BTX3100 Lecture 8: CARRIAGE OF GOODS BY SEA 2
11 Oct 2018
School
Department
Course
Professor
CARRIAGE OF GOODS BY SEA
NOTES, 2.
Principal obligations of carrier:
• Before/at the beginning of journey use due diligence to ensure seaworthiness
o Art 3 r1
• To properly and carefully load, carry, keep etc.
o Art 3 r 2
CARRIER DEFENCES:
• Found in
o Art 4 r1 - due diligence
o Art 4 r2 – immunities
Carrier defence to unseaworthiness: Art 4 r1 – due diligence:
• Art 3 r 1 is breached if the carrier failed to use due diligence to ensure seaworthiness
before and at the beginning of a voyage (+ sea was unseaworthy)
• Art 4 r2 defence
o Carrier is not ‘liable for loss or damage arising from unseaworthiness unless
caused by want of due diligence’… ‘whenever loss or damage has resulted
from unseaworthiness the burden of proving the exercise of due diligence
shall be on the carrier or other person claiming exemption under this article.
o Carrier must show they have done everything possible to ensure
seaworthiness
o The carrier’s obligation to properly load, care for and carry etc. the goods
under art 3 r2 is subject to the carriers’ defence of due diligence in art 4 r1
and the immunities listed in art 4 r2
o Usual sequence of argument in a claim:
▪ Where a cargo owner can prove that the goods were shipped in good
order (e.g. clean BoL) and that goods are missing/damaged then the
court will find a prima facie breach of art 3 r2
o Art 4 r2 excludes the carrier’s liability for loss or damage which results or
arises from:
• The claimant bears the burden of proving unseaworthiness at the beginning of the
voyage, but often prima facie seaworthiness by inference
o E.g. a ship sinks on calm seas or where equipment fails early in the voyage
• Once seaworthiness is raised, it is up to the carrier to show that it used due diligence
to ensure seaworthiness
CARRIER’S IMMUNITIES – defence against unseaworthiness and not preparing the ship:
• The ‘nautical fault defence’
o Art 4 r2(a) - act, neglect, or default of master, mariner, pilot, or servants of
the carrier in the navigation or in the management of the ship
o Refers to management of ship as a ‘navigational unit’ not as a cargo carrier
o Activities not relating primarily to navigation of the ship are not
encompassed in the immunity
o However, a carrier will not be liable for acts or omissions that are in
‘navigation and management’ of the ship, no matter how grossly negligent
o Cannot use this defence if it is not about management
o Chubu Asahi cotton Spinning Co v The Ship Tenos – crew member filled tanks
for vegetable oil with fresh water to test them. His negligence caused the
water to overflow and damage cargo of wool. = management
o Mining and Manufacturing v Ship Novoaltaisk – crew member filled ship’s
own fresh water tanks and negligently damaged cargo in the process.
• The ‘perils of the sea’ defence
Document Summary
Principal obligations of carrier: before/at the beginning of journey use due diligence to ensure seaworthiness, art 3 r1, to properly and carefully load, carry, keep etc, art 3 r 2. Carrier defences: found in, art 4 r1 - due diligence, art 4 r2 immunities. His negligence caused the water to overflow and damage cargo of wool. Bad weather was predicted prior to the journey, but the weather encountered was much worse: carrier called upon art 4 r2(c) defence claiming that the damage was due to the (cid:858)perils of the sea(cid:859). It was therefore a foreseen event and could be guarded against. In principle, the bad weather could constitute a peril of the sea even though it was predicted: moreover, the claimant failed because there was no breach of art 3 the goods had been carefully stowed. The over-riding duty of proper care of cargo (art 3 r2):
