History and Development of The Bill of Lading: Institutional Repository

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University of Miami Law Review
9-1-1983
History and Development of the Bill of Lading

Daniel E. Murray
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Daniel E. Murray, History and Development of the Bill of Lading, 37 U. Miami L. Rev. 689 (1983)
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History and Development of the Bill of
Lading
DANIEL E. MURRAY*
The author reviews the history and development of bills of

lading. The discussion focuses primarily on the legislative and
judicial treatment of the carrier's liability for misrepresenta-
tions of quantity and quality in the bill of lading. Also explored
are carrier-shipper indemnity agreements, European ap-
proaches to these issues, and the effect of several recent inter-
national conventions on uniform bills of lading.
I. HISTORY AND DEVELOPMENT OF THE CLEAN BILL OF LADING ................. 690

A. Common Law Before 1851 ......................................... 690
B. Common Law After 1851 .......................................... 692
1. CARRIER LIABILITY FOR QUANTITY RECITALS IN THE CLEAN BILL OF LADING 693
a. Disclaim ers of Liability .................................... 693
b. Detrimental Reliance and Disclaimers ....................... 696
c. The Lien Theory of Carrier Liability ....................... 699
2. CARRIER LIABILITY FOR QUALITY RECITALS IN THE CLEAN BILL OF LADING 700
C. Statutory Developments ........................................... 703
II. THE CLEAN BILL OF LADING TODAY ...................................... 709
A. Limitations of CarrierLiability .................................... 710
B. CarrierLiability to the Consignee or Buyer of the Clean Bill of Lading 713
III. THE CLEAN BILL OF LADING AS CONSIDERATION FOR THE SHIPPER'S AGREEMENT
TO INDEMNIFY THE CARRIER ............................................. 716
IV. THE EUROPEAN LAW OF BILLS OF LADING ................................. 723
A. Italy ...................... ........................................ 7 23
B. France ........................................................... 725
C. Germ any ......................................................... 725
V. INTERNATIONAL CONVENTIONS AFFECTING BILLS OF LADING .................. 727
V I. C ONCLUSION ........................................................... 732
Before the advent of air travel, sellers would send goods to a

distant buyer by sea. Even today, the carriage of goods by sea con-
stitutes a significant portion of all long-distance commercial trans-
actions. In a typical transaction, a shipper delivers goods to a car-
rier ship. The carrier, the ship's captain, or a clerk then issues a
bill of lading. The bill of lading is an acknowledgment by the car-
rier that it has received goods for shipment; it includes an agree-
ment to transport these goods to the consignee or his assignees at a
specified destination. A bill normally contains statements concern-
* Professor of Law, University of Miami.

UNIVERSITY OF MIAMI LAW REVIEW [Vol. 37:689
ing the nature, quality: and quantity of the goods. These state-
ments reflect either the shipper's representations to the carrier or
the carrier's notations from its own inspection of the goods. If the
bill of lading specifically notes the defective condition of the goods
or their packaging, it is "claused" or "fouled." If no defects are
noted, it is called a "clean" bill of lading.
The duty of an ocean carrier to transport goods safely is be-
yond cavil. But what has been disputed historically is the extent of
the carrier's liability to the consignee of the goods or to the buyer
of the bill of lading based upon the carrier's issuance of the bill.
The issue of the carrier's liability for misrepresentations in the bill
of lading arises in two factual situations: 1) when language in the
bill purports to limit the carrier's liability for misrepresentation of
the nature, quality, or quantity of the goods, and 2) when the car-
rier has entered into an indemnity contract with the shipper by
which the latter agrees to hold the carrier harmless against claims
based on an inaccurate bill of lading.
This article examines the judicial and legislative treatment of
these issues, discusses the rights of the consignee or holder of a bill
of lading who is damaged by misrepresentations in the bill, and
describes several European approaches to the issue of the respec-
tive liabilities of shippers and carriers. Finally, the article consid-
ers the impact of several international conventions on uniform bill
of lading requirements.
I. HISTORY AND DEVELOPMENT OF THE CLEAN BILL OF LADING
A. Common Law Before 1851

Bills of lading1 came into common use in the sixteenth cen-
tury.2 Most of these merely recited the quantity of packages or
bales shipped. A few of these early bills, however, referred to the
condition, of the goods. Such references were most frequently
1. BLACK'S LAW DICTIONARY 152-53 (5th ed. 1979). Bills of lading were apparently not of
legal significance until the sixteenth century. The Laws of Oleron (c. 1200) (originally
promulgated by Eleanor, Duchess of Guienne, the mother of Richard I of England), re-
printed in 1 ADMIRALTY DECISIONS IN THE DISTRICT COURT OF THE UNITED STATES, FOR THE
PENNSYLVANIA DISTRICT at v app. (R. Peters ed. 1807) [hereinafter cited as ADMIRALTY DECI-
SIONS], the Laws of Wisbuy (c. 1266), reprinted in 1 ADMIRALTY DECISIONS, supra at lxix
app., and the Laws of the Hanse Towns (c. 1597), reprinted in 1 ADMIRALTY DECISIONS,
supra at xlvi app., do not refer to bills of lading.
2. Mercantile and shipping cases involving bills of lading were frequent by the six-
teenth century. See Marsden, Introduction to 1 SELECT PLEAS IN THE COURT OF ADMIRALTY
at lxvii (Selden Society Pub. No. 6, 1892).
19831 BILLS OF LADING
found in bills for goods shipped from Spain or goods owned by

Spaniards. For example, in 1544 a bill of lading was issued in Ca-
diz, Spain, which contained a statement that the master of a ship
had received "112 bags of allam whiche goyth for tonne pype
markyd with the marke in the margent to be delyveryd well con-
dyshioned in the ryver of Themys." s Two years later, a bill was
issued in Flanders to a Spaniard residing in Bruges in which the
master stated, "The wiche fardells and bailes I knowledge to have
receyved of yow John de Fica Spaynyard drye and wel condicioned
whiche I shall delyver God preservinge me and my shipp."4 By
1549, statements of the condition of shipped goods were becoming
even more specific, as illustrated by a bill issued in Bordeaux in
which the master acknowledged receipt of the "nombre and
quantetie of one hundreth and fyftie tonnes of wyne full and ul-
lagid, which wynes the sayede maister confessyth to have receyved
for the sayede Naudyn Revell." 5 This trend toward more sophisti-
cated bills of lading continued. A 1554 bill limited the carrier's lia-
bility for damages caused by dangerous seas: "[X]v tonne ij pon-
chions of wyne and a barrell of apples all marked with this marke
for to be consigned and well condicioned from this aforesaid toune
of Roan unto the citie of London exceptid the casalties and dan-
gers of the sea.""
By 1802, merchants had established several principles gov-
erning bills of lading. The Marine Ordinances of Louis XIV made
the master "answerable for all the goods laded aboard his ship,
which he shall be obliged to deliver according to the bills of lad-
ing."7 Clauses certifying the condition of the goods were no longer
discretionary; all bills were required to "contain the quality, quan-
tity, and mark of the goods." 8 The ordinances also recognized the
need to limit the liability of a master who signed a bill indicating
the condition of goods shipped in containers or packages. Because
the master could not know their actual condition, it became cus-
tomary that "by the quality the exterior and apparent quality only
3. Id. at 126-27.
4. Id. at 127.
5. 2 SELECT PLEAS IN THE COURT OF ADMIRALTY 59-60 (Selden Society Pub. No. 11,
1897).
6. Id. at 61.
7. Marine Ordinances of Louis the XIV, book II, tit. I, art. IX (1681), reprinted in 2
ADMIRALTY DECISIONS, supra note 1, at vi app.
8. Id. book III, tit. II, art. II, reprintedin 2 ADMIRALTY DECISIONS, supra note 1, at xxiii
is meant." It became the usual practice for a master to insert in

the clean bill of lading a clause indicating that his statements of
quality and quantity were based on the shipper's representations.
Qualifying or clausing the bill of lading protected the master if a
dispute arose as to the quantity or quality of the goods. 10
Prior to the 1851 English case of Grant v. Norway," American
decisions favored the third-party consignee, who relied on the rep-
resentations in the bill of lading, over the carrier. In fact, the
courts generally considered representations in a bill of lading to be
conclusive evidence against the carrier in an action brought by a
consignee. 12 In 1810, the Supreme Court of Massachusetts held
that a carrier was estopped from contradicting a recital in a bill of
lading that it had issued. 13 Similarly, the Supreme Court of New
York held that when the bill of lading recited that seventy tons of
coal had been received by the carrier, the carrier was estopped
from proving that it had received only sixty tons from the
4
shipper.1
The legal ramifications of the bill of lading continued to evolve
in the nineteenth century. During this time, English and American
courts applied similar rules regarding the carrier's liability under
bills of lading.'
B. Common Law After 1851
The scope of a master's authority to bind the owner of the
carrier by a false recital in a bill of lading became a crucial issue at
common law. As an agent of the ship owner, the master undisput-
edly had some authority to bind the owner by recitals in a bill. The
master's authority was not, however, unlimited. English and Amer-
ican courts during this period defined the master's authority by
looking to the type of recital at issue.
9. C. AsOTT, A TREATISE OF THE LAW RELATIVE TO MERCHANT SHIPS AND SEAMEN 177
(1802).
10. Charles Abbott, an early nineteenth-century historian, stated that a clean bill of
lading should be qualified "[i]f there is any dispute about the quantity or condition of the
goods or if the contents of casks or bales are unknown." Id. at 176.
11. 10 C.B. 665, 138 Eng. Rep. 263 (C.P. 1851); see infra notes 20-23 and accompanying
text.
12. Between the shipper of goods and the carrier, the bill of lading was simply a receipt;
discrepancies between the quantity or quality of the goods received and the representations
in the bill of lading could be explained. See Dickerson v. Seelye, 12 Barb. 99 (N.Y. App. Div.
1851).
13. Portland Bank v. Stubbs, 6 Mass. 422 (1810). The carrier sought to prove by parol
evidence that the bill of lading reciting that freight had been paid was false. Id. at 425.
14. Dickerson v. Seelye, 12 Barb. 99 (N.Y. App. Div. 1851).
15. See G. GILMORE & C. BLACK, THE LAW OP ADMIRALTY 139-42 (2d ed. 1975).
In the landmark case of Grant v. Norway,"' an English court

addressed the scope of a master's authority and established a doc-
trine that profoundly influenced the common law of both the
United States and England. In Grant the ship's master fraudu-
lently signed a bill of lading stating that twelve bales of silk had
been loaded on board. In fact, the master had loaded no silk. A
third-party pledgee, who had relied on the false representation,
brought suit against the shipowner based on the bill. The court
held that the owner of the ship was not liable for the master's mis-
representations because "the general usage gives notice to all peo-
ple that the authority of the captain to give bills of lading, is lim-
ited to such goods as have been put on board. ' 17 Relying solely on
established custom, the court defined the scope of the master's
agency: The master had the authority to sign bills of lading recit-
ing the quality or condition of goods actually received, but lacked
the authority to sign for goods not received on board. Therefore,
the master's signature on a bill of lading falsely reciting that cer-
tain goods had been loaded on the ship did not subject the owner
of the vessel to liability.18
The distinction' between statements on a bill of lading refer-
ring to quantity and those referring to quality of goods presented
English and American courts with difficulty as they attempted to
define further the scope of the master's authority to bind the
carrier."'
1. CARRIER LIABILITY FOR QUANTITY RECITALS IN THE CLEAN BILL

OF LADING
a. Disclaimers of Liability
The rule announced in Grant v. Norway" was quickly reaf-
firmed in two other English cases. In Hubbersty v. Ward,21 the
court held that the shipowner was not liable when the ship's
master negligently issued two bills of lading for the same cargo.
16. 10 C.B. 665, 138 Eng. Rep. 263 (C.P. 1851).

17. Id. at 272.
18. Id.
19. It is submitted that the distinction between the carrier's liability for the bill's recit-
als of quantity and for those of quality or condition should not be legally significant. The
distinction is more apparent than real. To a third-party consignee or pledgee, misstatements
of either type are equally likely to cause financial loss.
20. 10 C.B. 665, 138 Eng. Rep. 263 (C.P. 1851).
21. 8 Ex. 330, 155 Eng. Rep. 1374.(1853).
Two years later, in 1855, the court in Coleman v. Riches 22 held

that the agent of a combination wharfinger and carrier exceeded
his authority when he issued a bill of lading for goods he had not
received. As a result, the carrier was not liable.
Four years after Grant, the Supreme Court of the United
States addressed the issue of whether a shipowner was liable for
the quantity of goods recited in a bill signed by the ship's master.
In Schooner Freeman v. Buckingham,23 the general owner of the
vessel entrusted it to a special owner who was purchasing it on a
time payment plan. The special owner then gave possession of the
vessel to his son. The son, in turn, induced the master of the ship
to issue bills of lading for flour that was not loaded on board. The
Supreme Court held that, because the master acted beyond the
scope of his authority in signing the bills, the innocent holder of
the bills could not recover from the general owner.24
The Supreme Court of the United States again faced the issue
of the owner's liability in The Lady Franklin, an 1868 case.25 In
that case, an agent for several ships issued a bill of lading for the
steamer Lady Franklin, but placed the cargo described in the bill
on another vessel bound for the same destination. The ship carry-
ing the cargo foundered. The consignees, who in this case were also
the shippers, sued. The Court held that the carrier was not liable
since the agent had exceeded the scope of his authority. 26 In Pol-
lard v. Vinton, 7 the Supreme Court addressed the issue of the
shipowner's liability for the acts of a general agent who fraudu-
lently signed a bill of lading for cotton which the carrier never re-
ceived. The Court reasoned that the authority of a general agent to
22. 16 C.B. 104, 139 Eng. Rep. 695 (C.P. 1855).

23. 59 U.S. (18 How.) 182 (1855).
24. The Court expressly followed the English cases. See cases cited supra notes 20-23.
The Court also noted that the same principle had been followed by an American court. 59
U.S. at 191 (citing Walter v. Brewer, 11 Mass. 99 (1814)).
In Walter during the shipowner's temporary absence from his vessel, the master signed
and issued a bill of lading for goods which he actually received. He acted under an estab-
lished custom that allowed a master to transport his own goods without paying freight. The
facts indicated that the owner intended to use the vessel for his own goods, was not seeking
additional cargo, and was unaware of the bill of lading for the master's goods. The court
held that the master did not have actual or apparent authority to issue the bill and that the
owner was not liable to a subsequent holder of the bill when the master later embezzled
some of the goods.
25. 75 U.S. (8 Wall.) 325 (1868).
26. The Court recognized that the bill of lading involved in Schooner Freeman v. Buck-
ingham was obtained fraudulently, but held that the principle used there also applied where
the bill was issued by mistake. 75 U.S. (8 Wall.) at 329.
27. 105 U.S. 7 (1881).
1983] BILLS OF LADING
bind the owner was no greater than the authority of the master of
a ship. The Court held that the owner's liability did not begin until
the carrier had actually received the goods, despite the representa-
tions in the bill of lading. 5
The courts resolved the issue of the shipowner's liability for
his master's representations regarding the weight of cargo by
adapting the analysis used in cases involving disputes as to the
quantity of goods. In Sears v. Wingate,29 the Massachusetts Su-
preme Judicial Court relied on English and American precedents"0
in restricting a master's ability to conclusively bind the owner to a
bill of lading that incorrectly recited the weight of the cargo. In
Sears the master issued a bill of lading for 403 tons of coal when
he actually had received several tons less than that amount. Error,
not fraud, caused the discrepancy. Since the master had no facili-
ties for weighing the coal, he had relied on the shipper's statement
of the cargo's weight. The court held that because the misstate-
ment was merely an error, the bill of lading would not be conclu-
sive either against the master or the owners. If, however, the mis-
statement had been deliberate, the master would have been acting
beyond the scope 6f his authority and therefore liable for the
fraud. 1
In Relyea v. New Haven Rolling-Mill Co.,5 ' a United States
district court misapplied the Sears rule but nonetheless reached a
consistent result. In Relyea, the master was also the owner of the
28. Id. at 9; see Friedlander v. Texas & Pac. Ry., 130 U.S. 416 (1889) (railway was not
liable.where a station agent fraudulently signed a bill of lading for cotton that was never
received). In Pollard and Friedlander,the Court noted that bills of lading perform functions
different from promissory notes and drafts. Bills of lading were designed to pass from hand
to hand, but they were only evidence of ownership; a bona fide purchaser did not obtain
better title than that of his transferor. Pollard, 105 U.S. at 8; Friedlander,130 U.S. at 424.
In Missouri Pac. Ry. v. McFadden, 154 U.S. 155 (1894), a railway routinely issued bills
of lading for cotton when the goods arrived at a compressing company, which was an agent
of the shipper. The cotton was destroyed by fire and the purchaser of a bill sued the carrier.
The Court held that the railroad was not liable, because it had never received the goods.
Under this rule the railroad was allowed to contradict the bill of lading reciting goods that
were never received. McFadden, 154 U.S. at 160-61.
29. 85 Mass. 103 (1861).
30. Id. at 107. The court relied on Schooner Freeman v. Buckingham, 59 U.S. (18 How.)
182 (1855); Coleman v. Riches, 16 C.B. 104, 139 Eng. Rep. 695 (1855); Hubbersty v. Ward, 8
Ex. 330, 155 Eng. Rep. 1374 (1853); Grant v. Norway, 10 C.B. 665, 138 Eng. Rep. 263 (1851).
See supra text accompanying notes 20-23.
31. 85 Mass. at 109. The court explained that the shipowner was liable for anything
that the master knew, or ought to have known, was within the scope of his agency. The
master, however, was not liable for a misstatement, which by trade usage was regarded only
as an estimate rather than a statement of fact within the master's knowledge.
32. 75 F. 420 (D. Conn. 1873).
ship. In this dual capacity, he signed a bill of lading for slightly

more than 109 tons of scrap iron, when in fact only 103 tons were
loaded. The master-owner did not see the weighing being done by
the shipper at the dock, but relied on the shipper's representation
of the weight. The court incorrectly cited Sears for the proposition
that the owner is liable when the master erroneously signs a clean
bill. The case held just the opposite. The Relyea court reasoned
that the master-owner was liable based on the master's duty to as-
certain the true weight or else refuse to sign a clean bill. 8 The
rationalW for the Relyea result should have been the master's dual
status as both master and owner."
b. Detrimental Reliance and Disclaimers

The Grant v. Norway" rule of no shipowner liability for a
master's misrepresentation in a bill of lading concerning goods
never received still controls in England." It has not, however, been
unanimously followed in the United States. In Sioux City & Pa-
cific Railroad v. First National Bank of Fremont,8 7 an agent of a
railroad company issued bills of lading reciting the receipt of five
carloads of wheat. The consignee received less than one carload
each of wheat and barley. Though recognizing that several English
and American cases had held it to be beyond the authority of an
agent to issue bills of lading where no goods were received, the Su-
preme Court of Nebraska rejected this view:
All the testimony shows that the bills of lading in controversy
were issued by an authorized agent of the railroad company, and
33. Id. at 422.

34. Had liability been based on the master's role as owner, the court would not have
had to cite case law holding that a master who signs bills for never-received goods is acting
beyond his authority. The master's authority is irrelevant where no agency is involved.
35. 10 C.B. 665, 138 Eng. Rep. 263 (C.P. 1851); see supra text accompanying notes 20-
23.
36. T. SCRUTrON, CHARTERPARTIES AND BiLLs op LADING 112 n.72 (18th ed. 1974). In
Evans v. James Webster & Bros., Ltd., 45 T.L.R. 136 (K.B. 1928), the court assessed dam-
ages against a shipowner whose master had issued a clean bill of lading for more lumber
than was loaded and for lumber that was damaged in loading. It appears that the distinction
between nonliability for missing goods and liability for damaged goods was not drawn to the
attention of the court. The Grant holding was approved and followed, nevertheless, in V/0
Rasnoimport v. Guthrie & Co., [1966] 1 Lloyd's List L.R. 1 (Q.B.), but that court held that
the ship's agents were liable for a breach of an implied warranty of authority to issue a bill
for the full 225 bales of latex when only 90 had been loaded. The court further held that the
shipowner, shipper, and ship's agent were all innocent parties; the loaders and the tally
clerks had conspired to load an incomplete shipment and to issue tally sheets showing a full
load of latex in order to deceive the ship's agent into issuing the bill.
37. 10 Neb. 556, 7 N.W. 311 (1880).
that he not only had authority to issue such bills, but it was one
of the duties imposed upon him. As against an innocent pur-
chaser of the bills it will not do to say that the agent had au-
thority to issue bills of lading, duly signed, only in cases where
shipments are made, and no authority where shipments were not
made. The company itself has invested its own agent with the
authority to issue bills of lading and when duly issued they are
not the bills of the agent, but of the railroad company. The rep-
resentations, therefore, thus made in the bills that the company
has received a certain quantity of grain for shipment, is a repre-
sentation to any one who, in good faith relying thereon, sees fit
to make advances on the same. If these representations are false,
who should bear the loss-the party who appointed, placed con-
fidence in, and gave authority to make the bills, or the one that,
in good faith relying thereon, purchased or advanced money on
the same?"8
The Nebraska court held that the railroad company was estopped
from contradicting the representations in the bill of lading.3 9
Bank of Batavia v. New York, Lake Erie & Western Rail-
road4 0 is another early case finding an estoppel when a carrier's
freight agent issued a bill of lading without having received the
stated amount of goods.'1 In Batavia a freight agent conspired
with another person to issue bills of lading attesting to the receipt
of goods that were in fact nonexistent. A bank that paid on a draft
accompanying the bills sued the carrier. The Court of Appeals of
New York held that the carrier was estopped from denying receipt
of the described goods:
[W]here the principal has clothed his agent with power to do an
act upon the existence of some extrinsic fact necessarily and pe-
culiarly within the knowledge of the agent, and of the existence
of which the act of executing the power is itself a representation,
a third person dealing with such agent in entire good faith...
may rely upon the representation, and the principal is estopped
38. Id. at 564, 7 N.W. at 314. The court also stated that whether or not the bills of
lading were negotiable was irrelevant.
39. Id.
40. 106 N.Y. 195, 12 N.E. 433 (1887).
41. Two years before Batavia was decided, the Supreme Court of Pennsylvania was
faced with the same dishonest employee who committed the fraud in Batavia. See Brooke v.
New York, L.E. & W. R.R., 108 Pa. 529, 1 A. 206 (1885). The Pennsylvania court indicated
that the estoppel doctrine would normally apply to prevent the carrier from denying that it
had received the goods, the New York conflict of laws principles required the application of
New York law. The court then used the pre-Batavia case law of New York to estop the
carrier from denying liability, thereby reaching the desired result.
from denying its truth, to his prejudice.'

The court reasoned that even if a potential holder of a bill in-
quired of the carrier as to the veracity of the bill's recitals, the only
source of this information would be the dishonest clerk who issued
the fraudulent bill. Thus, unless he may rely on the recitals, the
holder of the bill has no means of protecting himself."3
In an 1890 decision," the Supreme Court of Minnesota noted
that the majority of courts, including the federal courts, 45 and the
courts of Massachusetts, Maryland, Louisiana, Missouri, North
Carolina, and perhaps Ohio, followed the rule that the carrier was
not liable for bills of lading reciting nonexistent goods. The Minne-
sota court pointed out that the courts of New York, Kansas, Ne-
braska, and possibly Illinois and Pennsylvania, followed a minority
and contrary rule imposing liability on the carrier. Although the
Minnesota court considered the estoppel theory to be the better
view, it followed the majority rule because of the desirability of
uniformity in commercial law."
The first federal case to adopt the principle that the carrier
was estopped from denying the accuracy of a recital of quantity in
a bill of lading signed and issued by the master was Oliver Straw
Goods Corp. v. Osaka Shosen Kaisha.7 In this case, the master of
a Japanese carrier issued an onboard bill of lading for hemp braid
that had been delivered to the carrier's warehouse. A severe earth-
quake opened the warehouse doors, and looters stole or destroyed
the hemp. Because of the confusion, the shipowner did not dis-
cover the loss.' 8 The court held that the shipowner was nonetheless
estopped to deny that the goods were on board. The court stated,
42. 106 N.Y. at 199, 12 N.E. at 433-34.

43. The court explained that bills of lading were intended to be bought and sold in
commerce on the strength of the recitals in the bills. Therefore, the court reasoned that the
carrier should have stamped its bills "non-negotiable" if it wanted to limit its liability to a
named consignee. Id. at 201, 12 N.E. at 434. This approach is followed in the Pomerene Act.
See infra notes 93-121 and accompanying text.
44. National Bank of Commerce v. Chicago, B. & N. R.R., 44 Minn. 224, 46 N.W. 342
(1890).
45. This was before the Supreme Court of the United States decided Erie R.R. v.
Tompkins, 304 U.S. 64 (1938). As the Minnesota Court observed, the federal courts in 1890
followed the general federal common law rather than the decisions of state courts. National
Bank of Commerce v. Chicago, B. & N. R.R., 44 Minn. 224, 235, 46 N.W. 342, 346 (1890).
46. The Bill of Lading (Pomerene) Act, ch. 415, 39 Stat. 538-45 (1916) (current version
at 49 U.S.C. §§ 81-124 (1976)), and Erie R.R. v. Tompkins, 304 U.S. 64 (1938), eliminated
the need for the courts to adopt bad law for the sake of commercial uniformity.
47. 27 F.2d 129 (2d Cir. 1928).
48. The shipper, however, apparently knew that the goods had never been placed on
board, but nevertheless collected on a letter of credit. Id. at 131.
"We can see no difference in principle between a misrepresentation

as to the condition of merchandise and a misrepresentation that it
is on board when it is not. Either furnishes a basis for an
4' 9
estoppel.
c. The.Lien Theory of Carrier Liability
Even where the courts allowed the holder of a bill of lading to

recover from the carrier, a nagging procedural problem remained:
May a shipper of the goods or a holder of a bill of lading libel a
ship in rem when the ship's master has issued a clean bill falsely
reciting the receipt or quantity of goods? If not, was the holder's
only recourse an in personam action against the owner of the ship?
In the 1923 case of Osaka Shosen Kaisha v. Pacific Export Lum-
ber Co., 50 the Supreme Court of the United States held that the
shipper of goods could not libel the ship in rem when the ship had
loaded only a part of the shipment, because the shipper itself had
breached its contract of afreightment by not delivering the amount
stated in the bill. The Court stated that, since the ship itself did
not have a lien for freight on cargo it had never loaded, then the
shipper had no reciprocal, lien against the ship for cargo that the
carrier never received. Subsequent cases have followed this line of
reasoning. 51
The lien theory may have been the source of the principle that
the shipowner is not liable when the quantity of goods received
was less than that recited in the bill of lading. In Osaka, for exam-
ple, the Supreme Court cited Schooner Freeman5 2 and The Lady
Franklin" 3 for the proposition
that without delivery of cargo libel
in rem would not lie. Neither case discussed the theory that the
carrier was not bound by the unauthorized misrepresentations of
its agent. The discussion in Osaka indicated that the lien theory
long ante-dated the agency theory.5 4 This suggests that the agency
theory was merely a makeweight rationalization of the much older
rule.
49. Id. at 133.

50. 260 U.S. 490 (1923).
51. See Compagnie de Navigation v. Mondial United Corp., 316 F.2d 163 (5th Cir.
1963); San Juan Trading Co. v. The Marmex, 107 F. Supp. 253 (D.P.R. 1952).
52. 59 U.S. (18 How.) 182 (1855); see supra text accompanying notes 23-24.
53. 75 U.S. (8 Wall.) 325 (1868); see supra text accompanying notes 25-26.
54. 260 U.S. at 497-99.
2. CARRIER LIABILITY FOR QUALITY RECITALS IN THE CLEAN BILL OF

LADING
The first American decision to recognize that not all recitals of

quality contained in a bill of lading were conclusive against a car-
rier was the 1811 case of Barrett v. Rogers.5 In Barrett the shipper
delivered sealed cases of velvet goods to the carrier. Relying on the
shipper's representations, the master of the ship noted in the bill
of lading the apparently good condition of the goods. The goods
were in fact water-damaged. The court held that since the master
could only be expected to inspect the exterior of the cases, the bill
was prima facie, not conclusive, evidence against the carrier in a
suit by a consignee. 6
Thirty-eight years later, in Bradstreet v. Heran,57 a federal
district court reasoned that representations of quality in a bill of
lading referred only to the external appearance of the packages,
not to the quality of the goods inside. In Bradstreet a shipper de-
livered badly torn and damaged bales of cotton to a carrier. The
master signed a bill of lading reciting that the bales were "in good
order and well-conditioned."58 The consignee of the cotton had
made large advances on the faith of the representations and sued
the carrier upon discovering that the goods were damaged. The
court held that the carrier could not escape liability for the false
statement of the goods' condition." The carrier was conclusively
bound by the master's signature. 0
The landmark 1879 Scottish case of Craig & Rose v. Delargy1
illustrates the courts' willingness to allow the master to limit the
carrier's liability by qualifying an otherwise clean bill of lading. In
Craig a carrier received 369 casks of olive oil. After detecting the
defective condition of the casks and receiving the shipper's assur-
ances that the carrier would not be held liable, the master modified
the bill of lading to state that the oil was "shipped in good order
55. 7 Mass. 297 (1811).

56. See id. at 301.
57. 3 F. Cas. 1183 (C.C.S.D.N.Y. 1849) (No. 1,792a).
58. Id. at 1183.
59. The carrier attempted to prove that the goods were not in good condition because
they suffered from "country damage." Country damage frequently results from the bad con-
dition of the cotton before it is baled and is not detectable by inspecting the bales' exterior
at the time of shipping. Id.
60. The court cited no authority for its decision and did not explain its legal theory for
imposing liability on the carrier.
61. [1879] 6 R. Sess. Cas. 1269 (Scot. 1st Div.).
and well-conditioned." The master, in his own handwriting,

added the following disclaimer: "Not responsible for weight, quali-
ty, leakage, or breakage."" A large quantity of oil was lost in
transit, and the consignees sued. The court held that a consignee
had the same rights as the shipper and was subject to the same
liabilities." The evidence indicated that the shipper was responsi-
ble for the loss and that the master had modified the bill. The
shipowner, therefore, was not liable for the leakage resulting from
the defective casks.
In 1886 an English court extended the Grant v.Norway 5
rule-the carrier is not liable when the ship's master issues a bill of
lading for goods not received-to absolve the carrier from liability
for false recitals concerning the quality of goods received on board.
In Cox, Patterson& Co. v. Bruce & Co.," a master signed a bill of
lading containing a requirement that the master conform the bill
of lading to the shipper's notes.67 The shipping notes described the
number of bales of jute of each of three quality grades. The master
copied these quality marks onto the bill of lading. The number of
bales of each quality that was actually received did not correspond
to the shipping notes (or the bill of lading). The purchasers of the
bill of lading sued the shipowner. The court held that the owner
was not estopped from explaining the representations of quality in
the bill of lading. Expanding the Grant principle, the court rea-
soned that the master did not have apparent authority to deter-
mine the quality of goods, nor was he under a duty to record the
62. Id. at 1270.

63. Id. The evidence indicated that the shippers induced the purchasers to accept de-
livery by indemnifying them against loss. Id. at 1271, 1274.
64. The court relied on the English Bill of Lading Act, 18 & 19 Vict., ch. 111, § 1
(1855), which provides:
Every Consignee of Goods named in a Bill of Lading, and every Endorsee of a
Bill of Lading to whom the Property in the Goods therein mentioned shall pass,
upon or by reason of such Consignment or Endorsement, shall have transferred
to and vested in him all Rights of Suit, and be subject to the same Liabilities in
respect of such Goods as if the Contract contained in the Bill of Lading had
been made with himself.
65. 10 C.B. 665, 138 Eng. Rep. 263 (C.P. 1851); see supra notes 16-18 and accompany-
ing text.
66. 18 Q.B.D. 147 (1886).
67. The bill of lading stated,
[11f quality marks are used, they are to be of the same size as the leading marks
and contiguous thereto, and, if such quality marks are inserted in the shipping
notes and the goods are accepted by the mate, bills of lading in conformity
therewith shall be signed by the captain and the ship shall be responsible for the
correct delivery of the goods.
Id. at 150-51.
quality marks on the bill."

One year after Cox, Pattersonwas decided in England, the Su-
preme Court of the United States reached a similar conclusion in
St. Louis, Iron Mountain & Southern Railway v. Knight.s In that
case, the bills of lading described cotton bales bearing a designated
quality grade, but also described the goods as "contents unknown"
and "marked and numbered as per margin." 0 The bills also stated
that the master received the bales "in apparent good order. 1
When the buyer of the goods discovered the cotton was of a grade
inferior to that indicated on the bills, he sued the carrier. The
Court held that the "in apparent good order and condition" state-
ment only related to the external condition of the packaging and
implied nothing as to the quality of the contents. The Court also
concluded that, since the master lacked apparent authority to issue
bills of lading describing the internal quality and grade of the cot-
ton, the carrier was not liable to the buyer.
In 1905 an English court72 held that the words "in good order
and condition" did amount to an express representation of the
condition of the goods shipped.7 Unlike Cox, Patterson,however,
Compania Naviera Vasconzada v. Churchill & Sim7 4 involved
goods that were not packaged in containers. The master could
readily determine the condition of the goods. In Compania the car-
rier received lumber in obviously poor condition due to petroleum
staining. The master signed the bill of lading without noting the
damaged condition of the goods. Instead, the bill indicated that
the "quality and measure [of the goods were] unknown. 75
In the
suit by the consignee, the court held that the carrier was estopped
from refuting the "good order and condition" representation in the
bill. The court stated that, in the case of packaged goods, "quality"
68. Id. at 152. The court relied on the English Bill of Lading Act, explaining that the
issue was whether the shipper would have a claim against the carrier, since the purchaser
was in the same legal position as the shipper.
69. 122 U.S. 79 (1887).
70. Id. at 81-82.
71. Id. at 81.
72. Compania Naviera Vasconzada v. Churchill & Sim, [1906] 1 K.B. 237 (1905).
73. Id. at 239. The English court noted that the bill was issued under the American
Harter Act, ch. 105, 27 Stat. 445 (1893) (current version at 46 U.S.C. §§ 190-196 (1976)),
which the court interpreted as requiring a carrier to recite in the bill the apparent order of
the goods. Subsequent American authority took the position that the bill of lading need not
recite the apparent order and condition of the goods unless the shipper requested that recit-
als be made.
74. [19061 1 K.B. 237 (1905).
75. Id. at 244-45.
referred to the condition of the interior merchandise, which was

not readily apparent to a ship's master. "Good condition," on the
other hand, referred to the external appearance of the container or
package, which could easily be ascertained by the master. e
Six years later, the Compania case was followed in Mar-
tineaus (Ltd.) v. Royal Mail Steam Packet Co."7 In Martineaus
the ship's mate noted on the receipt that a cargo of sugar was
78
"[v]ery wet and stained by contents. Nevertheless, the ship's
master signed a bill of lading reciting that the sugar had been re-
ceived in apparent good order and condition. Relying on the bill,
the consignees began making installment payments for the sugar.
When they discovered the true condition of the cargo, the consign-
ees sued the shipowners. The court held the shipowners were es-
topped from proving that the sugar was damaged prior to being
loaded on the ship.79 The court quoted but rejected the ship-
owner's explanation as to why the master had issued a clean bill in
spite of the apparent bad condition of the goods: "If all these nota-
tions were to appear in bill [sic] of lading there would be, as there
has been in the past, a great outcry about the unnecessary clausing
of bills of lading."80
C. Statutory Developments
Recognizing the courts' confusion over the respective liabilities
of the shippers and carriers, Congress enacted legislation in an ef-
fort to clarify the situation. Five major pieces of legislation have
affected bills of lading.
The Harter Act of 1893,81 still in effect today, influenced inter-
76. Id. at 241. The Compania court pointed out that the relief it granted was not based
on a contract between the carrier and the consignee. Id. at 247. The court based its estoppel
analysis on the American case of Sears v. Wingate, 85 Mass. 103 (1861). The dicta in the two
cases were identical, but the holdings were not.
In Sears the court mentioned the estoppel theory but held that the consignee could not
recoup damages against both the master and the shipowners because the bill of lading was
binding against only the master. See supra notes 29-31 and accompanying text. In Compa-
nia, however, the shipowners were estopped from denying the truth of the recitals in the bill
of lading. Unlike the master in Sears, the captain in Compania was held to have acted
within the scope of his authority. The Compania bill falsely described damaged goods as in
good condition, but the Sears bill described goods which had never been placed on board.
77. 17 Com. Cas. 176 (K.B. 1912).
78. Id. at 176-77.
79. id. at 181. The court held that the carrier was liable for the difference between the
value of the sugar as delivered and the market price of undamaged sugar.
80. Id. at 179.
81. Harter Act, ch. 105, 27 Stat. 445 (1893) (current version at 46 U.S.C. §§ 190-196
(1976)).
national shipping. The Act applies not only to shipments between

American ports, but also to shipments between American and for-
eign ports.82 The Harter Act was passed as a compromise between
those who "sought (by the inclusion of exculpatory clauses in bills)
full exoneration for the carrier from all claims based on his negli-
gence and those who . . . sought to hold carriers responsible for
the consequences of every sort of negligence." 83 The Act prohibits
the carrier from disclaiming liability for its agents' negligence, but
allows it to indicate in the bill that the description of the goods is
based on the shipper's representation."4
Section 4 of the Harter Act requires the carrier to issue to the
shipper a bill of lading stating "the marks necessary for identifica-
tion, number of packages, or quantity, stating whether it be car-
rier's or shipper's weight, and apparent order or condition of such
merchandise or property delivered to and received by the owner,
master, or agent of the vessel for transportation."8 5 This section
also provides that the bill of lading is merely prima facie evidence
that the carrier received the goods from the shipper."0 The United
States Supreme Court has held that where a bill of lading is silent
as to the apparent condition of the shipped goods, the carrier is
not estopped, under the Act, from showing that the goods were
damaged when received.87
The Uniform Bills of Lading Act (UBLA), ss adopted in 1909,
did not directly address the question of the carrier's liability based
on its issuance of a bill of lading. Rather, it set forth what a carrier
could do, by using appropriate language in the bill, to limit its lia-
bility. Section 23 permitted the carrier to insert the words "ship-
per's load and count" to avoid liability based on bills issued for
never-received goods when the shipper loaded the vessel.8 ' In addi-
tion, the carrier could immunize itself from liability by truthfully
stating in the bill that the description of the goods was based on
package labels or on the shipper's representations.'
82. 46 U.s.C. §§ 190-193; G.GILMORE & C.BLACK, supra note 15, at 142-49. In addition,
the Harter Act governs the shipment of goods (1) after delivery to the carrier but before
loading, and (2) after unloading from the carrier but before delivery to the consignee. 46
U.S.C. §§ 190-191.
83. G. GILMORE & C. BLACK, supra note 15, at 142-43.
84. 46 U.S.C. §§ 190, 193.
85. Id. § 193.
86. Id.
87. Austin Nichols & Co. v. S.S. "Isla De Panay," 267 U.S. 260 (1925).
88. The Act was withdrawn in 1951.
89. UNIF. BILLS OF LADING ACT § 23(b) (1909) (act withdrawn 1951).
90. Id.
The UBLA evidenced a rejection of the common-law rule that

a carrier's agent who issued a bill of lading for goods that were
never received did not thereby bind his principal.9 ' Under section
23, if the agent had actual or apparent authority to issue bills of
lading, the carrier was liable to the consignee named in a nonnego-
tiable bill or to the holder of a negotiable bill who had given value
in good faith in reliance upon the description of the goods' quality
or quantity. The carrier was liable for damages caused by the non-
receipt of all or part of the goods "or their failure to correspond
with the description thereof in the bill at the time of its issue.""1
The Federal Bill of Lading (Pomerene) Act 9s was enacted in
1916. It used much of the language of the UBLA. Like the UBLA,
the Pomerene Act implies a policy that carriers should be allowed
to limit their liability by truthful recitals in bills and that estoppel
should not operate against a carrier where the shipper was at
fault.94 For example, the Act provides that the carrier can disclaim
liability by using language indicating that "the goods are said to be
goods of a certain kind or quantity, or. . . that packages are said
to contain goods of a certain kind or quantity or in a certain condi-
tion, or that the contents or condition of the contents of packages
are unknown." 5 The representations of quality and quantity con-
tained in the bill of lading are prima facie evidence that the carrier
received the goods; the carrier is not estopped to show that it re-
ceived less or inferior goods from the shipper. Similarly, when the
carrier issues a bill of lading that recites a smaller quantity of
goods than what was actually received, the shipper may admit, by
parol evidence, proof that it delivered a greater amount." If the
carrier loads the goods but notes "shipper's weight, load and
count" in the bill, the notation is deemed null and void.97 The car-
rier has the heavy burden of overcoming the presumption that the
shipper delivered the quantity recited in the bill."
Under section 22 of the Pomerene Act, a carrier issuing a bill
of lading is liable to a holder who relies on the bill's description of
91. See supra notes 16-34 and accompanying text.

92. UNv. BILLS OF LADING ACT § 23.
93. Ch. 415, 39 Stat. 538-45 (1916) (current version at 49 U.S.C. §§ 81-124 (1976)).
94. See Pomerene Act § 21, 49 U.S.C. § 101 (1976); UNIF. BILLS OF LADING ACT § 23
(1909).
95. 49 U.S.C. § 101.
96. See Agar Packing & Provision Co. v. Weldon, 42 Tenn. App. 175, 300 S.W.2d 51
(1956).
97. Pomerene Act § 20, 49 U.S.C. § 100 (1976).
98. See American Trading Co. v. The Harry Culbreath, 187 F.2d 310 (2d Cir. 1951).
the goods and incurs damages caused by the nonreceipt or misde-

scription of the goods. 9 In Elgie & Co. v. S.S. "S.A. Nederburg",1eo
a bill of lading listed eleven cartons and one crate of goods. The
consignee never received the crate, which had been stolen. The
court held that this constituted a "misdescription" of the quantity
of the goods, giving rise to the carrier's liability under section 22.
The court also held that section 22 was not limited to fraudulent
101
statements, but applied to negligent misstatements as well.
The protection afforded to holders of bills of lading by section
22 is limited when the owner of goods is covered by a "straight,"
nonnegotiable bill.102 In such a case, the seller is contractually
bound to deliver the goods to the carrier. If state law provides that
title to the goods does not pass until delivery has been made in
accordance with the contract, then the holder of the straight bill
does not become the owner of the goods until the carrier receives
them. If the seller failed to deliver the goods, the holder would
have no cause of action against the carrier notwithstanding the
holder's reliance on the bill. 0 s
Two differences between the UBLA and the Pomerene Act are
notable. The first concerns the carrier's liability stemming from
the issuance of bills of lading by the carrier's agent or employee.
To bind the carrier under the Pomerene Act, the agent's authority
must include not only the issuing of bills of lading, but also the
receiving of goods.104 Standing to sue the carrier also varies be-
99. Section 22 of the Act states:

If a bill of lading has been issued by a carrier or on his behalf by an agent or
employee the scope of whose actual or apparent authority includes the receiving
of goods and issuing bills of lading therefor for transportation in commerce
among the several States and with foreign nations, the carrier shall be liable to
(a) the owner of goods covered by a straight bill subject to existing right of stop-
page in transitu or (b) the holder of an order bill, who has given value in good
faith, relying upon the description therein of the goods, or upon the shipment
being made upon the date therein shown, for damages caused by the nonreceipt
by the carrier of all or part of the goods upon or prior to the date therein shown,
or their failure to correspond with the description thereof in the bill at the time
of its issue.
49 U.S.C. § 102.
100. 599 F.2d 1177 (2d Cir. 1979).
101. Id. at 1179-80. A recital in a cargo inspector's certificate that 501 tons of tallow
were received when only 375 tons were actually received is another example of an incorrect
description triggering liability for the inspector. Plata Am. Trading, Inc. v. Lancashire, 29
Misc. 2d 246, 214 N.Y.S.2d 43 (Sup. Ct. 1957).
102. See 49 U.S.C. § 102.
103. See Martin Jessee Motors, Inc. v. Reading Co., 87 F. Supp. 318 (E.D. Pa. 1949),
aff'd, 181 F.2d 766 (3d Cir. 1959).
104. 49 U.S.C. § 102.
tween the two acts. Under the UBLA the consignee named in a
nonnegotiable bill has standing to sue the carrier; under the
Pomerene Act only the owner of the goods or the holder of an or-
der bill may sue the carrier. 0 5 Thus, the consignee under a non-
negotiable bill for goods that were received would not have stand-
ing to sue the carrier under the Pomerene Act.' 08
The Carriage of Goods by Sea Act of 1936107 (COGSA) con-
trols bills of lading for shipments between American and foreign
ports.108 COGSA requires the carrier, upon demand by the shipper,
to issue a bill of lading indicating "the number of packages or
pieces, or the quantity or weight, as the case may be, as furnished
in writing by the shipper."'' " The carrier must note in the bill the
apparent order and condition of the goods, unless he believes the
information would be inaccurate or has no reasonable means of
verifying the information." 0 COGSA also requires the shipper to
indemnify the carrier against damages resulting from inaccurate
information provided by the shipper. The right of the carrier to
indemnification by the shipper, however, does not relieve the car-
rier of liability to third parties."'
Under COGSA a bill's recital that goods are in apparent good
order and condition constitutes prima facie evidence that the
105. Compare UNIF. BELLs OF LADING ACT § 23(a) with Pomerene Act § 22. Under the
Pomerene Act, the carrier-issuer of a bill of lading is liable to
(a) the owner of goods covered by a straight bill subject to existing right of stop-
page in transitu or (b) the holder of an order bill, who has given value in good
faith, relying upon the description therein of the goods. . . for damages caused
by . . their failure to correspond with the description thereof in the bill at the
time of its issue.
Id. If the shipper is the aggrieved party, he may have no standing under the Pomerene Act,
because he has not "given value in good faith, relying upon the description [in the bill of
lading] of the goods." R.J. Reynolds Tobacco Co. v. Boston & M. R.R., 298 Mass. 152, 154,
10 N.E.2d. 59, 60 (1937) (citing Louisville & N. R.R. v. Cullman Warehouse, Inc., 226 Ala.
493, 496, 147 So. 421, 424 (1933) (quoting § 22 of the Pomerene Act)).
106. See G.A.C. Commercial Corp. v. Wilson, 271 F. Supp. 242 (S.D.N.Y. 1967); Chesa-
peake & 0. Ry. v. State Nat'l Bank, 280 Ky. 444, 133 S.W.2d 511 (1939).
107. Carriage of Goods by Sea Act (COGSA), ch. 229, 49 Stat. 1207 (1936) (codified at
46 U.S.C. §§ 1300-1315 (1976)). The draftsmen of COGSA were careful to provide that noth-
ing in the Act was to be construed as "repealing or limiting the application of any part of
[the Pomerene Act]." Id. § 1303(4).
108. See generally G. GiMofta & C. BLACK, supra note 15, at 147-48.
109. 46 U.S.C. § 1303(3)(b). Much of the language of COGSA concerning the details in
the bill of lading regarding quantity and apparent good order and condition were taken
from the Harter Act. See supra notes 85-86 and accompanying text. Under the Harter Act
the carrier always has a duty to issue the bill, while under COGSA the carrier has such a
duty only upon demand by the shipper.
110. 46 U.S.C. § 1303(3)(c).
111. Id. § 1303(5).
goods were received in the stated order. 1 12 This statement of ap-

parent good order relates to the external appearance of the cargo
at the time of receipt. If the packaging has been torn, broken, or
water-damaged the carrier should clause the bill of lading to reflect
that condition, since this may indicate that the goods themselves
are damaged."18 In a suit against a shipper, the carrier who issued a
clean bill has the burden of overcoming the prima 4
facie evidence
that the goods were shipped in good condition.1
Like the Pomerene Act, the Uniform Commercial Code
(U.C.C.) limits the issuer's liability when the description, quantity,
or condition of the goods is qualified by such phrases as" 'contents
or condition of contents of packages unknown', 'said to contain',
'shipper's weight, load and count' or the like.""11 Unlike under the
Pomerene Act, the consignee of a nonnegotiable bill of lading
under the U.C.C. has the same rights against the carrier as does
the holder of a negotiable bill."" Also, the U.C.C. prohibits a
holder of either type of bill from recovering when the bill contains
truthful limiting language." ' Finally, a comment to the U.C.C.
states that the carrier-issuer is liable for a bill of lading issued
against instructions by his agent when the agent has received no
goods. 18 "[N]o disclaimer of this liability is permitted since it is
not a matter either of the care of the goods or their description."" '
The U.C.C. also gives the holder of a bill a cause of action
against the seller for breach of warranty of title. 20 The holder has
another cause of action against his immediate seller for breach of
the warranty that the document is genuine.' 2 '
112. Id. § 1303(4). Between the shipper and the carrier, a bill of lading serves as a
contract and a receipt for goods, but it is not a warranty as to the condition of the goods
when it recites their apparent good order and condition. E.g., Amerlux Steel Corp. v. John-
son Line, 33 F.2d 70 (9th Cir. 1929); The Ciano, 69 F. Supp. 35 (E.D. Pa. 1946).
113. Where commodities are shipped, the shipper "may have a considerable burden of
going further [than proving good external condition of the containers] to prove actual [good]
condition" of the goods upon delivery to the ship. Compagnie De Navigation Fraissinet &
Cyprien Fabre, S.A. v. Mondial United Corp., 316 F.2d 163, 170 (5th Cir. 1963).
114. The Ciano, 69 F. Supp. 35, 39 (E.D. Pa. 1946).
115. U.C.C. § 7-301(1) (1978).
116. Id.
117. Id.
118. Id. comment 3.
119. Id.
120. Id. § 2-312.
121. Id. § 7-507.
II. THE CLEAN BILL OF LADING TODAY
Professors Gilmore and Black claim that, because "the carrier

controls the form in which its bills are issued, a technically clean
bill [today] is as common as a white blackbird, a blue moon, or a
pink elephant. 1' 22 They rely on the definition of a clean bill of lad-
ing in the Uniform Customs and Practice for Commercial Docu-
mentary Credits (UCP): "A clean shipping document is one which
bears no superimposed clause or notation which expressly declares
a defective condition of the goods and/or the packaging. 12 3 The
professors state that because the general custom is for carriers to
make notations in the bill of lading concerning the number or na-
ture of the goods, the technically "clean" bill is a rarity.
With due deference to Professors Gilmore and Black, the clean
bill of lading is alive and well. The UCP provides that "[s]hipping
documents which bear a clause on the face thereof such as 'ship-
per's load and count' or 'said by the shipper to contain' or words of
similar effect, will be accepted [as clean]. 12 4 The standard clauses
disclaiming carrier knowledge of the load, count, and contents do
not "clause" or "foul" the bill. The bill of lading will be considered
foul only when it contains an express declaration that the goods
122. G. GILMORE & C. BLACK, supra note 15, at 122.

123. UNIFORM CUSTOMS AND PRACTICE FOR COMMERCIAL DOCUMENTARY CREDITS art.
18(a) (1974), reprinted in H. GUTTERIDGE & M. MEGRAH, THE LAW OF BANKERS' COMMER-
CIAL CREDITS 221, 225 app. (6th ed. 1979).
124. Id. art. 17, reprintedin H. GUtrERIDGE & M. MEGRAH, supra note 123, at 225 app.
In Portland Fish Co. v. States S.S. Co., 510 F.2d 628 (9th Cir. 1974), decided under COGSA,
the court deemed a bill of lading to be clean despite notations in the bill describing the
quantity and tonnage of the goods as "said to be" and "said to weigh." Id. at 630. The court
in Spanish-American Skin Co. v. The M.S. Ferngulf, 143 F. Supp. 345 (S.D.N.Y. 1956),
afl'd, 242 F.2d 551 (2d Cir. 1957), held that a bill containing the notation "shipper's weight"
and the rubber-stamped impression, "Steamer not responsible for weight, quality or condi-
tion of contents," was a clean bill under COGSA. The carrier could not therefore avoid
liability when only one-third of the stated amount of goods was delivered. The court held
that although the carrier was not obliged to state the weight of the goods in the bill of
lading, after having done so, the carrier was bound by its weight declaration, and could not
then disclaim liability by notations in the bill. d. at 349-50. San Juan Trading Co. v. The
Marmex, 107 F. Supp. 253 (D.P.R. 1952), exemplifies the opposite rule. The court there
deemed a bill of lading to be fouled by a notation that "the merchandise has been counted
and measured by the shipper, the vessel accepting it without prejudice of having the same
counted and measured at the port of destination." Id. at 255. The bill recited the receipt of
a specified number of pieces of lumber measuring a specified number of square board-feet.
The bill also stated that the carrier was not liable until the goods actually were loaded for
transportation and that the holder of the bill had agreed to be bound by all stipulations in
the bill of lading. Because the bill was held to be foul, the ship was not liable to the con-
signee for a shortage of lumber upon delivery.
are defective." 5
Nevertheless, a bill of lading stating merely that the goods
were received "in apparent good order and condition" is not
"clean" if it incorporates by reference other documents reflecting
defects in the goods. In Canada & Dominion Sugar Co. v. Cana-
dian National (West Indies) Steamships, Ltd., 126 the English
Privy Council, on appeal from the Supreme Court of Canada, dealt
with a bill that stated that sugar was "received in apparent good
1 27
order and condition. The words "signed under guarantee to
produce ship's clean receipt" appeared in the margin of the bill. 128
A clause in the bill of lading provided that when a clean bill was
signed subject to a mate's receipt, the consignee or holder of the
bill of lading would be bound by any notations or exceptions in the
receipt. The ship's receipt contained the words "many bags
stained, torn and resewn. ' 2M The court stated that had the words
"received in apparent good order and condition" stood by them-
selves, the bill of lading would have been clean, but in this case
the bill ... contain[ed] . . . qualifying words ... clear and ob-
vious on the face of the document ... reasonably conveying to
any business man that if the ship's receipt was not clean the
statement in the bill.., could not be taken to be unqualified. If
the ship's receipt was not clean, the bill of lading would not be a
clean bill ... with the result that the estoppel ... against the
shipowner ... could not be relied on.150
A. Limitations of CarrierLiability
The carrier has a duty to preserve the condition of goods in
125. See Vana Trading Co. v. S.S. "Mette Skou," 556 F.2d 100 (2d Cir.), cert. denied,
434 U.S. 892 (1977) (clean bill of lading merely attests to apparent good condition of cargo
based on external inspection); Portland Fish Co. v. States S.S. Co., 510 F.2d 628 (9th Cir.
1974) (the qualification "said to weigh" did not foul the bill); Caribbean Produce Exch., Inc.
v. Sea Land Serv., Inc., 415 F. Supp. 88 (D.P.R. 1976) (bill deemed clear where limited
liability clause of tariff provision was incorporated in long form bill of lading); S.M. Sartori,
Inc. v. S.S. Kastav, 412 F. Supp. 1181 (S.D.N.Y. 1976) (a clean bill with no exceptions is
evidence of cargo's apparent good condition); Samincorp South Am. Minerals & Merchan-
dise Corp. v. S.S. Corwall, 240 F. Supp. 327 (D. Md. 1963) (bill of lading was clean where it
recited goods received in apparent good order and condition, but with weight, measure,
marks, numbers, quality, contents, and value unknown); Freedman v. The M/S Concordia
Star, 147 F. Supp. 537 (S.D.N.Y. 1957) (bill of lading that recited "external good order and
condition of barrels" was clean).
126. 1947 A.C. 46 (Can.).
127. Id. at 48.
128. Id.
129. Id.
130. Id. at 54.
his charge and to deliver them as described in the bill of lading. If

the carrier breaches this duty, the descriptions in the bill are evi-
dence of the measure of damages.
When the bill of lading recites that the contents of containers
are unknown, yet states the nature of the contents, the carrier may
be liable to the consignee if the goods are not as described. In
Josephy v.Panhandle& Santa Fe Railway,'5 ' a bill of lading re-
corded the consignor's general description of the goods as "dressed
poultry," but stated that "the contents and condition of contents
of packages are unknown."' 32 The shipment included eggs and rab-
bits as well as poultry. The court held that the "contents un-
known" notation was sufficient under the Pomerene Act to negate
the carrier's liability to the purchaser of the bill.'
When a consignee sues for damages due to spoilage of goods in
transit, he must prove that the goods were sound when shipped. It
is not sufficient only to show that the goods were in apparent good
condition; this recital in the bill does not extend beyond the exter-
nal condition of the goods. 3 4 This rule may not apply, however,
when the goods were noted to be in apparent good order and con-
dition and became contaminated by contiguous goods during
shipment.'
131. 235 N.Y. 306, 139 N.E. 277. (1923).

132. Id. at 308, 139 N.E. at 278.
133. Id. The Josephy court interpreted sections 21 and 22 of the Pomerene Act, 49
U.S.C. §§ 101, 102 (1976). See supra notes 93-103 and accompanying text. Section 21 of the
Act provides:
When package freight or bulk freight is loaded by a shipper and the goods
are described in a bill of lading merely by a statement of marks or labels upon
them or upon packages containing them, or by a statement that the goods are
said to be goods of a certain kind or quantity, or in a certain condition, or it is
stated in the bill of lading that packages are said to contain goods of a certain
kind or quantity or in a certain condition, or that the contents or condition of
the contents of packages are unknown, or words of like purport are contained in
the bill of lading, such statements, if true, shall not make liable the carrier issu-
ing the bill of lading, although the goods are not of the kind or quantity or in the
condition which the marks or labels upon them indicate, or of the kind or quan-
tity or in the condition they were said to be by the consignor.
49 U.S.C. § 101. Section 22 of the Act states that a carrier is liable for its agent's issuance of
a bill of lading where the agent has actual or apparent authority to receive goods and to
issue bills of lading. 49 U.S.C. § 102.
134. A clean bill of lading merely attests to apparent good condition of cargo, based on
external inspection. United States v. Lykes Bros. S.S. Co., 511 F.2d 218, 223 (5th Cir. 1975)
(following United States v. Central Gulf S.S. Corp., 456 F.2d 1281 (5th Cir. 1972)); see also
Monnier v. United States, 16 F.2d 812 (E.D.N.Y. 1925); The Muskegon, 10 F.2d 817
(S.D.N.Y. 1924); The Dondo, 287 F. 239 (S.D.N.Y. 1921).
135. George F. Pettinos, Inc. v. Thos. & Jno. Brocklebank, Ltd., 65 F. Supp. 102 (E.D.
Pa. 1944).
A similar problem arises when the bill of lading recites the

weight of goods. Under COGSA,' 3e if a carrier issues a bill of lading
that recites the specific weight of the cargo and then attempts to
qualify the bill by noting, for example, "Particulars Declared by
Shipper," the attempted qualification is ineffective. 137 When the
bill contains the printed words "weight, content and value un-
known," yet contains a typewritten recital of the weight of the
goods when received, the typewritten notation controls. 138
The Pomerene Act prohibits the qualification of statements of
quantity of bulk freight 3 9 but does not state whether recitals of
package freight quantity may be qualified.1 40 In a case involving
package freight,14 1 a carrier loaded cotton bales on board the ship.
The bill of lading gave the number and weight of the bales but
recited that the weight was "subject to correction." 4' The court
held that, in a suit by the holder of the bill, the carrier was allowed
to contradict the stated weight. The court's rationale was that the
carrier's duty was only to ascertain the number of bales. Because
cotton bales were not bulk cargo, the statement of weight was vol-
untary and gratuitous, and could be qualified.4 s The court in Chi-
cago & Northwestern Railway v. Bewsher,1 " held that the dis-
claimer, "weight subject to correction," in a bill of lading for bulk
freight did not protect the carrier from liability to the holder of
the bill.14'5 The holder in that case received less wheat than the bill
stated. The court reasoned that the words of disclaimer were not of
"like purport" to the protective expressions, such as "shipper's
136. 46 U.S.C. § 1303(4) (1976).

137. George F. Pettinos, Inc. v. American Export Lines, 68 F. Supp. 759, 764 (E.D. Pa.
1946).
138. George F. Pettinos, Inc. v. Thos. & Jno. Brocklebank, 65 F. Supp. 102, 104 (E.D.
Pa. 1944).
139. 49 U.S.C. § 100.
140. The Canadian Carriage of Goods by Water Act, CAN. REv. STAT. ch. C-15, § 6
(1970), is in accord with the Pomerene Act's prohibition of quantity qualifications regarding
bulk freight. The court in "Patagonier" v. Spear & Thorpe, 47 Lloyd's List L.R. 59, 61
(1933) (Hull County Ct.), stated that phrases such as "said to be" and "weight unknown"
were inconsistent with the provision of the Act that entitles the shipper to receive on de-
mand a bill of lading showing the quantity and apparent order and condition of the goods.
Under the Canadian Act, such phrases are of no effect in limiting the liability of the ship for
a shortage in bulk cargo delivered to a consignee. See CAN. REv. STAT. ch. C-15, sched., art.
III (Rules Relating to Bills of Lading).
141. Leigh Ellis & Co. v. Payne, 274 F. 443 (N.D. Ga.), a/f'd on other grounds sub nom.,
Leigh Ellis & Co. v. Davis, 276 F. 400 (5th Cir. 1921).
142. Id. at 445.
143. Id. at 446-47.
144. 6 F.2d 947 (8th Cir. 1925).
145. Id. at 953-54.
weight, load and count," listed in the Pomerene Act. ""

Rusting of steel products shipped by sea has presented carri-
ers with a delicate problem. The bill's description of rust arguably
could either clause the bill or simply limit the carrier's liability.
For example, a bill of lading for steel pipe stated, "in apparent
good order and condition, unless otherwise mentioned in this bill
of lading."1 7 The bill also contained a provision applicable to
metal goods in particular: "The term 'apparent good order and
condition' when used . . . with reference to iron, steel or metal
products does not mean that the goods when received, were free of
visible rust or moisture." 1 8 The court found that these notations
were not a representation that the steel was in good order and con-
dition. The carrier was not estopped to show that the steel pipe
was rusted when received from the consignor. A carrier is not liable
for slight atmospheric rust, even when it issued a clean bill of lad-
ing for steel products. "[Tihe misrepresentation [is] of no signifi-
cance, for such rust comes off in the manufacturing process and
causes no loss.""" If the steel has "flaky" rust, which impairs the
structural condition of the metal, the carrier is probably liable for
the misrepresentation if it issued a clean bill of lading.8 0
B. CarrierLiability to the Consignee or Buyer of the Clean

Bill of Lading
A consignee or holder of a bill of lading must fulfill three re-
quirements in order to recover damages for false representations in
a clean bill of lading: First, the consignee or buyer must commence
the action within the applicable statute of limitations period; sec-
ond, he must show that he relied on the bill's representations; and
third, he must allege actual damages. 5 '
Some courts, in determining the applicable statute of limita-
tions, have distinguished between misrepresentations of quality
146. Id. at 954.

147. Tokio Marine & Fire Ins. Co. v. Retla S.S. Co., 426 F.2d 1372, 1374 (9th Cir. 1970);
cf. Dorsid Trading Co. v. S.S. Rose, 343 F. Supp. 617 (S.D. Tex. 1972) (bill of lading that
limits application of "apparent order and condition" clause not violative of COGSA unless
complete statement demanded).
148. Tokio Marine & Fire Ins. Co. v. Retla S.S. Co., 426 F.2d 1373, 1374 (9th Cir. 1970).
149. Copco Steel & Eng'g Co. v. S.S. Alwaki, 131 F. Supp. 332, 334 (S.D.N.Y. 1955).
150. Id.
151. COGSA, for example, provides that "the carrier and the ship shall be discharged
from all liability in respect of loss or damage unless suit is brought within one year after
delivery of the goods or the date when the goods should have been delivered ... " 46 U.S.C.
§ 1303(6).
and quantity of goods. In Switzerland General Insurance Co. v.

Navigazione Libera Triestina, S.A.,' 152 a clean bill of lading mis-
represented the quality of goods. The court held that the consignee
had to commence suit within the applicable one-year period. Since
he did not, the expiration of the limitations period was a valid de-
fense by the shipowner. 15 Other courts have held that a misrepre-
sentation of the quantity of goods is a fundamental breach. In
cases both of nonreceipt"" and partial receipt "5 of goods, the mis-
representation of quantity deprives the carrier of the statute of
limitations defense. " For the consignee or buyer to assert that the
carrier is estopped from denying that it issued a clean bill of lad-
ing, the buyer must show that he relied on the bill's
representations.
Two English cases considered the buyer's reliance in deter-
mining the applicability of the estoppel doctrine. In the first case,
The Skarp, 57 the court held that bills of lading reciting that goods
"shipped in good order and condition" were not qualified by the
captain's insertion of the typewritten word "condition" before the
printed phrase, "quality, description, and measurement un-
known."'M5 The court noted that in effect, "[t]he bill of lading as it
stands makes the two diametrically contradictory statements: (1)
'Shipped in good order and condition'; and (2) 'condition un-
152. 91 F.2d 960 (2d Cir. 1937).

153. Id. at 962-63. In Switzerland the carrier had received damaged goods-
cheese-from the shipper but issued a clean bill of lading in reliance on an indemnity agree-
ment with the shipper. See infra text accompanying notes 171-207 (discussion of indemnity
agreements). The consignee sued the insurer and won. The insurer then sought subrogation
against the carrier; by that time, the one-year statute of limitations period had run. The
court held that the shipowner could validly assert the statute of limitations de-
fense-despite the insurer's argument and the lower court's finding that compliance with
the one-year period was practically impossible. The court suggested, however, that its deci-
sion would be different if the bill had misrepresented the quantity of the goods rather than
the quality. 91 F.2d at 963.
154. Olivier Straw Goods Corp. v. Osaka Shosen Kaisha, 47 F.2d 878 (2d Cir. 1931)
(shipowner precluded from invoking valuation clauses which would have limited his
liability).
155. Insurance Co. of N. Am. v. The S.S. Exminster, 127 F. Supp. 541 (S.D.N.Y. 1954).
156. Olivier Straw Goods Corp. v. Osaka Shosen Kaisha, 47 F.2d 878, 879 (2d Cir.
1931). Courts also have found that a provision in a bill of lading requiring a consignee to
notify the carrier of any claim regarding damaged goods within a fixed period of time is
ineffective where the carrier has misled the consignee by issuing a clean bill of lading. The
Carso, 53 F.2d 374 (2d Cir. 1931); Higgins v. Anglo-Algerian S.S. Co., 248 F. 386 (2d Cir.
1918).
157. 1935 P. 134.
158. Id. at 139.
known.' 169 Both statements were false because the captain knew
that the timber was wet, moldy, and in bad condition when deliv-
ered to the ship. The court held that estoppel would have been
effective had the buyer relied on the bills of lading. Since, however,
the underlying sales contract gave the buyers an absolute duty to
accept and pay for the goods, with the right to demand arbitration
if the goods were defective, the buyers were unable to prove reli-
ance on the recitals in the bills.
In the second case, 160 a carrier issued clean bills of lading for a
shipment of tapioca. The tapioca was wet when loaded. The mate's
receipts noted the damaged condition, but this information was
not transferred to the bills. The buyers sued, but the carrier coun-
tered that there was no reliance, since the underlying sales con-
tract provided that an inspector's quality certificate was to be final
as between the seller and the buyers. This certificate stated that
the tapioca did not have an excessive moisture content. The court
pointed out that the carrier was a stranger to the sales contract. To
allow the carrier to rely on the terms of that contract to escape
liability would constitute a windfall. Therefore, the court held that
the carrier was estopped from denying the clean bill of lading.
Finding that the buyers would have rejected the documents had
they been properly claused, the court held that the necessary reli-
ance was shown. A rejection under these circumstances would have
constituted a breach by the buyers of the contract of sale, but, the
court explained, the hypothetical breach was irrelevant to the car-
rier's liability.16 1
Other cases reject even more tenuous findings of buyer's reli-
ance on clean bills of lading. In Cummins Sales & Service, Inc. v.
London & Overseas Insurance Co., 162 the court found sufficient re-
liance where the buyer paid part of the purchase price before ship-
ment and later accepted sight drafts. One court found sufficient
reliance even though the consignee knew that the shipment was
short when he paid on the bills.1"
The consignee or buyer must prove reliance to argue success-
fully that the carrier is estopped from contradicting the bill of lad-
ing. The consignee cannot meet this burden if he relied on recitals
159. Id. at 142.

160. Peter Cremer v. General Carriers S.A., [1973] 2 Lloyd's L.R. 366 (Q.B.).
161. Id. at 373.
162. 476 F.2d 498 (5th Cir. 1973).
163. Pacific Micronesian Line v. New Zealand Ins. Co., 397 F.2d 236 (9th Cir. 1968).
in the inspection certificates. 1 "1The court in Freedman v. The M1

S Concordia Star,165 found no reliance because the consignee had
actually inspected the goods before shipment."l1 The consignee or
buyer also must allege damages resulting from the misrepresenta-
tions in the bill of lading. The buyer is in a better position to do so
if he has preserved evidence of the value of the goods. In Toho
Bussan Kaisha, Ltd. v.American President Lines, 1 67 for example,
a shipowner issued fraudulent bills of lading. The buyer received
the goods and sold them. Absent proof of how much he received
for the goods, the buyer had no cause of action against the carrier.
The measure of damages in a case in which the consignee paid
for goods in reliance on a clean bill of lading is usually the differ-
ence between the market value of the goods as described in the bill
at the place of destination and their actual value at the same
point. 8 This measure of damages, however, is not exclusive: "nu-
merous cases have awarded the reasonable and necessary costs for
repairing or reconditioning the damaged cargo where such costs
were less than the diminution in market value sustained and did
not exceed the value of the cargo prior to injury."" If a large por-
tion of a shipment of goods must be inspected and reconditioned
to avoid condemnation of the entire shipment by government au-
thorities the buyer may recover these costs.""
III. THE CLEAN BILL OF LADING AS CONSIDERATION FOR THE

SHIPPER'S AGREEMENT TO INDEMNIFY THE CARRIER
Carriers often enter into indemnity agreements with shippers.

In return for the carrier's issuing a clean bill of lading, the shipper
agrees to indemnify the carrier in a suit by the consignee of the
goods. Problems arise when the quality, condition, or quantity of
the goods received by the shipowner is not accurately represented
164. See Plata Am. Trading, Inc. v. Lancashire, 29 Misc. 2d 246, 214 N.Y.S.2d 43 (Sup.
Ct. 1957).
165. 250 F.2d 867 (2d Cir. 1958).
166. After inspecting the skins, the buyer stated, "I can't accept the skins in this condi-
tion. I bought sound skins." Nevertheless, he paid for the goods. Id. at 869. The buyer did
not rely on the clean bills of lading because he had inspected the goods.
167. 265 F.2d 418 (2d Cir. 1959).
168. See, e.g., Interstate Steel Corp. v. S.S. "Crystal Gem," 317 F. Supp. 112 (S.D.N.Y.
1970); Empresa Central Mercantil De Representacoes, Ltda. v. Republic of Braz., 147 F.
Supp. 778 (1957), a/I'd, 257 F.2d 747 (2d Cir. 1958).
169. Interstate Steel Corp. v. S.S. "Crystal Gem," 317 F. Supp. 112, 121 (S.D.N.Y.
1970).
170. Standard Brands, Inc. v. The Radja, 114 F. Supp. 456 (N.D. Cal. 1953).
in the clean bill. Where the carrier knew that the goods were dam-
aged when received, most courts hold the issuance of a clean bill to
be a fraud on the consignee or subsequent holders of the bill. The
indemnity agreement between the carrier and the shipper is then
no defense in a suit by the consignee against the carrier.17 1 As early
as 1918, a court addressed the problem of a fraudulent clean bill of
lading that had been issued in exchange for the shipper's agree-
ment to indemnify. 172 In Higgins v. Anglo-Algerian S.S. Co.,17 3 a
shipowner issued a clean bill for three thousand crates of dates.
Two-thirds of the cargo had been damaged by rain before ship-
ment. Subsequent holders of the bill sued the carrier for breach of
the carriage contract. The shipowner referred to a recital in the bill
of lading purporting to exonerate the carrier of liability for "rain,
spring, sweat, or land damage.' ' 74 The shipowner contended that
the clean bill was issued because the shipper had agreed to indem-
nify the shipowner in the event of loss. The court held that, since
the carrier's misrepresentation was fraudulent rather than merely
negligent, the shipowner could not assert the indemnity agreement
as a defense against the consignee, but could do so in a separate
17 5
suit against the shipper.
Later cases also applied the rule that the carrier is precluded
from asserting the indemnity agreement as a defense in a suit by a
consignee. In Lamborn & Co. v. Compania Maritima del Ner-
vion, 7 purchasers of clean bills of lading for sugar received dam-
aged goods. They sued the steamship owner for breach of the car-
riage contract. The shipowner defended on the ground that it
issued the clean bill only because the shipper had agreed to indem-
171. See Dent v. Glen Line Ltd., 45 Com. Cas. 244 (Comm'l Ct. 1940). In Dent a ship's
agents issued clean bills of lading though they knew the goods described in the bills, pea-
nuts, were not in good order. They were induced to do so by the shipper's agreement to
indemnify. The court held that the agents were later estopped from pleading that the pea-
nuts were in bad condition. The court found them liable to the buyer of the goods, whose
bank would not have paid for the goods had the bill been properly claused to reflect the
peanuts' true condition. See also Empresa Central Mercantil De Representacoes, Ltda. v.
Republic of Braz., 257 F.2d 747 (2d Cir. 1958). In Empresa a shipowner, knowing of the
damaged condition of the goods, issued a clean bill of lading for steel sheets. The court
deemed this a fraud on the buyer of the steel. But see United Baltic Corp. v. Dundee, Perth
& London Shipping Co., 32 Lloyd's List L.R. 272 (K.B. 1928). In Baltic the court upheld
carrier's right to recover under an oral indemnity agreement where the damage to the goods
was minor.
172. See Higgins v. Anglo-Algerian S.S. Co., 248 F. 386 (2d Cir. 1918).
173. Id.
174. Id. at 387.
175. Id. at 388.
176. 19 F.2d 155 (S.D.N.Y. 1927).
nify it in such suits. The court did not permit this defense because
the shipowner had participated in the fraud. The shipowner would
have to bring a subsequent suit against the shipper to recover
under the indemnity contract. In Baltic Cotton Co. v. United
States,1 " a shipper persuaded a carrier to issue clean bills of lad-
ing for damaged cotton, in return for the shipper's agreement to
indemnify the carrier. The buyer of the bills of lading sued the
shipowner. The court found for the buyer' 78 and awarded damages
7
against the carrier.'
Fraud by the carrier has not always been necessary for a court
to refuse to recognize an indemnity agreement as a defense in a
suit by a consignee against a carrier. Other wrongdoing may give
rise to the same result. In The Kerlew, 80 for example, there was an
express indemnity agreement in which the shipper was to hold the
carrier harmless for damages resulting from weak packing cases.
The bill of lading provided that the shipowner was not responsible
for "damage of any kind brought about by the inherent nature of
the goods loaded or by the packing being insufficient, weak or con-
trary to regulations."' 18 The Kerlew court held that the carrier was
negligent with respect to the storage, care, and delivery of the
goods when the carrier knew that the crates were fragile and im-
properly fastened. The court held that the carrier was liable for the
damaged and lost goods and that the caveat in the bill of lading
2 8
was no defense.1
Carroll v. Royal Mail Steam Packet Co.' 83 did not involve a
177. 50 F.2d 257 (S.D. Ala. 1931).

178. The court discussed no authority or theory for its decision, apparently simply as-
suming the carrier was liable,
179. The damage award was modest. The court found the buyer's proof of the details of
the salvage, restoration, and resale unsatisfactory. Many of the buyer's statements were la-
beled "manifestly untrue." Baltic Cotton, 50 F.2d at 258. The buyers stated that they were
unable to supply the-requested information. The court reasoned that "[a]ny business con-
cern, dealing in a commodity such as cotton, who buys it and sells it for a profit in these
days of accurate bookkeeping, are necessarily able to trace any particular bale or lot of
cotton so as to show, not only who they bought it from, but who they sold it to." Id. at 258-
59.
The Baltic Cotton case may be called the "Two wrongs don't make a right" case. The
court stated, "If libelants recover less damages than they should, they have no one to blame
but themselves, for, in an effort to speculate on the findings of the commission, they sup-
pressed evidence that would have definitely ascertained the amount of their damage." Id. at
260.
180. 43 F.2d 732 (S.D.N.Y. 1924).
181. Id. at 733.
182. Id. at 736.
183. 130 Ore. 294, 279 P. 861 (1929).
fraudulent indemnity agreement. The shipper issued an indemnity

letter to induce an overly conscientious carrier to issue a clean bill.
The shipper delivered 3,674 boxes of apples to the ship. The car-
rier took exception to two of the boxes, which had been
recoopered. The shipper then issued an indemnity letter stating
that the shipper "agree[d] to save and hold harmless the steamer
and/or owners and/or agents from any claim or consequence aris-
ing out of our not having placed the exceptions above noted, on the
Bills of Lading issued to you."'"" The apples arrived at their desti-
nation damaged by improper refrigeration while on board the ship.
The shipper sued the carrier. The court held that the indemnity
agreement referred primarily to the two recoopered boxes of apples
and so did not relieve the carrier of liability for its negligence with
regard to all the apples. 185 The court did not address the question
whether the clean bill of lading might have misled an innocent
consignee of the goods as to the two apparently damaged boxes of
apples.
Shipowners have argued that indemnity agreements should be
enforceable where a misrepresentation in a clean bill of lading is
unrelated to the specific damage claimed by the consignee. In The
Carso,"' 1,050 cases of cheese were shipped from Italy to New
York. All of the cheese was infected with maggots before shipment.
At the time of shipment, 162 cases appeared to be in good condi-
tion and order, 420 cases were broken, and 468 cases were stained
by their leaking contents. 87 The shipowner issued clean bills of
lading for the first two groups of cases. For the third group of 468
cases, however, clean bills of lading were issued only after the ship-
pers agreed to indemnify the carrier. 8 8 The consignees sued the
carrier for the damage to the cheese. The shipowner argued that if
the court found that the issuance of the clean bills constituted mis-
representation, then the misrepresentations were not related to the
damage of which the consignee complained.
The court held that the carrier could not have discovered the
preshipment infestation of the cheese in the 162 unbroken cases;
the carrier's issuance of the clean bill of lading for these cases did
184. Id. at 297, 279 P. at 862.

185. The court held that a ship cannot contract against its own negligence. Id. at 303,
279 P. at 864.
186. 53 F.2d 374 (2d Cir. 1931).
187. The maggots caused the leaking by boring holes in the cheese, which allowed but-
ter fat and olive oil to leak through the wooden slats of the cases, thereby causing the
staining.
188. The Carso, 53 F.2d at 376.
estop the carrier from proving the true condition of the cheese."'
The court further held that the misrepresentation of the apparent
good order and condition of the 420 broken cases was unrelated to
the damage at issue-the infestation of the cheese itself. The court
stated, "The carrier would be estopped to show that these cases
were not broken, but not to Show that the damage was caused by
skippers [maggots] which had attacked the cheese before ship-
ment."' 90 The court found that the staining of the last group of 468
cases should have indicated to the carrier that there was a defect
in the goods involving progressive decay.' 9 ' The court found, there-
fore, that the buyer was damaged by his reliance on the false reci-
tal of the condition of the 468 leaking cases. The carrier was es-
topped from asserting that this cheese was defective prior to
92
shipment.
In Continex, Inc. v. The Flying Independent,'" a carrier ar-
gued that a misrepresentation in a clean bill was unrelated to the
damage of which the consignee complained. In Continex, the ship-
per delivered 150 steel envelopes containing annealed steel sheets.
The ship's mate noticed that the covers of several envelopes were
"buckled" and "slightly rusty."' 94 The carrier, however, issued a
clean bill of lading in exchange for the shipper's indemnification
agreement. The steel sheets had been improperly loaded into the
envelopes and were damaged before they reached the ship. The
carrier asserted the Carso rule that a bill's misrepresentations, if
unrelated to the consignee's damage, did not estop the shipowner
from proving that the damage occurred before shipment. The Con-
tinex court held that the damaged and rusty condition of the steel
envelopes and their contents should have been apparent to the car-
rier; thus it was estopped from qualifying the clean bill. 95 The
court stated that since the clean bill of lading was issued in consid-
189. Id.
190. Id. at 376-77.
191. Although the bill of lading stated that "the carrier was not to be responsible for
damage arising from 'vermin . . . leakage, wastage . . . decay, heating, [or] sweating,'" id.
at 376, the court held that the carrier could not invoke these exceptions when it made a
false representation about the merchandise's condition, and when the decay was promoted
by conditions that the carrier said did not exist. Id. at 379.
192. Id. at 378-79.
193. 106 F. Supp. 319 (S.D.N.Y. 1952).
194. Id. at 320; see supra notes 146-50 and accompanying text.
195. The court discussed The Carso and could have easily resolved the problem before
it by a simple analogy to the stained cases in The Carso: the outside appearance of the steel
envelopes indicated that the contents might be damaged, and estoppel was proper because
of the consignee's reliance on the clean bill.
eration of the shipper's agreement to indemnify, the transaction

compelled the inference that the steel was damaged when delivered
to the ship.' 96
A shipowner may be liable to a consignee even where the con-
signee partly induced the issuance of a clean bill of lading contain-
ing false recitals. In Flota Mercante del Estado v. Orient Insur-
ance Co.,19 a shipper-consignee delivered barrels of aspirin to the
ship. The carrier refused to accept the barrels until twenty-nine of
them were recoopered. After this was done, the shipper-consignee
issued a letter of guaranty in which it agreed to hold the carrier
harmless for any loss or damage with respect to the twenty-nine
barrels. When the goods arrived at their destination in Argentina,
many of the barrels were damaged and their contents lost or dam-
aged. Only two of the recoopered barrels were damaged. The ship-
per-consignee recovered from its insurer, which in turn sued and
recovered from the carrier by subrogation. The court reasoned that
the fact that the carrier had required a number of barrels to be
recoopered, implied that all of the barrels had been "scrutinized
prior to acceptance and the barrels which had apparent defects
were noted and repaired, indicating that the remaining barrels
were in apparent good condition."' 198
The same reasoniAg that precludes the carrier from defending
against liability to the consignee may prevent it from recovering
from the shipper on the indemnity agreement."9e The English court
that decided the 1957 case of Brown Jenkinson & Co. v. Percy
Dalton (London) Ltd.'0 0 held that it was contrary to public policy
to allow the carrier to recover from the shipper under an indem-
nity agreement-even though the consignee injured by the fraudu-
196. 106 F. Supp. at 321.

197. 198 F.2d 740 (5th Cir. 1952).
198. Id. at 742. The court also noted that the damaged barrels left wet marks on the
floor of the warehouse in Buenos Aires, the goods' destination. The court explained that if
the aspirin had been damaged by wetting upon receipt from the shipper, the barrels would
have also left wet marks on the warehouse floor at the port of shipment. The shipowner,
however, had never brought this to anyone's attention.
199. In fact, one court has held that a carrier's issuing a clean bill of lading in return
for an indemnity agreement so contravened COGSA's purposes that the shipowner could
not recover from the shipper the extra costs generated by its having to repackage the goods
and delay the ship's departure. Hellenic Lines v. Chemoleum Corp., 36 A.D.2d 944, 321
N.Y.S.2d 399 (1971). The court noted, however, that there was no reason why the shipowner
could not replead its case and proceed on the theory of the shipper's negligence in the pack-
aging of the goods, pleading the indemnity agreement as an admission by the shipper. Id. at
945, 321 N.Y.S.2d at 401.
200. (1957] 2 Q.B. 621.
lent clean bill was fully compensated by the carrier's insurer. In

Brown Jenkinson the carrier knew that the goods, barrels of or-
ange juice, were old and leaky. It issued clean bills of lading at the
shipper's request, upon securing an express indemnity agreement.
The carrier eventually compensated the consignees for their loss.
When the carrier tried to recover from the shippers under the in-
deminity agreement, the shippers refused to pay, alleging that the
indemnity contract was illegal and unenforceable because its object
involved a fraudulent misrepresentation by the shipowners. The
court found that the shipowners had not intended to defraud the
buyers, but held that the shipper's promise to indemnify the car-
rier was nonetheless unenforceable. The court further held that the
carrier was liable for the tort of deceit.20 1
An indemnity agreement between a carrier and a shipper does
not always make the carrier liable to the consignee for preshipment
damage to goods.02 In Groban v. S.S. Pegu, 0 s a bill of lading
stated that goods were "shipped in apparent good order and condi-
tion, except as noted below." '0 The bill then recited a list of ex-
ceptions.205 The court found these exceptions sufficient to clause
201. Id. at 632, 640. An analysis of the majority and dissenting opinions reveals that the
judges were reluctant to absolve the shippers of liability under the indemnity agreement.
The decision may have been based on the shipowner's knowledge of the shippers' intent to
use the clean bill to procure payment from the consignees, who were bankers. Id. at 625.
Scrutton suggests that Brown Jenkinson overruled the earlier English case of Groves &
Sons v. Webb & Kenward, 85 L.J.K.B. 1533 (1916). T. ScRUtrrrO, supra note 36, at 110 n.57.
In Groves bailors engaged lightermen (a lighter is a vessel of shallow draft used to transport
cargo to and from a ship anchored in deep water) to transport wheat to a warehouse. At the
bailors' request, the wharfingers issued clean delivery warrants for a stated quantity of
wheat, though they had not received the stated amount because of a leak in one of the
lighters. The wharfingers paid damages to a purchaser of the delivery warrants, and the
court held that there was an implied promise by the bailors to indemnify the wharfingers.
The different facts of Groves and Brown Jenkinson probably account for the contrary
results. Unlike the situation in Brown Jenkinson, in Groves neither the wharfinger nor the
bailor was aware that the goods were damaged. There was no intent to deceive in the wharf-
ingers' issuance of the warrants.
202. In fact, both majority opinions in Brown Jenkinson suggest that there may be
circumstances in which an indemnity agreement would be legal and enforceable. Such a
situation would exist where the shipper believed the shipowner was wrong in its assessment
that the goods were not in good order when received. In that case, the shipper would agree
to an indemnity contract to reassure the overly conscientious shipowner. [1957] 2 Q.B. at
638-39.
203. 331 F. Supp. 883 (S.D.N.Y. 1971).
204. Id. at 887.
205. The exceptions noted were:
"Cargo loaded in Second hand condition
12 Case [sic] loaded broken
11 C/S less in dispute by ship's tally if on board to be delivered.
the bill and to put the reasonable purchaser of the bill on notice
that the goods were defective.2 0 6 The court held that the purchaser
did not pay value or detrimentally rely on any misdescription of
the condition of the goods in the bill. In Groban, a bank, under a
letter of credit, paid a draft upon presentment of the foul bill of
lading because the bill was accompanied by a separate indemnity
agreement from the shipper's bank. Although the buyer had the
option of attempting to enforce the indemnity agreement against
the shipper, he chose instead to sue the carrier. The court held
that the indemnity agreement was not issued to induce the carrier
to issue a clean bill of lading; it was designed simply to induce the
issuing bank to pay on the letter of credit. Therefore, the court
reasoned, the buyer could not recover from the carrier. 0 7
IV. THE EUROPEAN LAW OF BILLS OF LADING
A. Italy
In Italy, the carriage of goods by sea is regulated by the
Codice Delle Leggi Sulla Navigazione.20 8 The Code details the con-
tents of the bill of lading and defines the respective responsibilities
of shippers and carriers.
Under the Italian Code, the shipper must prepare and deliver
to the carrier a "loading declaration."'10 This document must state
the nature, quality, and quantity of the goods and packages to be
loaded and transported.21 0 This document is the basis of the car-
rier's bill of lading.
The carrier must either deliver an order of loading to the ship-
per at the time transport is engaged or present the shipper with a
receipt for shipment upon delivery.2 11 The shipper is entitled to
receive a bill of lading issued in the carrier's name. If the bill of
lading is not issued at the time the goods are loaded on the ship,
the ship's master must deliver a "board note" for the goods within
twenty-four hours.212 If the bill is issued after loading, it must state
2 Bdles more in dispute by ship's tally if on board to be delivered."

Id.
206. Id. at 889.
207. Id. at 887-89; see supra notes 171-98 and accompanying text.
208. COMcE DELLz LEGGI SULLA NAVIGAZIONE [C.L.N.] (P. Manca trans. 1958).
209. Id. art. 457.
210. Id.
211. Id. art. 458.
212. Id. art. 459.
that the goods were loaded on board.21 The bill is then evidence
that the carrier received and loaded the goods.214
Like the shipper's loading declaration, the bill of lading must
state the nature, quality, and quantity of goods, as well as the
number of packages and their marks.2 5 The bill must also state
the apparent condition of the goods and packages.21 If the carrier
is unable to verify the shipper's statements in the loading declara-
tion regarding the nature, quality, and quantity of the goods and
packages, the Code permits the carrier to indicate this fact on the
bill of lading.2 17 The phrases "weight, measures, quantity un-
known" or "particulars furnished by the Shipper" are sufficient.2 18
If the carrier fails to make such notations, the information on the
bill of lading is presumed correct.219 If the carrier makes such nota-
tions on the bill of lading, however, and the shipper raises no ob-
20
jections, the notations are binding.
The Italian Code contains no provision concerning the issu-
ance of a clean bill of lading in consideration of an indemnity
agreement by the shipper. Plinio Manca, an Italian commentator,
stated, "[T]his silence is praiseworthy from every respect as such
[agreements] are illegal and have the sole or principal object of de-
ceiving the innocent bona fide holder of the bill of lading. ' 22 1 That
writer acknowledged, however, the contrary view that indemnity
agreements should be enforced as between the contracting parties,
22
even if they are invalid as to third parties.2
The argument for limited validity is based on the practical
consideration that such agreements are necessary where the carrier
is not able to verify the accuracy of the shipper's description of the
nature, quality, and quantity of the goods. Manca argued that the
carrier's desire to limit its liability does not justify the use of mis-
representations in the bill of lading, since the carrier may achieve
the same result by clausing the bill of lading. Manca pointed out
213. Id.
214. Id.
215. Id. art. 460.
216. Id.
217. Id. art. 462.
218. Id. at 206 comment 3.
219. Id. art. 462. The COGSA rules also allow the issuer to place exonerating language
in the bill when the issuer suspects that the statements furnished by the shipper are not
accurate. See 46 U.S.C. § 1303(c) (1976). Manca suggests, however, that the Italian Code is
more restrictive. C.L.N. at 206 comment 3.
220. C.L.N. at 205 comment 2.
221. Id. at 207 comment 4.
222. Id.
that an indemnity agreement may not insulate the carrier from lia-
bility in all circumstances. The shipper may argue that the dam-
ages are not covered by the agreement and refuse to indemnify the
carrier in a suit by a consignee.2 2 If the consignee waits to sue the
carrier until nearly the end of the limitations period, the statute of
limitations may bar the carrier's indemnity action against the
shipper. 4
B. France
France's Law of June 18, 1966 and Decree of December 31,
1966 regulate marine charters and shipping contracts.22 5 Unlike the
Italian Navigation Code, French law specifically addresses indem-
nity agreements and clean bills of lading.2 26 Under French law, if a
shipper induces a carrier to issue a clean bill of lading where the
carrier suspects that the goods are not in good order, but is unable
to substantiate this suspicion, then the carrier can recover on the
indemnity agreement against the shipper. If the carrier had actual
or constructive notice of the defects when it issued the clean bill of
lading, the carrier may not recover from the shipper.2 2 The French
statutory treatment of clean bills of lading thus conflicts with
Manca's commentary on the Italian Code. 2 8
C. Germany
The German Commercial Code or Handelsgesetzbuch2 29 regu-
lates the carriage of goods by sea in West Germany. Like the Ital-
ian Code of Navigation, the German code details the respective
rights and responsibilities of ships and carriers. Under this code,
the carrier or its authorized agent is required to draw up a
"shipped" bill of lading when the goods are loaded on board.23
The bill of lading must contain a full description of the goods in-
cluding the measure, weight, distinctive marks, and externally rec-
ognizable quality of the goods.23
223. Id.
224. Id.
225. W. TETLEY, MARINE CARGO CLAIMS 509 app. (2d ed. 1978).
226. See 1966 DaUoz-Sirey, Legislation [D.S.L.] 264, translated in W. TTLEY, supra
note 225, at 607 app.; 1967 D.S.L. 65, translated in W. TETLEY, supra note 225, at 613 app.
227. W. TETLEY, supra note 225, at 406.
228. See supra notes 221-24 and accompanying text.
229. HANDELSGESETZBUCH [HGB] (W. Ger.) (S. Goren & I. Forrester trans. 1979).
230. Id. § 642(1).
231. Id. § 643(8).
The German code does not expressly mention carrier liability

based on clean bills of lading. At the shipper's request, the particu-
lars of the goods must be recorded in the bill "in the same detail as
notified in writing by the [shipper] before the loading had be-
gun."2 2 The carrier is excused from complying with this request if
the carrier has reason to believe the furnished particulars are inac-
curate or if it does not have an adequate opportunity to verify
them, the carrier need not record them in the bill.2"' The shipper is
strictly liable to the carrier for damages caused by incorrect partic-
ulars as to measure, count, weight, and identification marks. 34 Ab-
sent fault, however, the shipper is not liable to third parties or the
carrier for incorrect particulars concerning the kind and condition
of the goods.2 5
The German code provides that the bill of lading raises a pre-
sumption that the carrier received the goods as described.2 " If the
carrier believes, however, that the shipper's particulars are inaccu-
rate, or if the carrier does not have time to verify the particulars,
then the carrier may place an addendum to that effect in the bill of
lading.2 87 The addendum defeats the presumption that the goods
2 33
were received as described in the bill.
If the carrier issues a clean bill of lading in consideration of an
indemnity agreement by the shipper, the agreement, called a "Re-
vers," is valid against the shipper where the defects in the goods
are shown to be minor or nonexistent. 23 9 If the shipper and issuer
of the bill have actual knowledge of defects in the goods, however,
the "Revers" is fraudulent and void.2 40 Both the shipper and the
issuer of the bill are then liable in tort.2" 1 When the condition of
the goods at the time of shipment is unclear, the circumstances of
each case control. If the ship's master, in good faith, accepts the
shipper's assurances that the goods are not defective, the "Revers"
is valid against the shipper and the master is not liable in tort.2 2 If
the ship's master negligently accepts the shipper's assurances,
232. Id. § 645(1).

233. Id. § 645(2)2.
234. Id. § 563(1).
235. Id. § 564(1).
236. Id. § 656(2).
237. Id.
238. Id.
239. H. PRUSSMAN, SEEHANDELSRECHT 756 (1968).
240. BURGERLICHES GESETZBUCH [BGB] § 138 (W. Ger.) (I. Forrester, S. Goren & H.
Ilgen trans. 1975); H. PRUSSMAN, supra note 239, at 756.
241. BGB §§ 823(2), 826; H. PRUSSMAN, supra note 239, at 756.
242. H. PRUSSMAN, supra note 239, at 757, 758.
however, the master may be liable under the German Commercial

Code.2 "
V. INTERNATIONAL CONVENTIONS AFFECTING BILLS OF LADING
Nations have many different methods of conducting business.

The free flow of international commerce would be disrupted if any
one nation refused to recognize the validity of bills of lading issued
in other countries. Representatives of nations have sought to es-
tablish international conventions governing bills of lading and de-
termining the respective liabilities of shippers and carriers.2
These international conventions have created uniform standards
for carriage of goods by air, road, rail, and sea.
The Warsaw Convention, 2 " concerning the carriage of goods
by air, is unique in its treatment of the clean bill of lading concept.
Under the Convention an air carrier has the right to demand that
the consignor prepare and deliver the aeronautical equivalent of a
bill of lading, called the "air waybill. ' 2s4 To limit its liability, the
consignor must specify the exact quality as well as the quantity of
the goods.247 Although not a prerequisite for limitation of liability,
the air waybill must describe the "apparent condition of the goods
243. HGB §§ 511-512. The author is indebted to Dr. Albert Helm, Nuremberg, Ger-
many, for his kind assistance in supplying and translating material in footnotes 239-43 of
this article.
244. The purpose of these international conventions is to determine in advance whether
the shipper or the carrier will be liable for any loss or damage to the transported goods. One
convention, for example, even limits the carrier's liability to a specified amount. See United
Nations Convention on the Carriage of Goods by Sea (The Hamburg Rules) art. 6, opened
for signature March 31, 1978, 17 I.L.M. 603 (1978) (not yet in force). The convention has
been signed, but not ratified, by the United States. U.N. Doc. ST/LEG/SER.E/1, at 434
(1981).
245. Warsaw Convention, opened for signature, Oct. 12, 1929, 49 Stat. 3000, T.S. No.
876, 137 L.N.T.S. 13. The purpose of the Warsaw Convention was to regulate uniformly
international air transportation. Representatives of more than thirty nations assembled in
Warsaw, Poland to create a uniform policy regarding bills of lading and limitation of liabil-
ity. The United States declared its adherence to the Warsaw Convention in 1934.
246. Id. art. 5.
247. The air waybill must contain inter alia,
(g) The nature of the goods;
(h) The number of packages, the method of packing, and the particular marks or
numbers upon them;
(i) The weight, the quantity, the volume, or dimensions of the goods;
(j) The apparent condition of the goods and of the packing.
Id. art. 8(g)-0). Courts have disagreed as to whether subsection (i) requires the consignor to
list all the terms to limit its liability. See Corocraft, Ltd. v. Pan Am. Airways, [19681 2
Lloyd's L.R. 459 (C.A.).
and of the packing." ' 8

The Warsaw Convention makes the consignor responsible for
the accuracy of the air waybill. If the descriptions are incorrect or
incomplete, the consignor is liable to the carrier or to third parties
for all damages caused by the misstatements.4 9 The carrier, on the
other hand, is only liable if the statements were checked by the
carrier's agent in the presence of the consignor, or if they relate to
the apparent condition of the goods. 50
The International Convention Concerning the Carriage of
Goods by Rail (CIM)" 1 makes the sender of goods responsible for
the correctness of all entries and declarations made by it in the
consignment note. 2 The sender is liable to the railway company
for any damages resulting from inadequate packing.5 3 If the con-
signment note does not mention that the packing was inadequate,
the burden of proving the absence or inadequacy of packing falls
on the railway. 54 The railway has the right to verify the sender's
statements in the consignment note. 25 The carrier must invite the
sender or consignee to be present during the examination of the
goods. If the examination takes place in transit or if the sender or
consignee fails to appear, then the railway may examine the goods
in the presence of two witnesses, unless local regulation provides
otherwise. 2 6 The results of the examination, including any defects
in the goods, must then be recorded in the consignment note.3 7
248. Warsaw Convention art. 8(j).

249. Id. art. 10(2). In addition, article 11(2) provides that "statements in the air waybill
relating to the weight, dimensions, and packing of the goods, as well as those relating to the
number of packages, shall be prima facie evidence of the facts stated."
250. Article 11(2) provides that "those [statements] relating to the quantity, volume,
and condition of the goods shall not constitute evidence against the carrier except so far as
they both have been, and are stated in the air waybill to have been, checked by him in the
presence of the consignor, or relate to the apparent condition of the goods."
251. International Convention Concerning the Carriage of Goods by Rail (CIM), Oct.
25, 1952, 241 U.N.T.S. 357. The purpose of this Convention was to regulate legal relations
arising from international rail transportation. The Convention only applies to rail transport
between two contracting countries. It does not, however, affect the internal domestic laws
and regulations of member countries relating to carriage by rail. CIM is essentially a Euro-
pean system because some English-speaking countries have uniform laws and regulations
based on the common law.
252. Id. art. 7.1-
253. Id. art. 12.4.
254. Id.
255. Id. art. 7.2. The railway is also authorized to weigh the goods and to make
surcharges for the freight. Id. art. 7.3, .5, .7.
256. Id. art. 7.2.
257. Id. It is interesting to note that if the goods are loaded by the sender, the state-
ments of weight or number of packages shall be evidence against the railway only when this
Surprisingly, under the Convention, the railway may require

the sender to indicate specifically the damaged condition of goods
in the consignment note." The Convention, however, makes no
mention of the railway's liability for its issuance of a clean bill of
lading for apparently damaged goods. The presence or absence of
notations about the condition of the goods possibly would affect
the burden of proof at trial.
The Convention for the International Carriage of Goods by
Road (CMR)" e contains several provisions concerning consign-
ment notes used in road transportation of goods. e Under this
Convention, a contract of carriage is confirmed and valid when
both the sender and carrier complete and sign three original copies
of the consignment note. " ' The carriage contract then remains
valid between the shipper and carrier, even if the consignment
2
note contains irregularities or is lost.'
The sender has several responsibilities under the carriage con-
tract. It must specify on the consignment note the number of pack-
ages, the gross weight, the nature of the goods' common use, and
the method of packing.2' The sender is liable to the carrier for any
damage resulting from the defective packaging of goods "unless the
defect was apparent or known to the carrier at the time when he
4
took over the goods and he made no reservations concerning it.'2
The carrier is responsible for checking the accuracy of the
sender's statements in the consignment note about the quality and
quantity of the goods.2' If the carrier has any reservations about
the condition of the goods, these must be indicated on the re-
ceipt. "6 If the carrier makes no reservations, a presumption arises
that the goods were in apparent good condition and the number of
information has been verified by the railway and certified in the consignment note. These
particulars may, however, be proved by other means. Id. art. 8.4.
258. Id. art. 12.1.
259. Convention on the Contract for the International Carriage of Goods by Road
(CMR), opened for signature May 19, 1956, 399 U.N.T.S. 189. The purpose of this Conven-
tion was to standarize conditions governing contracts for the international carriage of goods
by road. Representatives from many European nations met in Geneva to create a uniform
policy on bills of lading and the carrier's liability.
260. Id. arts. 4-6.
261. Id. art. 5.1.
262. Id. art. 4.
263. Id. art. 6.1(f)-(h).
264. Id. art. 10.
265. Id. art. 8.1.
266. Id. art. 8.2. "Such reservations shall not bind the sender unless he has expressly
agreed to be bound by them in the consignment note." Id.
packages correct when the carrier received them.2 7 The carrier is

not, however, liable for damage caused by defective packing of
goods which are, by their nature, susceptible to wastage or damage
when improperly packed. "
The Final Act of the United Nations Conference on the Car-
riage of Goods by Sea," 9 known as the Hamburg Rules, follows the
theme of COGSA2 71 that "[wihen the carrier . . . takes the goods
in his charge, the carrier must, on demand of the shipper, issue to
the shipper a bill of lading. '2 7 1 Under the Hamburg Rules, the bill
of lading must include information about the general nature,
weight, quantity, 27 2 and apparent condition of the goods.2 73 If the
bill of lading does not note the goods' condition, then the carrier is
deemed to have represented the apparent good condition of the
goods.2 4 The bill of lading becomes prima facie evidence of the
loading of the goods.2 7 5 In addition, the carrier may not challenge
the bill of lading once it has been transferred to a third party who
has relied in good faith on the description of the goods in the bill
27 6
of lading.
Article seventeen of the Hamburg Rules defines the respective
duties and liabilities of shippers and carriers with respect to bills
of lading.2 77 If the shipper furnishes the carrier with information
267. Id. art. 9.2.

268. Id. art. 17.4(b).
269. United Nations Convention on the Carriage of Goods by Sea (Hamburg Rules),
opened for signature Mar. 31, 1978, 17 I.L.M. 603 (1978). The purpose of the Hamburg
Rules was to regulate uniformly the carriage of goods by sea. Representatives from more
than seventy-eight nations assembled at Hamburg, Germany to create a uniform, interna-
tional policy for contracts and limitations of liability between the carrier and the shipper of
goods by sea.
270. The Carriage of Goods by Sea Act, 46 U.S.C. §§ 1300-1315 (1976), is the American
version of the International Convention on the Carriage of Goods by Sea for the Unification
of Certain Rules Relating to Bills of Lading (Hague Rules), Aug. 25, 1924, 51 Stat. 233, T.S.
No. 931, 120 L.N.T.S. 155. The Hamburg Rules are intended to take the place of the Hague
Rules. See generally Murray, The Hamburg Rules: A Comparative Analysis, 12 LAW. AM.
59 (1980).
271. Hamburg Rules art. 14.1.
272. Article 15.1(a) of the Hamburg Rules requires the bill of lading to include:
the general nature of the goods, the leading marks necessary for identification of
the goods, an express statement, if applicable, as to the dangerous character of
the goods, the number of packages or pieces, and the weight of the goods or their
quantity otherwise expressed, all such particulars as furnished by the shipper.
273. Id. art. 15.1(b).
274. Id. art. 16.2.
275. Id. art. 16.3(a).
276. Id. art. 16.3(b).
277. Article 17 of the Hamburg Rules follows the general policy of section 7-301(5) of
the Uniform Commercial Code which provides:
about the condition of goods delivered for shipment, the shipper is

deemed to have guaranteed the accuracy of this information and is
required to indemnify the carrier for any resulting losses 2 78 The
carrier may not assert this indemnification agreement as a defense
in a suit by a third party.2 79 A carrier may assert the indemnifica-
tion agreement against a third party only where the carrier has
noted in the bill its reservations about the condition of the
goods.2 I
Subsection three of article seventeen 281 of the Convention can
be interpreted in two different ways. Under one interpretation, the
carrier may not recover from the shipper where the carrier in-
tended to defraud the consignee or other third party. Thus, the
carrier may not recover if it failed to include in the bill of lading
important information supplied by the shipper.
Under the second interpretation, this harsh result does not ob-
tain where the carrier issued a clean bill of lading in reliance on an
indemnification agreement with the shipper. Thus, even if a carrier
knew the goods were not in good condition, but issued the clean
bill in reliance on the indemnity agreement, then the carrier may
28 2
recover from the shipper.
These four international conventions have achieved two im-
portant goals. First, they have specified the information that must
be included in a bill of lading. Second, they have defined the re-
spective rights and liabilities of shippers and carriers. These con-
ventions have achieved a high degree of uniformity in the regula-
The shipper shall be deemed to have guaranteed to the issuer the accuracy
at the time of shipment of the description, marks, labels, number, kind, quanti-
ty, condition and weight, as furnished by him; and the shipper shall indemnify
the issuer against damage caused by inaccuracies in such particulars. The right
of the issuer to such indemnity shall in no way limit his responsibility and liabil-
ity under the contract of carriage to any person other than the shipper.
U.C.C. § 7-301(5) (1978).
278. Hamburg Rules art. 17.1.
279. Id. art. 17.2.
280. Id.
281. Article 17.3 of the Rules states:
Such letter of guarantee or agreement is valid as against the shipper unless the
carrier or the person acting on his behalf, by omitting the reservation referred to
in paragraph 2 of this article, intends to defraud a third party, including a con-
signee, who acts in reliance on the description of the goods in the bill of lading.
In the latter case, if the reservation omitted relates to particulars furnished by
the shipper for insertion in the bill of lading, the carrier has no right of indem-
nity from the shipper pursuant to paragraph 1 of this article.
282. For a discussion of different approaches to the validity of indemnification agree-
ments between the carrier and the shipper, see Brown Jenkinson & Co., [1957] 2 Q.B. 621.
See also supra text accompanying notes 229-39.
732 UNIVERSITY OF MIAMI LAW REVIEW [Vol. 37:689
tion of commercial trade by air, road, rail, and sea.
VI. CONCLUSION
The bill of lading has played an important role in the history
of commercial transactions. Judges, legislators, and convention
representatives have labored to create uniform rules governing bills
of lading. Specifically, they have focused their attention on the
type of information bills must contain, and the extent of shippers'
and carriers' liability for damaged'goods. With increased uniform-
ity, through refinements of statutory and common law, the number
of disputes involving liability for damaged goods should decrease.
This should lead to more efficient, and therefore more productive,
national and international commerce.

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History and Development of the Bill of Lading

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The author reviews the history and development of bills of

I. HISTORY AND DEVELOPMENT OF THE CLEAN BILL OF LADING ................. 690

Before the advent of air travel, sellers would send goods to a

* Professor of Law, University of Miami.

I. HISTORY AND DEVELOPMENT OF THE CLEAN BILL OF LADING

A. Common Law Before 1851

found in bills for goods shipped from Spain or goods owned by

is meant." It became the usual practice for a master to insert in

In the landmark case of Grant v. Norway,"' an English court

1. CARRIER LIABILITY FOR QUANTITY RECITALS IN THE CLEAN BILL

16. 10 C.B. 665, 138 Eng. Rep. 263 (C.P. 1851).

Two years later, in 1855, the court in Coleman v. Riches 22 held

22. 16 C.B. 104, 139 Eng. Rep. 695 (C.P. 1855).

ship. In this dual capacity, he signed a bill of lading for slightly

b. Detrimental Reliance and Disclaimers

33. Id. at 422.

from denying its truth, to his prejudice.'

42. 106 N.Y. at 199, 12 N.E. at 433-34.

"We can see no difference in principle between a misrepresentation

c. The.Lien Theory of Carrier Liability

Even where the courts allowed the holder of a bill of lading to

49. Id. at 133.

2. CARRIER LIABILITY FOR QUALITY RECITALS IN THE CLEAN BILL OF

The first American decision to recognize that not all recitals of

55. 7 Mass. 297 (1811).

and well-conditioned." The master, in his own handwriting,

62. Id. at 1270.

quality marks on the bill."

referred to the condition of the interior merchandise, which was

national shipping. The Act applies not only to shipments between

The UBLA evidenced a rejection of the common-law rule that

91. See supra notes 16-34 and accompanying text.

the goods and incurs damages caused by the nonreceipt or misde-

99. Section 22 of the Act states:

goods were received in the stated order. 1 12 This statement of ap-

II. THE CLEAN BILL OF LADING TODAY

Professors Gilmore and Black claim that, because "the carrier

122. G. GILMORE & C. BLACK, supra note 15, at 122.

his charge and to deliver them as described in the bill of lading. If

131. 235 N.Y. 306, 139 N.E. 277. (1923).

A similar problem arises when the bill of lading recites the

136. 46 U.S.C. § 1303(4) (1976).

weight, load and count," listed in the Pomerene Act. ""

B. CarrierLiability to the Consignee or Buyer of the Clean

146. Id. at 954.

and quantity of goods. In Switzerland General Insurance Co. v.

152. 91 F.2d 960 (2d Cir. 1937).

159. Id. at 142.

in the inspection certificates. 1 "1The court in Freedman v. The M1

III. THE CLEAN BILL OF LADING AS CONSIDERATION FOR THE

Carriers often enter into indemnity agreements with shippers.

177. 50 F.2d 257 (S.D. Ala. 1931).

fraudulent indemnity agreement. The shipper issued an indemnity

184. Id. at 297, 279 P. at 862.

eration of the shipper's agreement to indemnify, the transaction