Title: A legal Overview and the usage of Trade Footings in the
Gross saless and Carriage of Goods by Sea & A ; Justifiable and Indefensible Deviation.
Contentss: ( 1 ) Terminologies and processs
( 2 ) Legal issues of the Hague-Visby Rules
( 3 )Justifiable and Indefensible Deviation
( 4 ) Bibliography
In a cross-border dealing dwelling of the transportation of goods from one state to another by sea, apart from the exporter and importer, there are many other intermediary parties involved. As a consequence, in parallel but, independently of the chief contract [ 1 ] , the exporter and importer frequently enter into secondary contracts such as insurance, bureau, passenger car of goods by sea and missive of credits. The party who will bear the costs related to cargo, insurance and other transit costs is determined by the types of understanding between the marketer and purchaser. [ 2 ]
( 1 ) Terminologies and processs
In pattern, depending on the goods to be transported, there are two types of passenger car contract, viz. , under ameasure of ladlingwhich is regulated by statutory commissariats and under acharterpartywhich falls under common jurisprudence regulations.Whereas the former is suited for the passenger car of smaller measures of goods ( packed in boxes ) , the latter is appropriate for the transit of goods such as grains, coal or oil which requires the whole infinite on a ship [ 3 ] .
A measure of cargo is the documental cogent evidence of a passenger car contract between the ship proprietor, known as the bearer and the exporter, known as the shipper. As acknowledged inLickbarrow V Mason ( 1794 ), the measure of cargo is besides a papers of rubric to the goods agreed to be delivered to the consignee. [ 4 ] It can besides be rendered a negotiable instrument as per the wants of the shipper.
In pattern, due to the complexnesss of such minutess and to better efficiency, both parties enter into understandings through their several mediators ; theforwarderbeing instructed by the shipper to securecargo[ 5 ] infinite for the lading from the carrier’s agent, thelading agent. There are different types of cargos such asball amount cargo, postpaid cargo, pro rata cargoandback cargo; these are designed to provide for the different demands of shippers [ 6 ] .
Asailing card, issued by the burden agent informs the shipper of the topographic point and clip the ship is ready to have the goods [ 7 ] . Before lading, tally clerks, who inspect the lading record any defect in the packaging or in the goods themselves in a papers known as themate’s reception[ 8 ] which is subsequently incorporated in the measure of ladling.At this point, it is clear that formation and public presentation of the passenger car contract precede the issue of the measure of ladling. InThe Ardennes ( 1951 ), it was held that any orally agreed footings which is non reflected in the measure of cargo, takes precedency over the latter’s footings and conditions.
In an epoch of globalization, such minutess involve many states and parties of different nationalities, subjecting passenger car contracts to many possible legal powers. To advance certainty, efficiency and equity, the regulations regulating measures of ladling were harmonised. TheHague Rules,ratified by many states was reviewed by theBrussels Protocol of 1968and is now known as theHague-Visby Rules. This was subsequently revised by theUnited Nations Convention on the Carriage of Goods by Sea 1978and theHamburg Rules which has a larger pertinence came into force in 1992. At present, whereas the Hague-Visby Rues is in force in the UK through thePassenger car of Goods Act 1971, the United States still adheres to Hague Rules and 20 states have ratified the Hamburg Rules [ 9 ] . It is to be noted that The Hague-Visby Rules is non applicable as per Article 1 ( degree Celsius ) and Article VI [ 10 ] ; in such state of affairss the dealing is governed by the English common jurisprudence which leaves much contractual freedom to the parties.
( 2 ) Legal issues of the Hague-Visby Rules
Contractually, the bearer owes the shipper certain responsibilities and vice-versa and any clause in the passenger car contract which decreases the carrier’s liability in relation to Article III is void and nothingness ;The Saudi Prince ( 1988 )Under Article III [ 11 ] , the bearer is apt merely if his retainers, agents or he is negligent. [ 12 ] This is to be contrasted with the common jurisprudence regulations where inSteel Vs State Line Steamship Co ( 1877 ), the tribunal held the bearer apt for non supplying a seaworthy ship even though he was non negligent. For the intent of Article III, fitness included “cargoworthiness” ; inAlimport V Iasmos Shipping Co SAwhere the ship was infested with insects, therefore rendering discharge of the goods impossible due to the authorities’ prohibition, the tribunal held the ship to be unseaworthy [ 13 ] .
Article IV exempts from liability the bearer where unseaworthiness is caused without any carelessness. The load rests on the proprietor of the lading to turn out that the harm or loss caused to the goods resulted from the unseaworthiness of the ship ;Minister of Food v Reardon Smith line Ltd ( 1951 ). At this point, the load of proof displacements on the bearer to turn out that his agents or retainers and he have non been negligent ;Phillips Petroleum Co V Cabanali Naviera SA.Rule 2 [ 14 ] of Article IV specifies events under which the bearer is non apt for the loss or harm of the lading. To trust on Rule 2 exclusions, the bearer has the load of turn outing that loss or harm resulted from the specified events.
Unless the value stated, Article IV Rule 5 provides for a maximal bound of 666.67 units per bundle or 2 units per kilogramme, of amendss recoverable. The unit of history is a particular drawing right ( SDR ) as defined by the International Monetary Fund [ 15 ] and can be converted in national currencies. Such a ceiling can non by understanding of the parties, be decreased ;The Hollandia Case ( 1983 ).
Refering unsafe goods, the tribunal, inThe Giannis NK ( 1998 )[ 16 ] , following a broad reading of Article IV Rule 6, held that “dangerous goods included goods which were indirectly unsafe in that they were apt to give rise to the loss of other cargo.” and that Article IV Rule 6 [ 17 ] takes precedency other Article IV Rule 3 [ 18 ] .
It is to be remembered that under Article III Rule 6, a claim against the bearer for loss of or damage to the goods can merely be instituted within one twelvemonth. Before taking legal action, it is of import to determine the legal bearer of the goods. Depending on the fortunes, the legal bearer, with whom the passenger car contract is made, can be the shipowner or the charterer. By revoking the Bill of Lading Act 1855, the Carriage of Goods Act 1992 greatly extends the rights of the consignee to action the bearer.
( 3 ) Justifiable and Indefensible Deviation
At common jurisprudence
Whenever, the passenger car of goods contract falls outside the statutory commissariats of the Hague Rules, the Hague-Visby Rules or the Hamburg Rules, English common jurisprudence would regulate the contract. Although, common jurisprudence provides maximal freedom to the parties in determining their understanding harmonizing to their demands, there are some indispensable responsibilities harmonizing to which the footings of the contract must be interpreted, on of which is theresponsibility to transport the goods to the appointive topographic point of finish without divergence.
As a general regulation, the bearer is under an duty to guarantee that the vas under the contract of passenger car proceed on the ocean trip in the usual and customary path. Where the path is non stated in the contract, the customary path may be the usual path taken by ships in the peculiar trade or it could be the path systematically taken by the bearer concerned. The load of turn outing that the path taken was customary remains on the shipowner. InReardon Smith Line Ltd V Black Sea and Baltic Insurance Co ( 1939 ), the bearer called at Constantza for inexpensive sand traps and this added 200 stat mis. Arriving at that place, some of the lading had to be jettisoned. It was decided by the justice that “the shipowner is entitled to trust on his ain wisdom to make up one’s mind where to name at for sand traps every bit long as the determination is reasonable.” In this instance, holding respect to the economical factor, convenience, and the fact that many transportation lines engaged in this pattern, the tribunal held that the ship did non divert.
Furthermore, for the intent of passenger car contracts, legal divergence occurs merely when the physical divergence is knowing. InRio Tinto Co Ltd V Seed Shipping Co ( 1926 )where a physical divergence occurred due to the misunderstanding of navigational instructions of an sick shipmaster, the Court held that no legal divergence occurred due to miss of the needed work forces rea. An of import restriction on the demand for the an purpose to divert is where physical divergence occurred as a consequence of the shipmaster’s mistake, albeit involuntarily ; the House of Lords held inHain Steamship Co Ltd V Tate & A ; Lyle Ltd ( 1936 ), that it was a breach of the responsibility where the divergence was the effect of the shipmaster non having his transportation instructions in clip. [ 19 ]
Common Law Exceptions
First, a divergence is justified if it is necessary to salvage human life. However a divergence to salvage belongings is non justified unless that salvaging the latter is necessary to salvage human life. In the important instance ofScaramanga & A ; Co V Stamp ( 1880) , it was held that: “Deviation for the intent of salvaging life is protected, and involves neither forfeiture of insurance nor liability to the goods proprietor in regard of loss…deviation for the intent of pass oning with a ship is distress is allowable inasmuch as the province of the vas in hurt may affect danger to life…deviation for the exclusive intent of salvaging belongings is non therefore privileged. If hence, the lives of the individuals on board a handicapped ship can be saved without salvaging the ship, as by taking them off, divergence for the intent of salvaging the ship will transport with it all the effects of an unauthorized deviation.” [ 20 ]
Second, a bearer is allowed to divert if the intent of the divergence is to avoid danger to the ship or lading such as exigency fixs or to avoid gaining control by enemy forces [ 21 ] . InJ & A ; R Kish V Charles Taylor, Sons & A ; Co ( 1912 ), divergence was held to be justified even though the ship needed fixs due to its preexistent unseaworthiness. [ 22 ]
Third, divergence may be allowed with the consent of both parties by a ‘liberty clause’ . However, the tribunals have adopted a restrictive attack in their reading. The general regulation is that the ‘liberty clause’ should non be interpreted so as to get the better of the commercial object of the contract. InLeduc v Ward ( 1888 )[ 23 ] , it was held that “it could non be within the contemplation of the parties to handle the words “any ports at any order” to mean…”any port in the world” ; such a building was merely excessively broad and non consistent with the mercantile object of the contract of carriage…”
The restrictive attack was furthered inStag Line Ltd V Foscolo, Mango & A ; Co Ltd ( 1932) , the House of Lords held that the autonomy to divert under a ‘liberty clause’ is acceptable merely when the determination to divert is sensible. However, a clearly drafted ‘liberty clause’ which states that “the ship has the autonomy to name at any port or ports whatsoever in any order in or out of the path or in a contrary way to or beyond the port of destination” must be given full consequence:Connolly Shaw V Nordenfjeldske SS Co ( 1934 ) .[ 24 ]
An undue divergence would ensue in the passenger car contract being suspended:Bailey V Joly, Victoria Co ( 1890 ) .In such a state of affairs, the bearer can non trust on freedom clauses contained in the contract, which is put to an terminal by the breach of the responsibility non to divert, a cardinal status of the contract:Joseph Thorley Ltd V Orchis Steamship Co Ltd ( 1907 ). However, if after the undue divergence occurred, the lading proprietor instructs the bearer to continue to the customary path to execute the dead, contract, the bearer is entitled to trust on freedom clauses contained in the contract which has been brought to life by the lading owner’s instructions. [ 25 ]
Hague-Visby Rules- Carriage of Goods Act 1971
Article IV ( 4 ) :“Any divergence in salvaging or trying to salvage life or belongings at sea or any sensible divergence shall non be deemed to be an violation or breach of these Rules or of the contract of passenger car, and the bearer shall non be apt for any loss or harm ensuing therefrom” . Here the place is less rigorous that at common jurisprudence. It appears that whenever a divergence is sensible, it is justified:Stag Line Ltd V Foscola, Mango & A ; Co. Ltd ( 1932 )where a divergence to debark applied scientists was held to be sensible and justified.
The consequence of undue divergence differs from common jurisprudence. Under the Hague-Visby Rules, although a breach of the responsibility non to divert brings the contract to an terminal, by virtuousness of Section 1 ( 2 ) Passenger car of Goods Act 1971, which give the Rules the force of jurisprudence, the bearer is still entitled to trust on the exclusions to restrict his liability. [ 26 ]
( 4 ) Bibliography
( 1 ) Law of International Trade, J.C.T Chuah, 2neodymiumEdition, Sweet & A ; Maxwell
( 2 ) Schmitthoff’s Export Trade, The Law and Practice of International Trade, Leo D’Arcy, Carole Murray, Barbara Cleave, Sweet and Maxwell, 10ThursdayEdition, 2002
( 3 ) www.lexmerctoria.org
( 4 ) The Law of International Trade, Hans Van Houtte, Sweet and Maxwell, 2neodymiumEdition.
( 5 ) Lexis Nexis Professional: hypertext transfer protocol: //web.lexis-nexis.com/professional