Application of the Hague Visby Rules - Essay Example

Table of Contents Text Introduction Question When do the Hague/Visby rules apply? Question 2 What are the Obligations of the sea carrier to provide seaworthy ship? Question 3 What are types of deficiencies that could render seagoing vessels unseaworthy ?: Table of Contents: Case Laws: Pyrene Co. v. Scindia Steam Navigation Co [1954] 2 QB. 402 at pp. 419-420, [1954] 1 Lloyds Rep. 321 at p. 32 The Rafaela S, [2005] 1 Lloyd’s Rep. 347 (HL), [2003] 2 Lloyd’s Rep. 113 (CA) Jose A Y Gerardo E Zuluaga Limited v. Toledo Shipping Corporation (2002). Dominion Tankers Ltd. v. Shell Petroleum Co. Ltd., [1939] Ex. C.R. 192 at p. 203, 1939 AMC 541 at p. 551 When do the Hague Visby Rules apply? State the obligation of a sea carrier to provide a seaworthy ship under the Hague Visby Rules. Give examples of the types of deficiency that will result in a vessel being unseaworthy Introduction: The main purpose for introducing the Hague Visby rules is to afford a set of rules and conditions to govern liabilities during the Carriage of Goods by Sea. It is also to determine party’s liability in the event of loss or damages to ship and cargo, and accurately ascribe such losses or damages to parties as per law, and the abidement of decisions conferred by Courts in the event of disputes, or litigation. It is seen in the EU context that different countries have different rules governing carriage by sea and therefore it had become necessary to have a set of rules that could be applied uniformly for all countries. The Hague and the Hague/Visby rules are designed to serve this purpose. Moreover, law and contractual obligations to each another bind trade partners, and therefore, all trading has to be done within the ambit of such contractual obligations. In case of any transactions coming outside the scope of trading agreements, this need to be ratified by the respective partners, other wise the implications of litigations cannot be ruled out. It is also intended for protection of consignees or Third parties, who may have material interests in the ship, or its cargo and who has been at the receiving end of losses, or damages caused by proven negligence on the part of the ship owner, the carrier or the crewmembers, or in certain situations, due to perils of the sea. for which any kind of individual blame cannot be imputed. Article 1 (b) of the Brussels Convention specifies “any other kind of document” would also come within its purview, thus enlarging the scope of Hague Visby Rules. (The Hague-Visby Rules1993). Question 1: When do the Hague/Visby rules apply? . In the normal course, it is agreed by member countries that Hague/Visby rules would apply for all cases, except certain exceptional circumstances, all contracts of carriage of goods by sea, whether performed by mouth, or written, and not including cases under Article. 6, which envisages issue of non-negotiable receipts for carriage of non-ordinary goods. (The Hague-Visby Rules1993). Therefore, it could be said to include: 1. Carriage of goods by sea under Bill of Lading, or analogous document of title. 2. Carriage under a non-negotiable bill or Waybill in the ordinary course of business. 3. Oral contracts of Carriage of goods by sea. (Tetley, P.13). The Court’s primary consideration is the Intentions of the parties: It is interesting to note that the Hague/Visby Rules also apply even in cases concerning Bill of Lading, whether or not, a Bill of Lading has actually been issued or not. The main aspect that the courts considered is the intention of the parties to make it a straight bill of lading contract or not. Further, it is seen that the time of application of The Hague and Hague/Visby Rules is from the time the goods are loaded until the time they are discharged. The expression ‘tackle to tackle’ assumed significance since the liability begins when tackles are hooked on to the ship at the time of loading, until the time tackles are removed, or the ship had crossed the port’s rails at the destination port. This assumed significance in the case of Pyrene Co. v. Scindia Steam Navigation Co[1954] 2 QB. 402 at pp. 419-420, [1954] 1 Lloyds Rep. 321 at p. 329. In this case, the cargo was attached to the ship’s tackle and was being loaded when the cargo fell outside the ship. (Tetley, P.14). The Rafaela S, [2005] case: In the landmark case of The Rafaela S, [2005] 1 Lloyd’s Rep. 347 (HL), [2003] 2 Lloyd’s Rep. 113 (CA). The issues related to a part of a voyage that was not covered by Bill of Lading. “The only issue on appeal before the House of Lords in The Rafaela S was, therefore, whether the U.K. COGSA or the U.S. COGSA applied to straight bills issued covering a voyage from England to the U.S.” Since the UK COGSA was less favorable to shipowner than US COGSA, the shipper felt that UK COGSA do not apply to straight bill of ladings. However, the Courts took a view in favor of the Consignees and ruled that COGSA was applicable to straight bills. (Adolfsson & Schelin, 2006). Codifying laws: It may be commented that neither The Hague nor The Hague/Visby Rules is a code in the civil law drafting style. Neither do they codify present laws. At best, they could be said to be some kind of an understanding being made by in order to protect the interests of carriers and shippers at the time of their implementation. These codifying laws need to be properly contextualized in order to derive their full service in the complex areas of shipping and foreign trade, whose legal status may have been besmirched by local laws and trade practices. (Tetley 2004). Question 2: Obligations of the sea carrier to provide seaworthy ship: The second part of the essay deals with responsibilities of sea carrier to ensure that the ship is Sea-worthy. Article III (Rules 1 & 2) specify that carriers have to show due care and assiduousness in matters before and during the voyage. Article III has been categorical in stating that, except in the event of lack of evident care and prudence shown by the ship owner, neither the ship-owner nor the carrier could be held accountable for losses arising due to unship worthiness. “A benefit of insurance in favour of the carrier or similar clause shall be deemed to be a clause relieving the carrier from liability.” (The Hague-Visby Rules1993). The underlying aspect, therefore suggests that, in order to establish liability of ship-owner, the applicant has to prove that the ship was unseaworthy, prior to, and before the commencement of the voyage. On his part, the ship owner has to prove that the ship, was indeed seaworthy prior to, and before the commencement of the voyage, and the losses or damages occurred due to “perils of the sea” as was established in the case of Jose A Y Gerardo E Zuluaga Limited v. Toledo Shipping Corporation (2002). The case related to damage of cargo of garlic under clean Bill of lading, which the claimant claimed, ostensibly arouse due to presence of silver nitrate, caused by seawater entering the cargo through faulty latches in the ship. It is necessary to note that the aspect of seaworthiness or otherwise, is a circumstantial issue and needs to be considered accordingly. The primary issue of seaworthiness is whether the ship holds a Certificate of Seaworthiness, prior to the commencement of its voyage, in which case, subsequent liability would delve upon the ship charterer, or carrier. However, any inherent defect in the ship causing subsequent losses could be a cause for concern since the question of adjudicating liability for losses needs to be considered in right perspective. It is for the arbitrators or Courts, to decide the onus of liability and this may not pass on to the ship owners, carriers or insurance companies. With all fairness to the roles of various players in the contract of carriage- the shipowners, carriers, cargo owners and the insurance companies who have underwritten the risks, it could be said that provision of seaworthiness of the ship may not be an absolute concept but a relative and contextual one. In its narrowest connotation, seaworthiness could be seen in terms of the fact that the ship, prior to, and before the commencement of the commercial voyage, had been certified fit for voyage. Therefore, it could be said that seaworthiness is determined before the commencement of the voyage. Hence, unseaworthinesss occurring during the voyage or during transshipment of cargo at ports of call does not come within the purview of the ship owner’s liability. After the voyage has begun, liability shifts to the carrier, since he is responsible for the transport and safe conduct of the crewmembers, ship and cargo until its destination. Again, there are a number of contingents in terms of length of voyage, weather conditions out at sea, etc. There are also other factors in terms of the fact that sea travel, unlike other modes of transportation are long drawn, fraught with natural and man made dangers and also the consequences of poor planning and logistic management. Once the claimant has made his stand known, the onus shifts to the carrier. In order to substantiate his claim, the real causes for the damages have to be ascertained. This needs to be provided by the carrier since he has been associated with the cargo throughout its voyage. Degree of care: The crux of the issue, which would find favour with Courts, would be the degree of care taken by the various parties. Here acts of both commission and omission are culpable and a party cannot claim exculpation based on his reading of the situation. The degree of care and prudence need to be what ordinary persons, faced with similar circumstance would have taken recourse to do. In the case of Dominion Tankers Ltd. v. Shell Petroleum Co. Ltd., [1939] Ex. C.R. 192 at p. 203, 1939 AMC 541 at p. 551 the Court observed that "the onus on a person relying on an exception relieving him from liability did not go so far as to make him prove all the circumstances which could explain an obscure situation." (Tetley 2006, P.357-371). Question 3: What are types of deficiencies that could render seagoing vessels unseaworthy? The following could render seagoing vessels unseaworthy: 1. Structural defects including non-use of sound water-resistant materials for ship construction. 2. Poor maintenance of critical items like Power Generators, Boilers, Pipes and engine room equipments. 3. Lack of sound communication system and radar. 4. Improper scaffolding and safety equipments. 5. Poorly ventilated and serviced pantry rooms, engine rooms and fireplaces. 6. Loose hatches that could facilitate water ingress during stormy weather at sea. 7. Mechanical damages caused by low insulated wiring and electrical networks. 8. High risk storage system for gas cylinders, furnace oils, engine oils and other highly inflammable Materials. 9. Poor infrastructure to fight engine room fires. 10. Ship designing defects that accentuates during sea calamities. 11. Low standards of Deck safety. Bibliography ADOLFSSON, Jonas., & Schelin, Johan (2006). Legal Qualities of Straight Bills of Lading. [Online]. Last accessed 02 July 2008 at: http://www.juridicum.su.se/transport/Forskning/Uppsatser/UppsatsJonasAdolfsson.pdf The Hague-Visby Rules: The Hague Rules as Amended by the Brussels Protocol 1968: Article 11. (1993). [Online]. jus.uio.no/lm. Last accessed 02 July 2008 at: http://www.jus.uio.no/lm/sea.carriage.hague.visby.rules.1968/doc.html#11 The Hague-Visby Rules: The Hague Rules as Amended by the Brussels Protocol 1968: Article V1. (1993). [Online]. jus.uio.no/lm. Last accessed 02 July 2008 at: http://www.jus.uio.no/lm/sea.carriage.hague.visby.rules.1968/doc.html#70 TETLEY, William. Chapter 1: Application of the Rules Generally. [Online]. P.13. Last accessed 02 July 2008 at: http://www.mcgill.ca/files/maritimelaw/ch1marine.pdf. TETLEY, William. Chapter 1: Application of the Rules Generally. [Online]. P.14. Last accessed 02 July 2008 at: http://www.mcgill.ca/files/maritimelaw/ch1marine.pdf. TETLEY, William (2004). Interpretation and Construction of The Hague, Hague/Visby and Hamburg Rules. [Online]. McGill University. Last accessed 02 July 2008 at: http://www.mcgill.ca/files/maritimelaw/rulesinterpretation.pdf TETLEY, William (2006). The Cause of the Loss or Damage: Degree of Certainty of Cause. P.357-371. [Online]. McGill. Last accessed 02 July 2008 at: http://www.mcgill.ca/maritimelaw/maritime-admiralty/cause/ Read More