The Federal Court of Canada granted the plaintiff, freight forwarder, in Kuehne + Nagel v Agrimax Ltd. 2010 FC 1303 summary judgment for freight paid on behalf of the defendant and for sum they were liable to pay in demurrage. 

The Honourable Justice Harrington of the Federal Court of Canada said “Agrimax Ltd. refuses to pay Kuehne + Nagels’s account because it did the right thing. It refused to issue a fraudulent bill of lading”. 

The court held that pursuant to its contract with Agrimax, the plaintiff made arrangements with Blue Anchor Line for the shipment of 22 containers of crude sulphur to be received at Irricana, Alberta, for pre-carriage by truck and rail to Vancouver where the cargo was to be loaded on board the OOCL Kuala Lumpur for carriage to and discharge at Haldia, India. 

The bill of lading issued by the plaintiff, as agents for Blue Anchor Line, was dated at Calgary on 25 August 2008. The cargo is said to have been “received for shipment in apparent good order and condition” at Irricana and shipped on board OOCL Kuala Lumpur on September 4, 2008. 

The purchaser’s bank refused to take up the bills of lading and refused to honour the letter of credit on the grounds that the shipment was to have commenced by 31 August 2008.  Agrimax requested that the bill of lading be altered to remove the date on which the cargo had been shipped on board the OOCL Kuala Lumpur, wanting the “erroneous date of September 4, 2008” to be removed and called for an “on board bill”. 

In its analysis the trial judge described that a bill of lading contains various representation on behalf of the carrier, including the date when the cargo was “received for shipment” or “shipped” on board, as the case may be.  

Under the Hague-Visby Rules, Schedule 1 to the Marine Liability Act, a shipper may simply demand a “received for shipment” bill of lading, and irrespective of whether or not it demanded a “received for shipment” bill of lading, it may also demand a “shipped” bill of lading, once the cargo is loaded on board the carrying ship.

In this case, Agrimax Ltd. demanded, after the fact, an amendment to the bill of lading so that the date the cargo was taken on board the OOCL Kuala Lumpur would not appear. The court held that the plaintiff was absolutely right in its refusal to amend the bill of lading. 

In passing, the trial judge noted that “some carriers have, at their folly, issued such documents against letter of credit”, but such letters of indemnity are unenforceable under both English and Canadian law. 

David Keith Alderson LL.B, LL.M (Lond.)

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