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Week 7: Carrier Liability - Coggle Diagram
Week 7: Carrier Liability
Defence in the case of unseaworthiness (art 4r1 "due diligence")
"Neither the carrier nor the ship should be liable for loss or damage arising from unseawortiness unless caused by want of due diligence... Wehenver loss or damage has resulted from unseaworthiness the burden of proving the excercise of due diligence shall be on the carrier or other person claiming exemption under this article"
While the claimant bears burden of proving the loss or damage was caused by unseaworthiness at the beginning of the voyage, this burden can be often discharged by interference (eg. where a ship sinks in calm seas or where equipment fails early in the voyage)
Once unseaworthiness is raised, it is up to the carrier to show that it used due diligence
Alternatively, the carrier might seek to prove that the cause of the damage was something other than unseaworthiness
Carrier defences in case of damage without fault (art 4 r2)
The carrier's obligation to properly load, care for and carry the goods under art 3 r2 to the carriers' defence of due diligence in art 4 r1 and the immunities listed in art 4 r2
This means the carrier can avoid liability by establishing that loss or damage to cargo resulted froom a listed immunity under art 4 r2
Art 4 r 2 excludes the carrier's liability for loss or damage which results and arises from (check art 4 r2 for full list)
The nautical fault defense
(a) Act, neglect or fault of master, mariner, pilot or servants of the carrier in navigation or management of the ship
Chubu Asahi Cotton Spinnig co v The Ship Tenos (1968)
Crew member filled tank for vegetable oil with fresh water to test them. His negligence caused the water to overflow and damage cargo of wool
The crew member action had nothing to do with the management or navigation of the ship, therefore the carrier couldnt use this defense
Mining & Manufacturing v Ship Novoaltaisk (1972)
Crew memeber filled ships own fresh water tanks and due to negligence damaged cargo in process
As filling the ships own water tanks relates to its own managment, the courriers was able to use this defense.
The perils of the sea defense
(c) perils, dangers and accidents of the sea or other navigable waters
Transferring Rights and Obligations under contract of carriage to consignee (buyer)
The goods act o 1958 (vic) establishes that
There can be a transfer of rights of shipper under contract of carriage to the successive lawful holder of the bill of lading or the person to whom delivery of goods is to be made in accordance with the sea waybill or delivery order (section 92)
Liabilities are also transfered (section 94)
Exploring the limits to the carriers liabilities
Over riding duty of proper care of cargo (art 3 r2) and to use due diligence in insuring sea worthiness (art 3 r1)
Art 3: if cargo is damaged and the damage falls within one of the exemptions, the carrier might still be liable if an underlying cause of the damage is the carriers failure to excercise proper care in carrying out its funfamental duties under art 3 r2
note that carriers are not entitled to rely on the immunities as a defense to lack of due diligence in ensuring seaworthiness (article 3r1), if the lack of seaworthiness caused the damage