- Do Hague Visby rules apply as contained in the carriage of Goods by Sea Act 1971?
- Conditions of the application Hague Visby rules.
The Hague Visby rules do apply if :
Art 1 (Carriage of Goods by Sea Act 1971)
- The contract is based on a bill of lading or any other document of title.
- Carriage of Goods by Sea is between ports in two different states.
- The goods are not live animals
- If the contract of carriage stated as being carried on deck and is so carried.
- Effect of the exclusion clause
In the case, one clause could put in balance the use of the Hague Visby rules. In fact it is on the first bill of lading “ five containers containing engine parts, liberty to carry on deck”, we have to check if the shipper could carry on deck or not.
The case Simpsons v Thowers complete the first three obligations if we want Hague Visby rules apply. In fact, the contract is regulated by a bill of lading, which has been signed in two parts from contracting states and the goods capacity conform with the law (no live animals or dangerous goods). There are engine parts and 1,000 gallons of paint.
However, with the clause “liberty to carry on deck”, we could ask them in this particular case if the Hague Visby rules cannot apply.
In fact, the clause “liberty to carry on deck” is inadequate even if the contract stated that goods are being carried on deck and are so carried, the Hague Visby rules do not apply.
The carrier and the shipper are free to negotiate their own terms of carriage subject only to the operation of the common law.( JCT Chauh, p 273, 8-11).
Art 1© Rules are satisfied only if:
- The cargo must actually be stowed on deck
- The bill of lading states clearly that this is indeed the case
Moreover in the case law Svenska Traktor, Aktiebolaget v Maritime Agency (Southampton) ltd. (1953) it was stated that: “A mere general liberty to carry goods on deck is not, in my view, a statement in the contract of carriage that goods are in fact, being carrying on deck. To hold otherwise would, in my view, do violence to the ordinary meaning of the words of art. I (c). I accordingly, hold that the ... tractors were being carried by the [ship owners] subject to the obligations imposed on them by art. III, r. 2 of the Act” (ER Hardy Ivamy, 1977, p51).
In this case the Hague Visby rules do apply.
- What is the liability of the carrier for each product?
I will look at the carrier’s duties and defences.
- What is the liability of the carrier for the loss of five containers of engine parts?
- Duties of the carrier
The Article III of the carriage of goods by sea, explains that the “carrier shall properly and carefully load, handle, stow, carry, keep, care for and discharge the goods carried”. In fact, the management of the ship had not taken care of the goods during the carrying. We could say that the crew neglected the unloading of the goods on the deck.
Simpsons Ltd is liable to breach the contract if the crew recognises that they had not cared the goods. Meaning, in this case, they did not respect the clause in the contract.
- Defences of the carrier
In order to transfer a part of his responsibility, the carrier could try to use the article IV (2) of the act “neglect or default of master, mariner, pilot, or the servants of the carrier in the navigation or management of the ship”. Could be considering as a negligence of the ship owner.
This is only possible when the provision refers to the act. If we look on “Carrier’s carriage by sea” p118, they say that the negligence by a ship owner will usually but not necessarily be in connection with unseaworthness.
- What is the responsibility of the carrier for the damage of the paint?
- duties of the Simpsons Ltd
- Make the ship seaworthy - be structurally and mechanically sound, equipped with navigational charts.
- Make the holds fit and safe for [the cargo’s] reception carriage and preservation
- Any subsequent unseaworthiness is not material
The carrier broke one of his legal obligations: the goods were not fit and safe for the cargo’s reception.
- defences of the ship owner
The carrier should not be liable for loss or damage caused by “want of due to diligence or negligence”
The carrier could justify his obligation for the loss or the damage of the goods. Whereas Colinvaux ( 1971,p92) remember that: “Unseaworthiness must cause loss but the carrier will only be responsible if unfitness of the ship “becomes a real cause of loss or damage to the cargo”.
This fact has been supported by the judgement of the case Tanner v Benneh. For this case the court of appeal that “not with standing an exception of negligence, the ship owner was responsible for the whole of the damage. The carrier could also try to use defences of the carrier due to the negligence of the ship management, who “left a cargo open after an occasional routine inspection”. The management of the ship relates to those things done for the safety of the ship. It was not the case which is why the crew still made a mistake.
Also the case law Smith, Hogg v Black sea and Baltic general insurance, the court of appeal ( Lord Wright) affirmed the decision that : “the owners were liable whether the master was negligent or not, the ship was Unseaworthy and the Unseaworthiness was a cause of the damage.
Conclusion
Obviously, the carrier has breached his duties in the first and the second contract.
The defence of the carrier does not bring enough objections to acquit Simpsons Ltd. He is therefore liable for the loss of the five containers of engine parts and the damage of 1,000 gallons paint.
1282 words
Bibliography
Colinvaux, R. (1971). Carver’s carriage by sea. London: Stevens & sons.
Hardy Ivamy, E. R. (1977). Casebook on carriage by sea. London: Lloyd’s of London press Ltd.
JCT Chuah.(2001). Law of International Trade, 2nd Edition. Thomson, Sweet and Maxwell.
Strevens, C. (2005). International trade Law. Handout
