods or in certain case the goods are stored or deposited at the port of destination is such a way that they are available to the consignee (or third-party holder of the bill of lading).

The UN Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (the Rotterdam Rules) are under consideration in Estonia and no decision in respect of this is expected soon.

Multimodal carriage

Are there Conventions or domestic laws in force in respect of road, rail or air transport that apply to stages of the transport other than by sea under a combined transport or multimodal bill of lading?

Estonia has ratified the Convention on the Contract for the International Carriage of Goods by Road (CMR) on 3 May 1993, the Convention for the Unification of Certain Rules Relating to International Carriage by Air (1929 Warsaw) on 16 March 1998, the Convention for the Unification of Certain Rules for International Carriage by Air (1999 Montreal) on 10 April 2003 and the Convention Concerning International Carriage by Rail on 20 August 2008.

Estonia has regulated domestic transport of passengers by the Public Transport Act adopted on 26 January 2000.

Title to sue

Who has title to sue on a bill of lading?

The consignee or third-party holder of the bill of lading has title to sue. The shipper has title to sue on the basis of bill of lading only in case if the shipper itself is consignee stipulated in the bill of lading (MSA paragraph 38(3)). The shipper can sue the carrier on the basis of the contract of carriage of goods.

Charter parties

To what extent can the terms in a charter party be incorporated into the bill of lading? Is a jurisdiction or arbitration clause in a charter party, the terms of which are incorporated in the bill, binding on a third-party holder or endorsee of the bill?

As a general rule the terms of the charter party can be incorporated into the bill of lading and these are binding to the third-party holder or endorsee of the bill (MSA paragraph 38(2)). However, the arbitration clause has specific requirements for its validity to the parties. Thus, third parties can easily object to the arbitration clause incorporated into the bill of lading with reference to the charter party. There is no case law on this subject matter yet.

Demise and identity of carrier clauses

Is the ‘demise’ clause or identity of carrier clause recognised and binding?

The issues covered by the ‘demise’ clause and the identity of carrier clause are covered by the concept of ‘actual carrier’ introduced into Estonian maritime laws in 2002. Based on this, the actual carrier is liable for loss of or damage or delay of the cargo jointly and severally with the contractual carrier if the damage is caused during the period when the goods are being carried by the actual carrier. An agreement between the contractual carrier and the shipper or consignee regarding non-application of the limits of liability specified in the Act or extension of the liability of the carrier applies to the actual carrier only if the actual carrier has agreed thereto in writing (MSA paragraph 34(1)). The actual carrier may present the same objections against a claim submitted against the actual carrier as may be presented by the contractual carrier (MSA paragraph 34(2)).

Shipowner liability and defences

Are shipowners liable for cargo damage where they are not the contractual carrier and what defences can they raise against such liability? In particular, can they rely on the terms of the bill of lading even though they are not contractual carriers?

Shipowners may be liable for cargo damage depending on the circumstances and the terms of the contract of carriage of goods and the charter party. A shipowner can rely on the terms of the bill of lading if it can be considered as the actual carrier of the damaged cargo.

Deviation from route

What is the effect of deviation from a vessel’s route on contractual defences?

The carrier shall not be liable for violation of the contract for the carriage of cargo, including any deviation from a vessel’s route, if the violation was caused by taking necessary measures to rescue persons or salvage property at sea.

Liens

What liens can be exercised?

The carrier has a lien on cargo and cargo documents to secure its claims arising from: the contract for the carriage of cargo and claims arising from earlier contracts of carriage; forwarding contracts; and storage contracts entered into with the shipper according to the Merchant Shipping Act.

Delivery without bill of lading

What liability do carriers incur for delivery of cargo without production of the bill of lading and can they limit such liability?

The carrier is obliged to deliver the goods to the consignee (or third-party holder of the bill of sale) only if the bill of lading is returned to the carrier and the consignee (or third-party holder) provides a signature concerning the fact that delivery of goods has been taken place (MSA paragraph 45). If the carrier violates this obligation then the carrier can be liable for loss of goods before rightful consignee (or third-party holder). In such a case, the carrier cannot limit its liability on the basis of the liability limitation regimes established for the carriage of goods. If several holders of originals of the bill of lading claim delivery of the goods, the carrier is obliged to arrange to have the goods stored or deposited on the account of the rightful owner of the goods and shall inform the holders of the bill of lading claiming delivery of the goods thereof.

Shipper responsibilities and liabilities

What are the responsibilities and liabilities of the shipper?

If the goods require special care upon loading, unloading or during carriage, the shipper is obliged to inform the carrier in good time and shall indicate the measures that may be needed (MSA paragraph 9). In the case of dangerous goods, the shipper is obliged to inform the carrier of the nature of the danger in good time in writing (MSA paragraph 8). Before the goods are delivered to the carrier, the shipper is obliged to place the documents and information that is necessary for the loading and unloading of the goods and for conducting other formalities related to carriage, in particular for customs clearance, at the disposal of the carrier (MSA paragraph 10). The carrier is entitled to demand from the shipper the information and documents necessary for the issue of a bill of lading (MSA paragraph 40(2)).