Carriage of Goods by Sea - Essay Example

1 Carriage of Goods by Sea The general principle regarding the application of the Hague Rules is that they apply by their own force (ex proprio rigore) to contract of carriage covered by a bill of lading or any similar document of title. Art. 2 and the definition of “contract of carriage” art. 1 (b) makes this clear.1 .Art.2 – Subject to the provisions of Article 6, under every contract of carriage of goods by sea the carrier, in relation to the loading, handling, stowage, carriage, custody, care and discharge of such goods, shall be subject to the responsibilities and liabilities, and entitled to the rights and immunities hereafter set forth”2 “Article 1 (b) – ‘Contract of Carriage’ applies only to contracts of carriage covered by a bill of lading or a similar document of title, in so far as the document relates to the carriage of goods by sea, including any bill of lading or a similar document as aforesaid issued under or pursuant to a charterparty from the moment at which such bill of lading or similar document of title regulates the relations between a carrier and a holder of the same.3 O chartered his ship to T, who in turn sub-chartered it on a voyage charter to Charlie for the carriage of a consignment of bananas from Jamaica to London. The voyage charter contained inter alia, a clause incorporating the Hague/Visby Rules. The voyage charter also contained a clause stating that the carrier should not deviate under any circumstances whatsoever except to save life. 1Hague/Visby Rules 2Ibid 3Ibid 2 If a cargo requires special care, it is usual for the shippers to give the master or chief officer instructions in writing explaining exactly what is required…4 The extent of application of the Visby Rules as they apply to the contract initiated by Charlie are found is s5(a), (b), (c) and (d), which respectfully specify: (a) a bill of lading is issued in a contracting state – art 10 (a); (b) the carriage is from a port in a contracting state – art 10 (b); or ( c) the rules are incorporated by reference into the contract of carriage – art. 10 (c). (d) National laws may extend the application of the Hague/Visby Rules in virtue of art. 10 last para. To bills of lading mentioned in art. 10 (a), (b) or (c). Thus the UK’s carriage of goods by sea act 1971 at sec.1 (6) (b) applies the Hague/Visby Rules to non-negotiable receipts when they specifically invoke the Hague/Visby Rules.5 Charlie elected to incorporate the non-deviation clause for the specific reason that he was marketing the under ripe bananas as a premium commodity, which had a good market demand as “low GI Food”. The clause was agreed too by the carrier, and he subsequently charged an additional fee in lieu of his compliance to the stipulation. A clean bill of lading and product certification was also issued.6 Moreover, given the nature of the cargo, each party explicitly recognized the ‘inherent vice’ of the cargo. Under the circumstances, both the carrier and the shipper must ask themselves whether the nature of the cargo implicitly, or explicitly by the wording of the contract of carriage itself, requires special care of the cargo, e;g;, refrigeration, or a 4William Tetley, Inherent Vice and Hidden Defects of Goods, Chapter 20 5Hague/Visby Rules 6Quaker Oats Co. v. M/V Torvanger 734 f.2d 238 3 certain height or stow, or a minimum ventilation, or a minimum or maximum temperature, or not more than a certain length of voyage. Such as in the case where apples were carried at temperatures outside of limits set out in the instructions. This put the burden of proving inherent vice on the carrier.6 An inherent vice is one which an innate or natural or normal quality of goods. The generally accepted definition of ‘innate vice’ in England in carriage of goods cases is the unfitness of the goods to withstand the ordinary incidents of the voyage, given the degree of care which the ship owner is required by the contract to exercise in relation to the goods. For example, it is an inherent vice of flour that it shrinks and loses weight with the passage of time.7 The definition of inherent vice in art. 4 (2) (m) of the Hague and Hague/Visby Rules differs in wording, if not also in meaning, from the definition of the same term as applied in marine insurance decisions. The marine insurance definition of ‘inherent vice’ in England is, the risk or deterioration of the goods shipped as a result of their natural behaviour in the ordinary course of the contemplated voyage without the intervention of any fortuitous external accident or casualty.8 The exception works somewhat differently In carriage of goods cases, however, in as much as, even where the carrier proves the existence of the inherent vice, and its causation of the cargo loss or damage, the cargo claimant may nevertheless recover, at least in part if not in full, on proving that the 6White & Son (Hull) Ltd. V. White Star Line Ltd. (the horizons Bay) [1933] 46 LO. L. Rep 189 (County Ct.) Aff’d in (1933) 7Servisious-Expoarma, C.A.V. Industrial Maritime Carriers, Inc. 135 F.3d 984 8Tenneco Resins v. Davy International, AG 811 F. 2d at 211 4 carriers fault or negligence aggravated or contributed to the harm, or was its sole or proximate cause…the breach by the carrier of its overriding obligation of due diligence in respect of seaworthiness can also defeat an inherent defence under art. (2) (m) of the rules.9 The order in claims involving inherent vice follows the normal rules of order and burden of proof of any marine cargo claim. The following order of proof, upheld without discussion of the point was; (a) the claimant proves its loss, (b)the carrier proves the cause of the loss, then due diligence to make the ship seaworthy and then the exculpatory defence of inherent vice or hidden defect, (c) the claimant then proves lack of care by the carrier and (d) each party makes proof in support of other arguments.10 The carriers defence on points (b), and point (d), are automatically negated because of the shippers presentation of the contract, the certificate of condition of goods, and the clean bills of lading, consequently the shipper has no burden. I would advise Charlie that he is to file a claim against T for a lack of due diligence, and a breach of the contract. I am of the opinion that Charlie’s claim will be successful, because he has completely adhered to the letter of the law, in his dealings with the carrier. As for Charlie and Shaun, Charlie must contact him via a formal letter, explaining the circumstances of the misfortune, and enclose a cheque for the full amount advanced to him by Shaun. 9William Tetley, Inherent Vice and Hidden Defect of Goods 10Quaker Oats Works Cited Hague and Hague/Visby Rules Quaker Oats Co. v. MV Torvanges 734 f. 2d 238 Servisious Expoarma, C.A. v. Industrial Maritime Carriers Inc., 135 f. 3d 984 Tenneco Resins v. Davy International, A. G. 811 f.2d at 211 Tetley, William, Inherent Vice and Hidden Defects of Goods, Chapter 20 White & Son (Hull) Ltd. V. White Starline Ltd. (The Horizon Bay) [1933] 46 L.O.L. Rep 189 (County Ct.) Add’d in (1933) Read More