CRB ~ Marine Claims
We have a particular expertise in relation to marine claims. Cases arising from international movements of cargo by sea account for approximately half of all the claims we handle at CRB. We are instructed regularly by clients in Europe, North and South America, Asia, Africa and the Middle East in these matters and deal with all problems from all varieties of containerised cargo to bulk and break-bulk cargo.
Carriage of Goods
by Sea Law
Virtually all international transport of goods by sea is now covered by the codifying statutes of the Hague Rules, Hague-Visby Rules and to a far lesser extent Hamburg Rules. In the words of Viscount Simonds the aim of the Hague Rules (and indeed the subsequent Conventions) was to standardise within certain limits the rights of every holder of a Bill of Lading against the shipowner, prescribing an irreducible minimum for the responsibilities and liabilities to be undertaken by the latter.
Prior to the
introduction of the Harter
Act in the USA there was an increasing trend for shipowners to impose
terms which have subsequently been termed so unreasonable and unjust in
their terms to exempt themselves from almost every conceivable risk.
Under the Hague Rules there was a compromise as the carrier could not exclude liability other than for certain exceptions but they could not be liable for an amount more than £100 per package. By Article IX the monetary unit was taken to be gold value under English law. There was no longer a common law absolute obligation to provide a seaworthy ship but due diligence to be exercised before and at the commencement of the voyage.
The Hague-Visby Rules
introduced changes to the limitation in
Article
IV 5(a) by providing a limit based on either the weight or the package
limitation whichever was the higher. The limitation was set down in
gold francs in the Carriage of Goods by Sea Act 1971 which brought the
Hague-Visby Rules into effect but later repeal of section 1(5) in 1984
provided conversion of the gold francs into units of account known as
Special Drawing Rights. Article III.4 which provided that while a Bill
of Lading is prima facie evidence of receipt by the carrier of the
goods as described therein this section was extended to state that
proof to the contrary shall not be admissible when the document has
been transferred to a third party acting in good faith.
Due to the advent of unitisation Article III.5(c) was introduced to
provide a definition of a package and Article III.5(e) was inserted to
void carrier’s entitlement to limitation in the event that
damage
was proved to be due to an act or omission done with intent or
recklessly and with knowledge that damage would probably result. The
Hague-Visby Rules were given force of law in the UK by the Carriage of
Goods by Sea Act 1971.
The Hamburg Rules have not been adopted by the United Kingdom. Indeed
many countries around the world rather than adopting the original text
of the Hague Rules, Hague-Visby Rules or Hamburg Rules by ratification
or accession have instead passed their own legislation incorporating
parts of the conventions into their own Carriage of Goods by Sea Acts.
It is thus important to avoid generalisation and to understand which
terms apply to a specific movement of cargo.
Security
by Letters of Undertaking or Bank Guarantees
The
House of Lords held in the case of
Firma C-Trades SA v Newcastle P&I Association, The Fanti and
The
Padre Island 1991 that rights transferred to a third party by the Third
Parties (Rights against Insurers) Act 1930 are useless if the insurance
contract contains a clause requiring the debtor to pay the claim before
the right to indemnity arises (a 'pay-first' clause). To avoid pyrrhic
victories with no security we strongly recommend our advice is sought
to obtain security before a ship leaves the discharge port.
We can obtain security for our clients at no extra cost to them,
including the negotion of the wording of documents. Where security
cannot be obtained we can also organise the arrest of a ship, although
this is seen as a last resort and given our good relationship with the
P&I Clubs this is rarely required.