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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)?
The Hague Rules are in force in Malta and were implemented through the Carriage of Goods by Sea Act 1954 (Chapter 140 of the Laws of Malta). The implementation excludes bulk cargo, goods landed in Malta for on-carriage or transhipment to another country and live fish from fishing vessels.
The Maltese courts also apply the Hague-Visby Rules when these rules are incorporated in the bill of lading involved in a dispute. The Rotterdam Rules are not in force in Malta.
What is the official extent of the carrier’s responsibility for goods?
A ‘carrier’ includes the owner or charterer which enters into a contract of carriage with a shipper.
Cargo delivered without production of the bill of lading is misdelivery. The holder of the bill of lading can sue the carrier for breach of contract and the carrier will be held fully responsible for damages without the possibility to limit its liability.
The limitation of liability is possible since a carrier is free to surrender in whole or in part its rights and immunities or to increase any of its responsibilities and liabilities under the rules contained in the Carriage of Goods by Sea Act, provided that such surrender or increase is embodied in the bill of lading issued to the shipper (Article V of Schedule I of the act).
Contractual limitation of liability
May parties contract out of any legal provisions governing cargo liability?
A carrier is at liberty to surrender in whole or in part all or any of its rights, immunities, responsibilities and liabilities under the rules, provided that such surrender or increase is embodied in the bill of lading issued to the shipper. The rules will not apply to charter parties, but if bills of lading are issued in the case of a ship under a charter party, they must comply with the rules.
Notwithstanding the provisions of the preceding articles, a carrier, master or agent of the carrier and a shipper are, in regard to any particular goods, at liberty to enter into an agreement in any terms as to the responsibility and liability of the carrier.
A carrier, master or agent of the carrier and a shipper are, in regard to particular goods, at liberty to enter into an agreement as to the responsibility and liability of the carrier for such goods, and as to the rights and immunities of the carrier in respect of such goods, or its obligation as to seaworthiness, so far as this stipulation is not contrary to public policy, or the care or diligence of its servants or agents in regard to the loading, handling, stowage, carriage, custody, care and discharge of the goods carried by sea, provided that in this case no bill of lading has been or will be issued and that the terms agreed will be embodied in a receipt which will be a non-negotiable document and will be marked as such. However, this provision will not apply to ordinary commercial shipments made in the ordinary course of trade, but only to other shipments where the character or condition of the property to be carried or the circumstances, terms and conditions under which the carriage is to be performed are such as to justify a special agreement.
However, a carrier or a shipper can enter into an agreement, stipulation, condition, reservation or exemption as to the responsibility and liability of the carrier or the ship for the loss or damage to or in connection with the custody, care and handling of goods before the loading and subsequent to the discharge from the ship on which the goods are carried by sea.
The rules do not affect the rights and obligations of the carrier under any statute relating to the limitation of the liability of owners of sea-going vessels.
Title to sue
Who has title to sue on a bill of lading?
The holder or endorsee of a bill of lading has title to sue. It can sue for damages relating to the short delivery or non-delivery of goods covered by the bill of lading.
What is the time bar for cargo claims?
The relevant rules can be found in the Civil Code, the Commercial Code and the Carriage of Goods by Sea Act 1954 (Chapter 140 of the Laws of Malta). The general rule establishes that contractual claims are time-barred after five years. Non-criminal claims in tort are time barred after two years from when action could be exercised. Specific prescription periods apply for certain categories of claim.
Maltese law, in particular the Commercial Code, prescribes a one-year time bar for prescription for a number of matters relating to the carriage of goods. A one-year time limit is also provided for by the Carriage of Goods by Sea Act on the discharge of the cargo for the consignee in order to file a claim against the bill of lading issuer. Unless the prescriptive period is of a peremptory nature, it cannot be interrupted.
Maltese law does not allow parties to agree the extension of time limits for bringing forward an action. However, when a precautionary warrant of arrest of a vessel is filed, the arrested party can allow the other party more time to bring forward an action on the merits by including a note in the records of the warrant.
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?
As defined under Article 1, Schedule 1 of the Carriage of Goods by Sea Act, a ‘carrier’ includes the owner or the charterer which enters into a contract of carriage with a shipper.
The definition of ‘goods’ includes goods, wares, merchandise and every type of article, except live animals and cargo which the contract of carriage is stated as being carried on deck.
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?
Article 2 of the Carriage of Goods by Sea Act lists a number of events under which neither the carrier nor the ship will be responsible for related loss or damage. These are similar to the events set out under the Hague-Visby Rules.
What legal protections and defences against cargo claims are available to agents of the carrier and other third parties (eg, Himalaya clauses)?
Under Maltese law ship agents are considered to be mandatory for the carrier and cannot be found liable for any liability of the carrier. The mandatory is personally liable only for fees and expenses relating to suits. In addition, Article 2(a) of the Carriage of Goods by Sea Act states that neither the carrier nor the ship will be responsible for loss or damage arising or resulting from 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. 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.
Deviation from route
Under what circumstances is deviation from the agreed route allowed?
Under Article 4 of the Carriage of Goods by Sea Act, 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 carrier and the ship owner are not liable for any act or omission of the shipper or owner of the goods, its agent or representative. In this regard the carrier must take precautionary measures to issue the bill of lading which reflect exactly the cargo being loaded on board by the ship.
Multimodal carriage of goods
How is multimodal carriage regulated in your jurisdiction?
The United Nations Convention on International Multimodal Transport of Goods (Geneva 1980) is not in force in Malta and multimodal transport is not regulated in Malta.
With regard to road transport, the International Carriage of Goods by Road Act (Chapter 486 of the Laws of Malta) applies. Where air transport is concerned, the Carriage by Air (International and non-International) Order (Subsidiary Legislation (SL) 499.24) applies the Warsaw Convention and the Montreal Convention.
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