To tally or not to tally? (or about use of quantity unknown clause)
This article appeared, having been caused by the dispute published in the journal ‘The Report’ (issued by the International Institute of Marine Surveyors), several pages of which are usually given for discussions. In the issue of the journal of winter 2001 the readers attention was attracted to the correspondence of one Ukrainian surveyor and Stephen Mills of ‘Rayfield Mills’. The subject of the correspondence was the use of the clause ‘weight, quantity and quality unknown’ in the Bills ofLading. The reference was made to two books, Bills of Lading by Stephen Mills and North of England P&I and Steel Carriage by Sea by Arthur Sparks, where one may find two opposite points of view on the matter. In his letter published in ‘The Report’ Stephen Mills finally says that: ‘my strong advice from the legal
point of view is that all of these clauses are generally understood (as a matter of English law) and widely used and, most importantly, valuable. They are far from being ‘useless and dangerous clauses’ and we disagree, from the legal point of view with what the Sparks publication says’.
This is not to dispute the said legal point of view but just to advise that very often the ‘weight, quantity and quality unknown’ clause causes a lot of problems in Ukrainian ports when the Master puts it down and very often surveyors appointed to assist the Master with clausing the cargo documents find themselves some- where between ‘sledge-hammer and anvil’ - the Shippers and the vessel. My particular concern is ‘quantity’. Stephen Mills correctly states that
‘even if the Master did have some idea of the quantity which have been loaded on board (for example, by way of a draft survey or by way of tally which he had arranged) the shippers would be reluctant to use the Master’s figures as they always have their own idea as to what has been loaded. They insist on having their own figures inserted in the Bill of Lading, and as the Master never knows with certainty what has actually been loaded, again he is justified in making it clear that the figures which have been given to him are ‘unknown as to accuracy, or are the shippers’ figures’, or that the cargo is ‘said to weigh’.
Then he refers to the Judge’s decision at the case ofhe ‘BOUKADOURA’:
‘...the difference between shore and ship’s figures is both inevitable and notorious. The sensible course for the Master to adopt in such circumstances is to clause the Bill of Lading, either generally (’quantity and weight unknown’) or by the recording of ship’s figure alongside the shipper’s’.
What happens in fact? Why shippers have their own idea as to what has been loaded?
Let’s look into a local situation when Shippers despatch a large shipment of, say, steel plates. Upon delivery of the plates to the port the latter receives them by counting of the cargo during its discharge from the cars and stacking at premises (it is worthwhile noting that normal practice of receipt of a steel cargo in the port does not stipulate for its re-weighning so the question about its weight remains open). Data of the Shippers and port are taken by cargo forwarders who prepareshipping orders and clear the cargo at the customs office. This is obvious that all the cargo delivered under the shipper’s documents and received by the port must leave the port on the chartered ship. A priori, provided that all the documents were correct, there must not be any short-loading, because as per the documents all the despatched cargo was received by port, and there must not be any over-loading because in this case the over-loaded cargo should be regarded as smuggling with all following consequences.
In its turn the ship is expected to believe that both the Shippers’ and port’s figures were correct and that all the cargo kept at the port premises was actually loaded on board. As, inevitably, interests of the ship and the cargo interests differ, the belief is not always the case, and the Master thinks that his best protection would be the ‘quantity unknown’ clause. But Master is not always permitted by the Shippers to think.
This is compulsory in our ports to load general cargoes on board the ship under joint tally of the port (stevedoring company) and the ship who has to countersign their port sheets. If for any reason, likely financial, the ship (shipowner, charterer) does not arrange its own tally, she has to simply sign tally sheets of the port which are expected to represent the Shippers’ figures. Indeed, such signing is not normally considered by the Master as acceptance of the shore figures, especially when he marks the tally sheets ‘as per shore figures’. At the same time, when the Master insists on insertion of the ‘quantity unknown’ remark saying of his ‘uncertainty what has actually been loaded’, he should be able to explain two things:
a) what kind of doubt? The vessel was reported of what was loaded per each shift, and,
b) if the Master does not agree with the figures, why no tally was arranged by ship when she was told about obligations to tally the cargo jointly?
It is no doubt that in the circumstances the Master is subject to fall under pressure of the Shippers and their agents. Another case is when the tally for the ship was in fact carried out by an independent company appointed by the shipowner or charterer but the Master does insist on the ‘quantity unknown’ remark. In this case the Master may be denied his assertion that those reported to him by the independent company are figures of the company, not of the ship herself. (It is also worthwhile noting here that to obtain permission to serve the ship the company has to introduce itself and its clients to the cargo forwarders and to the port. If the tally count is carried out at the request of the shipowner/charterer, they regard the tally as the ship’s tally).So, having conducted a great number of independent steel pre- loading surveys and tally works wecan confirm two facts:
- The ‘quantity unknown’ clause is usually not accepted by ‘steel’ Shippers whose cargoes are transshipped via local ports. The Master may be forced to agree to the figures provided by the Shippers as the ship’s non-participation in verifying of quantity of the loaded cargo does not escape local obligations to do this.
- Certainly, the worst position is simply to insert the figures provided by the shippers and not make any attempt to verify them. The best position is to load the ship under ship’s tally count or under tally count performed by an independent company appointed by the shipowners or charterers. Is there any need to do so? Definitely, yes. Below are only two of the problems
which may appear on loading:
- loading is in progress, a parcel of cargo left the storage but did not arrive alongside the ship, port’s storage workers say that the parcel is loaded but in fact it disappeared on its way to the ship the decision could be very simple - to add on paper this parcel to the quantity of the loaded cargo.
- one particular car delivered to the port does not contain the cargo of particular size; at the same way - with mixing of units’ dimensions - it is discharged at the storage into one big pile; such mixed delivery and storage along with congestion of the storage may result in miscount of the cargo upon receipt at the port, and it is no wonder when shipping order for the cargo from this pile contains quantity and dimensions of the plates which differ from their actual ones.
To tally or not to tally? This question should be decided by a shipowner taking into account the particularities of each case. Tally count of cargo, arranged for by a shipowner/charterer would certainly serve the best protection of a carrier’s interests. However tally service, as it is known, presumes monetary expenses. Thus, appointing tallymen, the shipowner should bear in mind financial expediency of the cargo counting and, of course, the fact of claims for short-landing of cargoes on the subject direction, should any occur.