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Carrier Liability - Essay Example

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Apparent from the facts of the case is that the seller may not have fulfilled his contractual obligations to the buyer. Rats were found clinging to the bagged rice, with it remaining indeterminate as to when and from where they came. Uncontested, however, are the facts which indicate that when loading and storing into the ship's hold, crew members did not report this and, as a result, a clean bill of lading was issued…
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Carrier Liability
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Download file to see previous pages It is, however, necessary to refer to the Hague-Visby Rules (hereinafter referred to as HVR) and case law in order to investigate the carrier's liability.
The HVR function to clarify the duties owed to, and responsibilities owed by, cargo liners, providing a comprehensive explication of the circumstances and types of damages to cargo which carriers are not liable for as well as those that they may be held liable for. Further, and as established by CoGSA (1971) and by national courts, HVR is applicable when either party to the dispute is a member of a Contracting State.1 With these points in mind, the issues to be investigated are, firstly, whether HVR is applicable in this instance and, secondly, in case of applicability, whether the carrier is liable for the damages to the rice.
As determined by English law, and as further emphasised through CoGSA, HVR is enforceable upon carriers travelling from any port in Great Britain and Northern Ireland to any port within it.2 More relevant, however, is the fact that it is enforceable upon carriers that are travelling from a port or to any port which is party to HVR.3 The implication here is the HVR is enforceable as both the USA and Netherlands are parties to HVR. Within the context of the stated, it is important to note that Articles III, 1c and III, 2 of HVR establish the carrier as responsible for ensuring that its holds and chambers are well-suited for the storage of cargo, including their preservation and protection.4 These articles further emphasise that the carrier, including its personnel, are obligated to exercise all due caution to safely store and protect the goods.5 Furthermore, as stipulated in Article II, not only is the carrier responsible for the safe storage of the cargo but it is further liable for any damages which may befall the goods through loading and stowing.6
The above mentioned articles are immediately relevant to the question of the carrier's liability towards the damages which the rates may have wreaked upon the bagged rice. In brief, they establish liability as a direct outcome of the failure of the crew to exercise due care regarding the protection of the cargo from damages.
The carrier's liability is established by HVR. HVR, Article IV, 2b states that the carrier is not liable for damages to cargo by "fire, unless caused by the actual fault or privity of the carrier." 7 This liability directly arises from Article IV, 1's assertion that the carrier and its personnel are obligated to exercise all "due diligence" to ensure that the ship is seaworthy and its crew fit.8 The crew did not exercise the requisite due diligence, as is evident from the failure to report the sighting of the rates and, the vessel was not seaworthy, a fact which takes on additional importance when considering liability for delay in delivery.
Case law supports the argument pertaining to the carrier's liability, as in the matter of Papera Traders Co Ltd & Ors V (1) Hyundai Merchant Marine Co Ltd (2) Keihin Co Ltd Sub Nom Eurasian Dream (2002)9 In this case, the cargo owners sued the carrier following the occurrence of a fire which destroyed the cargo and rendered the vessel a total loss. As the owners of the ...Download file to see next pagesRead More
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