The limit of shipowner's liability towards the shipper - Essay Example

The seller (shipper) will not usually make the contract of carriage with the carrier directly. What normally happens is that a forwarding agent will be employed to make the necessary arrangements. Similarly the carrier will employ a loading broker to obtain cargoes for him. The COGSA incorporates an international convention called the Hague-Visby Rules which attempt to strike a balance between the different interests of carriers and cargo owners. However there is an opinion that these Rules are weighted too much in the favour of the carrier.

Therefore another set of rules, The Hamburg Rules came in force on 1st November 1992. So we have the situation where some countries have agreed to become signatories to the Hague-Visby rules, whilst other countries have adopted the Hamburg rules. The UK is not a signatory to the Hamburg Rules. Indeed it is true that the carrier may limit his liability under the COGSA because it creates a one year statute of limitation to bring forth maritime claims, and it allows a stipulation limiting the carrier’s liability to a certain amount, for example.

The aim of the COGSA is to limit the liability of the carrier as insurer and to promote maritime trade in view of the many, often unpredictable perils of the sea. The principle of the Himalaya clause was developed in the British case Adler v. Dickson, 1 Q.B. 158 (C.A.1954), where a passenger, Mrs. Adler, injured on the steamship “Himalaya”, sued master and boatswain in tort because she could not sue the carrier, which was contractually exempt from all liability. The passenger won the case because the contract between her and the company did not have a clause extending the exemption to master and boatswain.

Generally, a "Himalaya clause is any clause in a Bill of Lading which seeks to extend to non-carriers any immunity, defense, limitation