The Carriage of Goods by Sea Act: A case study

October 29, 2017 Philosophy

Introduction

The jurisprudence associating to the passenger car of goods by sea is significantly hard to get the hang. In general footings, it frequently involves overlapping legal powers, which can do it hard to determine the regulating jurisprudence of the contract, unless the jurisprudence has been expressly agreed by the parties to the contract. In this instance, it is clear that the Hague-Visby Rules use, given their express appellation in the measures of ladling associating to the crates. Other contracts may non be as clear, and would necessitate consideration of relevant domestic statute law in order to find what jurisprudence ( and what legal power ) governs the footings of the understanding. This affair besides presents a figure of other issues, as while Cherie was a party to the contract from its formation, Tony became a party at a ulterior phase by buying goods on board from Cherie, while they were in theodolite. All these affairs will be considered in item by this brief.

This brief will foremost see Cherie’s claim, given that this claim arose from the contract, and Cherie was a party to the contract from its initial formation. The most outstanding issue in this contract is the clause which specifies that the ship is non permitted to divert from the class of the ocean trip, except as to salvage life. This brief will seek to find whether or non this clause is enforceable in the range of the contract. Additionally, this brief will besides see the commissariats of the regulating Hague-Visby Rules on this really same issue, which may function to hold Cherie’s claim against O substantiated should the express term in the contract fail in its enforceability for whatever ground.

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This brief will besides see Tony’s claim in relation to the goods he purchased ‘afloat’ . That is, Tony purchased the goods from Cherie while they were already in theodolite, without negociating with another party in relation to shipment and similar. The footings of the contract between Tony and O are similar to that of Cherie and O, in the sense that they relate to the same goods geting at the same finish. Therefore, this brief will see relevant rules in relation to Tony’s ability to trust on the indorsed measure of ladling as a subsequent party to the contract ( and non a party at the formation of the original contract ) . In add-on, this brief will besides see the relevant textual commissariats of the regulating Hague-Visby Rules associating to a shipper’s duty to non divert from the class of the ocean trip, except to salvage lives. These commissariats will reply the inquiry in relation to liability in this claim.

Finally, this brief will see the legal power that these claims need to be brought. This is of import, as it is really good to hold the substantial footing for a claim but if a tribunal is non competent to hear the affair on a jurisdictional footing, so no resort can be achieved. Therefore, it is of import to find the appropriate forum in order to salvage the claimants’ clip and resources in respects to retrieving any losingss they are entitled to have as a consequence of O’s carelessness or purpose ( if any ) . Therefore, this brief will now cover these claims in order, get downing with Cherie’s claim.

Rhenium: Cherie’s Claim

I am asked to rede Cherie in regard of the loss and/or harm incurred as a consequence of the alleged carelessness of O in relation to the crates of gin, shipped from New York to London. In order to find possible liability, it is foremost of import to analyze the footings of both the measure of ladling and the contract of passenger car.

In relation to the contract of passenger car, it has been established in the facts that the contract contains a clause stipulating that O is non permitted to divert from the class, unless it is specifically required to salvage life. However, it has besides been established that the measure of ladling does non incorporate such a clause, therefore it is of import to recognize which of these two paperss carries legal high quality in order to find liability. The common jurisprudence of the United Kingdom has recognised over a great period of clip that the measure of ladling does non needfully represent the contract of passenger car itself, but instead simply provides grounds that such a contract exists. [ 1 ] This is displayed in the instance ofSS Ardennes ( Cargo Owners ) V SS Ardennes ( Owners )[ 1951 ] 1 QB 55, where Lord Goddard CJ held that:

It is, I think, good settled that the measure of ladling is non in itself the contract between the shipowner and the shipper of the goods, though it has been said it is first-class grounds of its terms… [ 2 ]

If one was to see this case in point in the context of the current fact scenario, it is clear that the contract of passenger car reigns supreme over the measure of ladling. If this was the instance, so the clause saying that O was non to divert becomes enforceable at jurisprudence, whereas the absence of any such proviso in the measure of ladling would do such an statement inadmissible in tribunal. The chief issue with this statement, nevertheless, is the burden of cogent evidence it provides on Cherie to turn out that the footings of the measure of ladling are inconsistent with the contract of passenger car. While this ab initio seems to be an easy undertaking, Cherie must supply cogent evidence that the contract of passenger car came into being prior to the measure of ladling in order for the contract of passenger car to be afforded legal high quality. The tribunals will by and large see the footings of the contract on the contrary of the measure of ladling as first-class grounds of the footings of the contract, [ 3 ] unless the claimant can fulfill the load of cogent evidence in order to propose that the contract of passenger car is both inconsistent and came into being prior to the measure of ladling. [ 4 ] If this grounds can be provided by Cherie, so there is every opportunity that the contract of passenger car in enforceable in a tribunal. Otherwise, it would look a tribunal would be more likely to implement the footings present on the contrary of the measure of cargo.

If Cherie is able to confirm the claim, it would look probably that C is able to claim amendss for the loss of net income as a consequence of the hold caused by O. This hold caused Cherie to non have the stock in clip to sell during the peak gin-drinking season in London, due to the post-exam jubilations. It is besides of import to observe, nevertheless, that the contract of passenger car will besides be governed by the Hague-Visby Rules, given that the contract of passenger car provides for a measure of cargo, and that measure of ladling expressly incorporates the Hague-Visby Rules. [ 5 ] Additionally, the substantial commissariats of the Hague-Visby Rules do non supply a defense mechanism for O to Cherie’s claims, through excluded lading or ocean trips or similar commissariats. As such, there is every likeliness that Cherie’s claim against O will win, due to O’s breach of contract.

In drumhead, the state of affairs presented in respects to Cherie’s claim indicates that such a claim against O will win if it is presented to a tribunal within the limited sum of clip prescribed by the Hague-Visby Rules. [ 6 ] There is rather a important load of cogent evidence imposed on Cherie in order for the claim to win, nevertheless given that the facts clearly seem to be working in Cherie’s favor, satisfaction of this load of cogent evidence should non be an issue. Provided this load of cogent evidence can be satisfied, so there is every opportunity that the tribunal will see the contract of passenger car ( if it was enacted prior to the measure of ladling ) as enforceable, and therefore will most likely clasp O accountable for the loss incurred by Cherie as a consequence of the hold, which was in breach of the contract of passenger car ( but non the measure of ladling ) . The Hague-Visby Rules besides provide for a prohibition on divergence unless it is ‘reasonable’ , which this instance does non look to be. This will be discussed in more item below in Tony’s Claim ; [ 7 ] nevertheless the facts seem to bespeak that O is apt regardless of whether or non the original contract is enforceable.

Rhenium: Tony’s Claim

I am besides asked to rede Tony in relation to the loss of goods incurred as a consequence of the alleged carelessness of O, due to their attending at the reggae music festival in Haiti. Given that it was O who deviated from the initial class of the ocean trip, and it was besides O responsible for the general care and security of the ship, it is merely sensible that Tony seek to retrieve his loss from O, even though Cherie was the party who sold the goods to Tony. The common jurisprudence of the UK has dealt with the construct of a 3rd party holding rights to the original contract of passenger car upon the measure of ladling being endorsed to them. [ 8 ] This raises the inquiry so as to whether Tony can trust upon the original contract of passenger car between Cherie and O which provided that O was non permitted to divert from the class of the ocean trip, unless it is necessary to salvage life. Statutory jurisprudence would propose that this contract could be relied upon by Tony, which states that Tony has all the rights of suit against the measure of ladling “as if he had been a party to that contract” . [ 9 ] However, this seems to be inconsistent with the common jurisprudence, which states:

…it may be true that the contract of passenger car is made before [ the measure of ladling ] is given because it would by and large be made before the goods are sent down to the ship ; but when the goods are put on board the captain has authorization to cut down that contract into authorship ; and so the general philosophy of jurisprudence is applicable by which, where the contract has been reduced into authorship, which is intended to represent the contract, parol grounds to change or measure up the consequence of such authorship is non admissible, and the authorship is the lone grounds of the contract. [ 10 ]

This presents jobs in relation to Tony’s claim, as it highlights incompatibility in the jurisprudence. Basically, the common jurisprudence suggests that any contract negotiated between the original parties is inadmissible under the parol grounds regulation, which would intend that Tony would be unable to trust on the ‘not to deviate’ proviso of the original contract of passenger car, therefore would non be able to keep O accountable for the loss incurred as a consequence of the hold. Yet statutory jurisprudence suggests that Tony is entitled to exert all legal rights to the contract as though he was a party to the original contract, which would intend that he in fact could keep O accountable for the loss. The declaration of this job requires the application of common sense. The common jurisprudence presented is significantly outdated, whereas the statutory jurisprudence came into consequence in 1992. Therefore, it must be concluded that the statutory jurisprudence has more adhering consequence than the common jurisprudence. Therefore, as a consequence, it can merely be concluded that Tony has the right to trust upon the original contract of passenger car between Cherie and O, therefore is able to exert the ‘not to deviate’ clause at jurisprudence.

In drumhead, the substantial issues of Tony’s claim are basically similar to that of Cherie. Due to O’s carelessness ; about 50 crates of gin were stolen. Under the Hague-Visby Rules ( whether or non the ‘not to deviate’ clause was enforceable’ ) , the bearer has an duty to carefully “load, manage, stow, maintain, attention for and dispatch the goods delivered” . [ 11 ] Therefore, it is clear that O is apt for the stolen crates, and must pay amendss consequently. With respect to divergence, whether or non the original contract is enforceable, the Hague-Visby Rules expressly prohibit divergence unless it is ‘reasonable’ . [ 12 ] Thus, it would look that O is apt for Tony’s loss in any event.

Legal power of Claims

Given that the port of cargo is New York, it would be sensible to reason that a US tribunal has legal power to hear these claims by both Tony and Cherie. This is evidenced by the fact that thePassenger car of Goods by Sea Act 1971( UK ) does non supply for the application of UK jurisprudence, given that the port of cargo is non a UK port. [ 13 ] Additionally, the USPassenger car of Goods by Sea Act 1936provides it to use where a contract of passenger car is undertaken between ports of the US and foreign ports. [ 14 ] This may prevent the operation of UK legislative acts mentioned above, but does non needfully prevent the operation of the common jurisprudence where those instances have addressed the Hague-Visby Rules.

Decision

In relation to this affair, it appears that both parties are able to confirm claims against O, and therefore recover any losingss they incurred as a consequence of O’s behavior in presenting the goods. Both parties entered into a contractual agreement with O to hold the goods delivered to London from New York, they simply entered into this understanding in different ways. Cherie incurred important losingss as a consequence of the hold, which was caused by O diverting from the class of the ocean trip to see Haiti, where a reggae music festival was taking topographic point. As a consequence, Cherie missed the extremum season for selling the gin, which was the chief principle behind the contract in the first topographic point. In add-on to Cherie’s loss, Tony besides incurred the same loss as a consequence of the hold, while besides holding a figure of crates stolen from the ship in Haiti due to the crew’s carelessness to procure the burden against larceny while go toing the festival.

Harmonizing to the relevant legal rules that were discussed above, it would look that Cherie’s claim against O can be substantiated. This statement is two-pronged. First, Cherie is entitled to trust on the express contractual proviso that O was non permitted to divert from the class of the ocean trip, except to salvage life. In add-on to this, the regulating Hague-Visby Rules besides provide that O was non permitted to make so. Therefore, non merely does the not-to-deviate clause signifier an express term of the contract, it is besides implied through application of regulating jurisprudence. As a consequence, O is apt to Cherie for the loss of goods incurred as a consequence of the hold. Additionally, O may besides be apt for amendss for loss of net income as a consequence of their behavior.

Besides based on the facts, it is clear that the substantial issues of Tony’s contract are basically similar to Cherie’s. The instance jurisprudence discussed supra does non look to let Tony to trust on the footings of the contract in the same manner that Cherie was able to, therefore mention must be given to other relevant legal rules, such as regulating jurisprudence. In add-on to this, given that it has been established that the legal power of the instance is the United States, there would be no range to seek the application of the UK’sPassenger car of Goods by Sea Act 1992, which would so allow Tony the same rights as Cherie to the contract. Given this fact, it is clear that Tony must trust upon any relevant commissariats of the regulating Hague-Visby Rules in order to confirm a claim against O. This was already discussed in Cherie’s claim, and it was established that the Hague-Visby Rules supply for the same not-to-deviate clause that is specified in the contract, and therefore Tony can trust on this in order to mount his claim. Therefore, harmonizing to the jurisprudence, O would be laible to Tony non merely for the net income lost as a consequence of losing the peak gin-drinking season, but besides for the crates that were stolen from the ship as a consequence of the crew’s carelessness while partying in Haiti.

Research Report

In fixing this study, I consulted a figure of beginnings. I ab initio consulted the most up to day of the month difficult transcript beginnings I had entree to in my library, which I found was a 2007 edition of Girvan’sPassenger car of Goods by Sea. This had the most up to day of the month jurisprudence, but was basically written from a UK position, which made it hard to to the full estimate the international impact of this fact scenario. As such, I so consulted an Australian book, written by Moens and Gillies, which I know by repute provides a really wide expression at issues associating to international trade. I so backed up this diverse research with another book, written by Debattista, which may function to make full in any spreads that the other two books may hold had. Girvan’s book proved to be the most efficient, covering the chief issues of divergence, every bit good as supplying a deep penetration into the operation of the Hague-Visby Rules, and the relevant domestic statute law associating to legal power. It was Girvan’s book that helped me to reason that the United States was the most appropriate forum to entertain both claims, due to the operation of its domestic jurisprudence. It discusses United States jurisprudence in a limited capacity by comparing to English jurisprudence, nevertheless the American beginnings it discusses were rather valuable, and allowed me to pull sound legal decisions based on the grounds presented in the book, in concurrence with research from other beginnings.

I besides consulted LexisNexis to supply a figure of instances in relation to carelessness and divergence ; nevertheless I was non able to happen any important instances that proved to lucubrate upon the thoughts presented in the books I found. This general hunt was performed by come ining “hague visby rules” into the hunt duologue box. A figure of instances appeared in the hunt, but no straight relevant instances were found by this attack. I did utilize LexisNexis to happen the full text of the instances mentioned in the books, which allowed me to pull my ain decisions from the information presented in the books, free from any influence from the authors’ thoughts. This was done by come ining the relevant party names into an international jurisprudence hunt or domestic jurisprudence hunt, as was relevant at the clip. I found this to be the most efficient manner of carry oning my research, as the books helped to steer me in the right way, while I still had to utilize my ain legal research and concluding accomplishments to use the jurisprudence to the facts state of affairs. Online beginnings are hard to confer with where 1 has small anchoring in the jurisdictional or substantial issues of the instance, therefore I was determined to non utilize them until I grounded myself in these constructs. I felt there was small point in overcasting myself with a clutter of legal slang which appeared to function no value until I had an thought as to how to near it, which is why the difficult transcript beginnings I consulted where valuable ( some more so than others ) .

By and large, I found it significantly hard to turn up a figure of stuffs ab initio, given that I was unfamiliar with what statute law and instance jurisprudence to confer with. This was preponderantly due to me non cognizing what legal power I needed to mention to in item ( i.e. should I confer with UK sea passenger car jurisprudence, or should I concentrate on that of the United States? ) . This became a inquiry that could merely be answered as I was replying the brief itself. Therefore, I had to do a determination to acquire some general counsel from the UK beginnings, which besides contained information on the international regulations, such as the Hague-Visby Rules, but this information was significantly limited to how it related to the UK context, which was non needfully allow to such a inquiry which seemed to hold overlapping legal powers. As antecedently mentioned, the best beginning for this initial counsel was the book by Girvan, as it covered all bases in respects to a basic debut to the outstanding points of jurisprudence. It was hard for me to confer with any on-line beginnings without first anchoring myself in the relevant international jurisprudence foremost, as I was ill-defined what legal power I should specifically be concentrating on. The English instances in Girvan besides gave a good indicant to how the domestic tribunals tend to construe international commissariats when they are the topic of their legal power, which allowed general decisions as the pertinence of assorted international commissariats. It does discourse the Hague-Visby Rules, but in a limited context. Thus, after confer withing Girvan it was best for me to familiarize myself with the full text of the relevant subdivisions of the Hague-Visby Rules, given their significance to the current affair. This was in concurrence with assorted instances that I discovered in LexisNexis, and I will discourse my procedures in more item below.

As antecedently mentioned, I besides had to confer with the full text of the Hague-Visby Rules, as the books were slightly loath to supply the full text. This was good, as non merely did I once more have to use my legal research accomplishments, but I besides had to pull my ain decisions based upon the ‘raw’ jurisprudence. However, I was able to utilize LexisNexis to see what instances applied specific commissariats of the jurisprudence, in order to seek amplification on points I was non wholly clear about. While I did non needfully mention to these in the text of the essay, I was able to estimate the context that the text really meant, which ensured that I applied an attack that was consistent with the judicially-acceptable attack. Therefore, overall I was able to supply a all-around piece which applied merely the key relevant points, guaranting it adequately addressed the inquiry, while besides using the right jurisprudence in force at this current point in clip. I would urge this attack to others, as it gives one a good foundation in this country of jurisprudence, while besides guaranting that one’s ain legal accomplishments develop in the procedure, without holding to trust entirely on the thoughts of others.Bibliography

Books

  • Debattista, C,The Sale of Goods Carried by Sea( 1998, 2neodymiumerectile dysfunction ) , London: Butterworths
  • Girvan, S,Passenger car of Goods by Sea( 2007 ) , London: Oxford University Press
  • Moens, G, and Gillies, P,International Trade and Business: Law, Policy and Ethical motives( 2006, 2neodymiumerectile dysfunction ) , Sydney: Cavendish

Legislation

  • Passenger car of Goods by Sea Act 1936( US )
  • Passenger car of Goods by Sea Act 1971( UK )
  • Passenger car of Goods by Sea Act 1992( UK )

Cases

  • Crooks V Allen( 1879 ) 5 QBD 38 ( CA )
  • Leduc v Ward( 1888 ) 20 QBD 475 ( CA )
  • Moss Steamship Co V Whinney[ 1912 ] AC 254
  • National Jaya ( Pte ) Ltd V Hong Tat Marine Shipping Pte Ltd[ 1979 ] 2 MLJ 6
  • Playing Card games ( M ) Sdn Bhd v China Mutual Navigation Co Ltd[ 1980 ] 2 MLJ 182
  • SS Ardennes ( Cargo Owners ) V SS Ardennes ( Owners )[ 1951 ] 1 QB 55
  • Stag Line V Foscolo, Mango & A ; Co Ltd[ 1932 ] AC 328

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