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Carriage of goods
Is your jurisdiction party to any international conventions on the carriage of goods by sea? If so, does the relevant domestic implementing law contain any notable modifications (eg, extensions to the scope of application)?
If the contract of carriage is covered by a bill of lading or any similar document of title, the Hague Visby Rules (the Hague Rules as amended by the Brussels Protocol 1968) are applicable to the carriage.
What is the official extent of the carrier’s responsibility for goods?
The contract of carriage is regulated by the law of the flag, unless the parties agree otherwise. The Hague Visby Rules are widely applicable with an extent of liability equivalent to 666.67 special drawing rights per package or unit(s) of account per kilo of gross weight of the goods lost or damaged, whichever is the higher, unless the shipper declared a higher value in the bill of lading. The limitation of liability does not apply if it is proved that the damage resulted from an action or omission of the carrier done with the intent to cause damage or recklessly and with the knowledge that damage would likely occur.
Contractual limitation of liability
May parties contract out of any legal provisions governing cargo liability?
Parties must refer to the Hague Visby Rules.
Title to sue
Who has title to sue on a bill of lading?
The legitimate holder of the bill of lading has title to sue. This is usually the receiver of the goods.
What is the time bar for cargo claims?
The time bar for cargo claims is one year from delivery of the cargo or from the date on which it should have been delivered. However, this period may be extended on agreement of the parties after the cause of action has arisen.
Definition of ‘carrier’ and ‘goods’
How are ‘carrier’ and ‘goods’ defined in respect of cargo claims? Is there any especially pertinent case law on this issue?
'Carrier' includes the shipowner or charterer that enters into a contract of carriage with a shipper. 'Goods' includes goods, wares, merchandise and articles of every kind, excluding live animals and cargo, which is stated in the contract of carriage as being carried on deck and is so carried.
Defences available to carrier
Under what circumstances may the carrier rely on the perils of the sea defence? What other defences are available to the carrier?
Under the Hague Visby Rules, neither the carrier nor the ship will be liable for loss or damage arising or resulting from unseaworthiness, unless such damage is caused by want of due diligence on the part of the carrier to make the ship seaworthy. Neither the carrier nor the ship will be responsible for loss or damage arising or resulting from:
- the action, neglect or default of the master, mariner, pilot or servants of the carrier in the navigation or management of the ship;
- fire, unless caused by the actual fault or privity of the carrier;
- perils, dangers or accidents of the sea or other navigable waters;
- acts of:
- war; or
- public enemies;
- the arrest or restraint of rulers or people, or seizures under legal processes;
- quarantine restrictions;
- actions or omissions of the shipper or the owner of the goods, its agent or representative;
- strikes, lockouts, stoppage or restraints of labour for whatever cause, whether partial or general;
- riots and civil commotions;
- saving or attempting to save life or property at sea;
- wastage in bulk of weight or any other loss or damage arising from an inherent defect, quality or vice of the goods;
- insufficient packing;
- insufficient or inadequate marks;
- latent defects not discoverable by due diligence; and
- any other cause arising without the actual fault or privity of the carrier, or without the fault or neglect of the agents or servants of the carrier; however, the burden of proof will be on the person claiming the benefit of this exception to show that neither the actual fault or privity of the carrier nor the fault or neglect of the agents or servants of the carrier contributed to the loss or damage.
What legal protections and defences against cargo claims are available to agents of the carrier and other third parties (eg, Himalaya clauses)?
The same legal defences are available to agents and third parties as are available to the carrier.
Deviation from route
Under what circumstances is deviation from the agreed route allowed?
Deviation from the agreed route is permitted in order to save life or goods at sea. Pursuant to the Hague Visby Rules, any deviation in saving or attempting to save life or property at sea, or any reasonable deviation, will not be deemed to be an infringement or breach of the rules or the contract of carriage, and the carrier will not be liable for any loss or damage resulting therefrom.
Claims against shipper
What claims can the carrier pursue in respect of the shipper’s failure to meet its obligations?
The shipper will be deemed to have guaranteed to the carrier the accuracy – at the time of shipment – of the marks, number, quantity and weight of goods, as furnished by it. In addition, the shipper will indemnify the carrier against all loss, damages and expenses arising or resulting from inaccuracies in such particulars.
Multimodal carriage of goods
How is multimodal carriage regulated in your jurisdiction?
The laws governing each phase of carriage are applicable.