CARRIAGE OF GOODS BY SEA ACT 1971
This section embodies the Hague-Visby rules into U.K. legislation by stating that the rules set out in the International Convention of Brussels shall have the force of law.
The rules have effect (force of law) in the following cases:
i) when the carriage of goods is done by sea, in ships whose port of shipment is a port in the U.K., whether or not the carriage is between ports in two different States;
ii) where the contract provides for the issue of a b/l or any similar document.
iii) to any b/l if the contract contained in or evidenced by, provides that the rules shall apply;
iv) to any receipt which is not a non-negotiable instrument, if the contract of carriage so provides.
The rules do not apply to live animals or deck cargo which has been agreed to be carried on deck.
The above section is the first part dealing with the cases on which the rules apply and have effect. Article X lists the rest of the cases on which the rules have effect.
Section 18 of the Merchant Shipping Act 1979 which entirely exempts shipowners and others in certain circumstances from liability for loss of, or damage to goods, is a provision relating to limitation of liability.
The absolute undertaking by the carrier of the goods to provide a seaworthy ship is not implied in any contract of carriage by sea to which the rules apply. The next section is used to exempt shipowners from this implied undertaking requested by Common law. So:
The carrier is bound before and at the beginning of the voyage to exercise the due diligence to:
i) make the ship seaworthy;
ii) properly man, equip and supply the ship;
iii) make the holds, refrigerating and cool chambers, and all other parts of the ship in which goods are carried, fit and safe for their reception, carriage and preservation.
The carrier must properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried.
The next section relates to the issuing of b/l, the information inserted on them and its accuracy, and their function as a receipt.
On demand of the shipper, the carrier must issue a b/l to the shipper showing:
i) the leading marks necessary for the identification of the goods;
ii) the number of packages or pieces, or weight;
iii) the apparent order and condition of the goods.
Such a b/l is prima facie evidence of the receipt by the carrier of the goods as therein described.
If the master reasonably suspects that the information provided by the shipper is inaccurate or if he has no reasonable means of checking it, he is not bound to enter that information in the b/l.
The shipper must guarantee to the carrier the accuracy at the time of shipment of the details he has provided and he shall indemnify the carrier against all loss, damages and expenses resulting from such inaccuracies.
The next two paragraphs set the time limits for giving notice of loss or suing the carrier for damages or loss.
Notice of loss or damage and the general nature of such loss or damage must be given in writing to the carrier at the port of discharge before or at the time of removal of the goods from the ship, or within three days if the loss or damage is not apparent.
The carrier and the ship are discharged from all liability whatsoever in respect of the goods, unless suit is brought within one year of their delivery or of the date when they should have been delivered.
A shipped b/l as a document of title.
On demand of the shipper and after the goods are loaded, the carrier must issue a 'shipped' b/l to the shipper provided that he surrenders any document of title previously issued against the 'shipped' b/l.
Any clause or agreement in the contract of carriage relieving the carrier or the ship from liability for loss or damage to the goods arising from negligence, fault or failure in the duties and obligations, or lessening liabilities as provided in the rules shall be null, void and of no effect.
The above paragraph states that the liabilities delegated to a carrier by the rules are the minimum that can prevail if the rules are to apply.
Neither the carrier nor the ship shall be liable for loss or damage arising or resulting from unseaworthiness if the carrier has acted as provided in art. III.
Neither the carrier nor the ship shall be responsible for loss or damage to the goods arising from (only the most important exemptions are listed below):
i) Act, neglect, or default of the master, mariner, pilot, or the servants of the carrier in the navigation or in the management of the ship;
ii) Fire, unless caused by fault or privity of the carrier;
iii) Perils, dangers and accidents of the sea;
iv) Act of God or War;
v) Act of public enemies;
vi) Act or omission of the shipper or owner of the goods, his agent or his representative;
vii) Strikes or lockouts or stoppage or restraint of labor;
viii) Saving or attempting to save life or property at sea;
ix) Insufficiency of packing or marking.
The above section is of utmost importance since it relieves the carrier and the ship from responsibility for loss or damage to the goods under certain, commonly encountered, maritime risks and incidents.
The shipper is not responsible for loss or damage sustained by the carrier or the ship arising or resulting from any cause without his act, fault or neglect.
Any deviation in saving or attempting to save life or property at sea or any reasonable deviation does not account for breach of the contract of carriage or of the rules.
The above paragraph removes the burden from the shipowner to proceed with no-deviation whatsoever in the contractual voyage.
The rules in this point set the limits of liability for loss or damage to goods in terms of units of account. References are also given as to the calculation of the total amount recoverable.
Neither the carrier nor the ship is entitled to the benefit of the limitation of liability provided in the rules if it is proved that the damage resulted from an act or omission of the carrier done with intent to cause damage, or recklessly and with knowledge that damage would probably result.
Hence, intention and reckleness if proved, do not allow the defendant to benefit from the defenses and limits of liability provided by the rules.
Neither the carrier nor the ship is responsible in any event for loss or damage to the goods if the nature or value thereof has been knowingly mis-stated by the shipper in the b/l.
Hence, misrepresentation relieves the carrier from certain liabilities.
Dangerous goods whereof the carrier has not consented with knowledge of their nature and character, or become a danger to the ship or other cargo while the carrier consented, may at any time before discharge landed at any place, destroyed or rendered innocuous by the carrier without compensation and the shipper shall be liable for all loss, damage and expenses to the goods.
The above paragraph gives certain rights to a carrier, carrying dangerous goods at a time of risk.
Defenses and limits of liability provided in the rules apply to actions against the carrier in contract law or in tort.
A servant or agent of the carrier is entitled to the defenses and limits of liability provided in the rules if an action is brought against them unless proved that the damage resulted from an act or omission done with intent to cause damage, or recklessly and with knowledge that damage would probably result.
Intention and reckleness if proved, do not allow the defendant to benefit from the defenses and limits of liability provided by the rules.
A carrier may surrender in whole or in part all or any of his rights and immunities or to increase any of his responsibilities and obligations under the rules, provided that they are embodied in the b/l issued to the carrier.
The rules do not apply to charter-parties, but if b/l are issued in the case of a ship under a charter-party, they shall comply with the terms of the rules.
Any lawful provision regarding general average may be inserted in a b/l.
As we can see, rights and immunities can only be surrendered, while responsibilities and obligations can only be increased (for the carrier). Hence, in this section, the rules set the basis on which alterations can be made.
A carrier and a shipper are at liberty to enter any agreement in any terms as to responsibilities and liabilities for the goods, obligations as to seaworthiness, rights and immunities in respect of the goods other than those provided in the rules, provided that no b/l is issued and that the terms are embodied in a receipt which shall be a non-negotiable instrument.
The above paragraph gives liberty to the contractual parties to enter any agreement which relates to their rights and liabilities and which are different to those stipulated in the rules as far as no b/l is issued, since the rules apply automatically to any contract of carriage of goods by sea evidenced by a b/l.
A carrier and a shipper are at liberty to enter any agreement, stipulation, condition 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 and care and handling of goods prior to the loading on and subsequent to the discharge from the ship on which the goods are carried by sea.
This paragraph is based on the principle that the rules apply only to the part of the carriage of goods by sea.
The rules do not affect the rights and obligations of the carrier under any statute for the time being in force relating to the limitation of liability of owners of sea-going vessels.
The rules do not affect any international convention or national law governing liability for nuclear damage.
The rules apply to every b/l relating to the carriage of goods by sea between ports in two different states if:
i) the b/l is issued in a contracting state;
ii) the carriage is from a port in a contracting state;
iii) the contract contained or evidenced by the b/l provides that the rules or any national law giving effect to them are to govern the contract.
(In addition to paragraph 1 of section 1.)