Carriage of goods by sea: documents, Hague-Visby and Hamburg Rules

1. Contracts of affreightment

Goods go by sea either under a charterparty, where a whole ship is hired for a voyage (voyage charter) or a period (time charter), the terms being freely negotiated; or as general cargo on a liner under a bill of lading, on the carrier's standard terms. Because the shipper of general cargo has no bargaining power, mandatory rules protect him: the Hague Rules (1924), amended by the Visby Protocol (1968) and the SDR Protocol (1979), together the Hague-Visby Rules. Charterparties are outside the Rules, but a bill of lading issued under a charterparty is governed by them once it is in the hands of a third party. In British India Steam Navigation Co. Ltd. v. Shanmughavilas Cashew Industries, 1990 INSC 85, (1990) 3 SCC 481, the Supreme Court held that the responsibility of the charterer and the owner had to be read from the charterparty and the bill of lading together, and that an agreed jurisdiction and choice-of-law clause in the bill of lading bound the parties.

2. Documents in a sea shipment

• Shipping bill filed with customs for export clearance (Customs Act, 1962, section 50), and the let export order.
• Commercial invoice and packing list.
• Mate's receipt: issued by the ship's officer on loading, exchanged for the bill of lading.
• Bill of lading or sea waybill.
• Insurance policy or certificate.
• Certificate of origin, inspection or quality certificate (Export Inspection Council or private agency), phytosanitary or health certificates where required.
• Charterparty, where the goods move under one.
• Delivery order at destination, the bill of entry filed by the importer (section 46), and the ship's manifest.
• Bill of exchange and the letter of credit where payment is documentary.

3. The bill of lading

It has three functions:

• Receipt for the goods, stating the leading marks, number of packages or quantity, and apparent order and condition (Hague-Visby Rules, Article III(3)). It is prima facie evidence of receipt, and conclusive once transferred to a third party in good faith (Article III(4)). Section 4 of the Bills of Lading Act, 2025 makes a bill representing goods as shipped conclusive evidence of shipment against the master or signatory in the hands of a consignee or endorsee for value, unless he had actual notice that the goods were not loaded.
• Evidence of the contract of carriage; the contract is usually made earlier, on booking.
• Document of title: transfer of an order bill by endorsement and delivery transfers constructive possession of the goods. Section 2 of the Bills of Lading Act, 2025 vests in the consignee or endorsee to whom property passes all rights of suit and subjects him to the same liabilities as if the contract had been made with him. Section 3 preserves stoppage in transit and the claim for freight against the shipper.

Kinds: shipped and received-for-shipment bills (Article III(7)); clean and claused (noting defects); order, bearer and straight bills; through and combined transport bills; short-form bills; and stale bills, presented too late for a letter of credit. Section 5 of the Carriage of Goods by Sea Act, 2025 requires every bill issued in India to state that it has effect subject to the Schedule.

4. The Carriage of Goods by Sea Act, 2025

Act 19 of 2025, in force from 10 September 2025, gives the force of law to the Hague-Visby Rules, as modified, in its Schedule. Section 3 applies the Rules to carriage by sea in ships carrying goods from any port in India to any other port in or outside India; inbound shipments are governed by the law of the bill of lading, usually also the Hague or Hague-Visby Rules. Section 4 removes the common law's absolute undertaking of seaworthiness, replacing it with due diligence. Section 12 repeals the Indian Carriage of Goods by Sea Act, 1925, which had enacted only the original Hague Rules.

Duties of the carrier (Article III)

• Before and at the beginning of the voyage, to exercise due diligence to make the ship seaworthy, properly man, equip and supply it, and make the holds and refrigerated spaces fit and safe for the cargo (Article III(1)).
• To properly and carefully load, handle, stow, carry, keep, care for and discharge the goods (Article III(2)).
• To issue a bill of lading on demand (Article III(3)).
• Any clause relieving the carrier of these duties or lessening his liability below the Rules is void (Article III(8)).

Immunities of the carrier (Article IV)

No liability for loss from unseaworthiness unless caused by want of due diligence, the burden of proving due diligence being on the carrier (Article IV(1)). Under Article IV(2) neither carrier nor ship is responsible for loss or damage arising from:

• (a) act, neglect or default of the master, mariner, pilot or servants in the navigation or management of the ship (the nautical-fault exception);
• (b) fire, unless caused by the actual fault or privity of the carrier;
• (c) perils of the sea; (d) act of God; (e) act of war; (f) public enemies; (g) arrest or restraint of princes, rulers or people, or seizure under legal process; (h) quarantine;
• (i) act or omission of the shipper or owner; (j) strikes or lock-outs; (k) riots and civil commotions; (l) saving or attempting to save life or property at sea;
• (m) wastage or loss from inherent defect, quality or vice of the goods; (n) insufficiency of packing; (o) insufficiency of marks; (p) latent defects not discoverable by due diligence; and
• (q) any other cause arising without the actual fault or privity of the carrier or the fault or neglect of his agents or servants, the burden of proof being on the carrier.

Limits and time bar

• Limit (Article IV(5)(a)): 666.67 SDR per package or unit, or 2 SDR per kilogram of gross weight, whichever is higher, unless the nature and value were declared and inserted in the bill. For containers, the packages enumerated in the bill as packed in the container count (Article IV(5)(b)). The limit is lost if the damage resulted from an act done with intent to cause damage or recklessly with knowledge that damage would probably result.
• Notice (Article III(6)): at the time of removal, or within three days if the loss is not apparent; otherwise removal is prima facie evidence of delivery as described.
• Time bar (Article III(6)): one year from delivery or the date goods should have been delivered, extendable by agreement after the cause of action arises. The Indian Schedule adds a proviso allowing a suit within a further period of not more than three months as allowed by the court.

5. Deviation

The carrier must follow the usual or agreed route. An unjustified deviation was at common law a fundamental breach that displaced the contract's exceptions (Hain Steamship Co. v. Tate & Lyle, 1936). Justified deviations are: to save life (and, under the Rules, property) at sea; to avoid danger to the ship or cargo; deviation caused by unseaworthiness not due to the carrier's fault; and deviation authorised by the contract. Article IV(4) adds that any reasonable deviation is no breach. In Stag Line Ltd. v. Foscolo, Mango & Co. (House of Lords, 1932), going off course to drop engineers who had been testing equipment was reasonable, but continuing along the coast to land them and losing the ship was not. Section 48 of the Marine Insurance Act, 1963 discharges the insurer from the time of an unexcused deviation.

6. Freight

Freight is the remuneration payable to the carrier for carrying goods. At common law it is earned only on delivery at destination, and is not reduced because the goods arrive damaged (Dakin v. Oxley, 1864); the cargo owner must claim damages separately. Kinds: advance freight, payable on shipment and not returnable if the goods are lost, so it is insurable; lump-sum freight, for the use of the whole or part of a ship; pro rata freight, for part of the voyage where the owner agrees to take the goods short of destination; dead freight, damages for failure to load a full cargo; and back freight, for carrying goods back or on where delivery cannot be made. The carrier has a lien on the goods for freight due on delivery.

7. The Hamburg and Rotterdam Rules

The UN Convention on the Carriage of Goods by Sea, 1978 (Hamburg Rules), prepared by UNCITRAL at the request of developing countries, entered into force on 1 November 1992. India is not a party. It differs from Hague-Visby in that: liability rests on presumed fault, the carrier being liable unless he proves that he and his servants took all measures that could reasonably be required (Article 5); the nautical-fault and fire exceptions in their Hague form are abolished; it covers deck cargo, live animals and delay; the period of responsibility is the whole time the goods are in the carrier's charge at the ports of loading and discharge (Article 4); limits are higher (835 SDR per package or 2.5 SDR per kilogram; delay, two and a half times the freight); and the limitation period is two years. Its parties are mostly smaller trading States, so it has not displaced Hague-Visby.

The Rotterdam Rules (2008) cover door-to-door carriage involving a sea leg and electronic transport records, but are not in force.

How this is examined

For the documents question, list and explain each document, giving most space to the bill of lading. For carriers' liabilities and immunities, give Article III duties, Article IV(1) and the list in IV(2), the limits and the time bar, all under the 2025 Act. For the Hamburg Rules, write them as a set of contrasts with Hague-Visby. Always state that the 1925 and 1856 Acts were repealed from 10 September 2025.