Question:
Discuss about the Transport Law for Paterson Zochonic and Co. Ltd.
According to the case study the issue has been arise whether Mary can make claim against “Flossy Enterprises” for the damages she has been faced due to the damage of her cargo of sugar?
According to The Hague–Visby Rules has introduced international rules for the international carriage of goods by sea in Australia. It has set the international rules where it has been set the greater bargaining power for the protection of the shipper or the owner of the cargo. Through the Hague–Visby Rules it has introduced several rules which also applicable for the carrier. The Hague–Visby Rules is basically incorporated with the Carriage of Goods by Sea Act 1971 where it has been stated the legislation for the international carriage of goods[1].
Under the Hague–Visby Rules the carrier has several duties while it delivering the goods. They are bound to take proper care at the time of unloading the goods to the buyer. They are also took proper care, handle, stow, carry, keep, care for, and discharge the goods carried in the international carriage of goods. Under this act the Article IV (4) has legislates the provisions for saving any life or any property which Carry by sea and causes any damages if the rules has been breached[2].
In the case of Dempster and Co v Paterson Zochonic and Co. Ltd the court has found that the when the owner of the ship has agrees with the terms for transport goods by sea therefore that ship should be seaworthy in every ways. The application of the warranties also found to apply in another case in AEReed and Co Ltd v Page. In this case the judges has also mentioned about the fitness of the ship while entering planned voyage along with the received carrying container through cargo. In the case of McFadden V Blue Star Line the court has identified where the breach of the warranty of cargo worthiness has been held because it was over loaded. At the time of voyage or after the voyage if the vessel faced any doctrine of stages then they should make the ship sea worthy. Under The Hague–Visby Rules imposes and holds the carrier accountable before and at the beginning of the voyage to exercise due diligence to make the ship seaworthy. In the Maxine Footwear Co Ltd v Canadian Government Merchant Marine Ltd is another case where the court has clarify the rules of the duty of care with due diligence At the time of voyage. The rules of shipping do provide that carriers are under several duties to the shipper. El Greco (Australia) Pty Ltd. v. Mediterranean Shipping Company S.A., 2004 is another case of Australia where the Article IV rule 5(c) of the Hague-Visby Rules has been applied for the bill of landing for not to be the contractually binding where it has affected the carrier. It sets the liability of the rules while the goods have been delivered through the sea and it has been carried by the ship[3].
Sideridraulic Systems SpA and Anr v. BBC Chartering & Logistic GmbH & Co KG, The BBC GREENLAND [2011] is a recent case of where court has provided a historical judgment which has considered the application of Hague-Visby Rules for carrying a carriage contract under the circumstances for carrying the cargo on deck. The ‘River Gurara’ [1998] 1 Lloyd’s Rep 225 (CA) is the case where the liability of the carrier has found under the Hague-Visby Rules where the packages has been loaded with the container[4].
Riverstone Meat Co Pty Ltd v Lancashire Shipping Co Ltd (The Muncaster Castle) [1961] is an example of a case where the damages has been found due to the negligence acts while deliver the goods. However, later the responsibility of negligence has not found of the defendant after delivery of the goods.
Under the Article IV of Hague-Visby Rules the subsection 3 has described that the shipper will never have the liability or he may not have a responsibility for the any damages or loss of the carrier or the ship which carried the goods and cause such damages without any acts or actions for the fault. Whereas, the subsection 4 has defined that the any deviation will not make any liability while it is attempting to save the property and it also describe that it will not reach the terms of the Hague-Visby Rules.
the subsection 6 has stated under the rules that if the goods are inflammable or explosive or dangerous to the nature then at the time o the shipment it will not make any responsibility towards the carrier while carrying the goods or any damages r losses which has been caused due to the against of the nature. In this part if nay loss of property has been caused due to the goods or explosive character and destroy the properties which has been carries by the ships then without the compensation and the shipper will become liable while delivering the goods if the face nay damages or loss at the all the expenses will be directly get the liability at the time of shipment[5].
The Article IVbis describes the defense and limits of Liability where it will applicable for the defenses and limits of liability which has provided by the Hague-Visby Rules where the court can take actions against for any damages or los where any contract has been made for the protection of the goods. If any action has been taken against any loss then carrier will be entitled to defense himself against the limits of liability when the carrier is invoke under the rule of Hague-Visby Rules[6].
Under the Hague–Visby Rules the carrier’s duty should prepare standard of professionalism and care while delivering the goods to the buyer. Under the Article IV of this act legislates the rules only applicable for the situation where it can allow various situations for the liability for any damages can be claim under this act.. These will not applicable if the damage has been caused due to the fire, Act of God, Act of war or Perils of Sea.
Under the Hague–Visby Rules the shippers are also bound to follow the rules where they should pay the amount to the supplier. They must take care about the gods whether those are packed enough proper way or not for the journey through the sea. It also describe the duties where the shippers must provide appropriate descriptions about the condition of the goods. The both parties must not deliver any dangerous cargoes which cause any damages while carrying te goods[7].
The Article III of the Hague–Visby Rules has defied the legislation where it has mentioned that the carrier shall be bound before and at the beginning of the voyage to exercise due diligence for making the ship seaworthy, it should carried the appropriate people h are able to control and manage the ship while it is in the sea. It should consist of the appropriate sea equipment and supply the ship in a good condition. Under this article the shipper is also bound to show the bill of landing which must contains of the marks, number, quantity or weight. The guarantee must be provided by the shipper where he can indemnify about the loss, damages or any issue which has been arises while delivering the goods.
The Article IV of Hague–Visby Rules has been provided the legislation where the carrier or ship never mentioned about the liability of any damages if there are no facts has found of unwillingness of due diligence and other obligations of the shipping. Whenever loss or damage has caused due to any unseaworthiness then the burden of prove only applicable for the exercise of due diligence by the actions of the carrier or other person claiming exemption according to Hague–Visby Rules. It has also stated that the carrier nor the ship will never become responsible if any damages occur due to the any negligence act by the mariner while navigate or managing the ship. It will not define the responsibilities if it has been caused due to the fire or any actual fault. For the obligation for the shipper they will become liable if it has been found that due to their negligence any damage or loss has been occur[8].
According to the fact of the Case when Mary’s cargo of sugar has reached at the end of the voyage it has been damage by the seawater. Cavity the board which carries sugar through the ship is basically charted by the Flossy Enterprises. Now they are incorporating with the Hague-Visby Rules where they have formed a contract. The vessel is quite old and the welding of some of the hull plates had failed thereby allowing seawater to enter into the cargo holds. However during the voyage the ship also endured a severe storm and it is unknown whether the plates were still holding when the vessel had sailed. Now Mary wants to take legal actions against Flossy Enterprises[9].
According to the fact of the case the contract has been formed according to the Hague-Visby Rules therefore the application of the law has been applied for this contract. Under the Hague–Visby Rules the carrier has several duties while it delivering the goods. They are bound to take proper care at the time of unloading the goods to the buyer. They are also took proper care, handle, stow, carry, keep, care for, and discharge the goods carried in the international carriage of goods. Under this act the Article IV (4) has legislates the provisions for saving any life or any property which Carry by sea and causes any damages if the rules has been breached. Under the Article IV of Hague-Visby Rules the subsection 3 has described that the shipper will never have the liability or he may not have a responsibility for the any damages or loss of the carrier or the ship which carried the goods and cause such damages without any acts or actions for the fault. Whereas, the subsection 4 has defined that the any deviation will not make any liability while it is attempting to save the property and it also describe that it will not reach the terms of the Hague-Visby Rules[10].
Conclusion
According to the case study it has defined that as per the Hague-Visby Rules she can claim compensation from the organization fir the loss she has been suffered. As Flossy Enterprise has been incorporated the contract with Mary therefore they are bound to pay the compensation. The ship was already in a bad condition and due to the sea water it has affected the ship. Therefore as per the contract under the Hague-Visby Rules the organization should pay the damage or loss amount to her[11].
Reference
AEReed and Co Ltd v Page
Dempster and Co v Paterson Zochonic and Co. Ltd
Djadjev, Ilian. The Obligations of the Carrier Regarding the Cargo: The Hague-Visby Rules. Springer, 2017.
El Greco (Australia) Pty Ltd. v. Mediterranean Shipping Company S.A., Federal Court of Australia, Queensland District Registry, 10 August 2004 (2004 AMC 2886)
Gaskell, Nicholas. “Developments in Australian Maritime Law 2013-2014.” J. Mar. L. & Com. 46 (2015): 311.
Katsivela, Marel. “The treatment of the sea peril exception of the Hague-Visby Rules in common law and civil law jurisdictions.” WMU Journal of Maritime Affairs 16.1 (2017): 19-36.
Maxine Footwear Co Ltd v Canadian Government Merchant Marine Ltd
McFadden V Blue Star Line
Nair, Ashwin. “A note on Norden: Voyage Charterparties, the Hague/Visby Rules and Enforcing Foreign Arbitration Awards.” Austl. & NZ Mar. LJ 27 (2013): 90.
‘River Gurara’ [1998] 1 Lloyd’s Rep 225 (CA)
Riverstone Meat Co Pty Ltd v Lancashire Shipping Co Ltd (The Muncaster Castle) [1961] A.C. 807
Sideridraulic Systems SpA and Anr v. BBC Chartering & Logistic GmbH & Co KG, The BBC GREENLAND [2011] EWHC 3106 (Comm).
Taylor, Joshua. “International Maritime Arbitration and the Rotterdam Rules: A New Perspective on Party Autonomy.” Austl. & NZ Mar. LJ 28 (2014): 25.
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