Legal Basis for Cargo Claims under the Hague and Hamburg Rules
A carrier in a carriage by sea transaction agrees to carry and deliver the cargo of the shipper on terms of the carriage contract (usually a charter party or evidenced by a bill of lading).
Cargo claims arise in situations of breaches by the carrier of contractual obligations to properly carry, care and deliver the cargo in his custody. The claims are generally governed by the terms of each carriage contract. However, where they arise out of a bill of lading transaction, some liability regimes which stipulate rules guiding their prosecution may become applicable.
These liability regimes (The Hague Rules 1924 and Hamburg Rules 1978) are the subjects of two extant Nigerian legislations on the subject viz, The Carriage of Goods Act CAP C2 Laws of the Federation of Nigeria 2004 and The United Nations Convention on Carriage of Goods by Sea Ratification and Enactment Act 2005
Under the Hague Rules, Article III thereof provide for certain obligations of the Carrier. Consequently, losses, delays, and/or damage to cargo resulting from breach of these obligations may give rise to cargo claims. The said obligations are listed below.
- Provision of a sea worthy ship
The carrier is obligated before or at the beginning of the voyage to provide a seaworthy, properly maned, equipped and supplied ship. Seaworthiness refers to the fitness of the vessel to encounter the ordinary perils of the sea that could be expected on her voyage, and deliver the cargo safely to its destination. The Hague Rules do not permit the Carrier to contractually lessing or eliminate his obligation in this respect and the burden of proving due diligence in provision of a seaworthy ship is on the carrier.
- Provision of a cargo worthy Ship
Article III (2) of the Hague Rules also require a carrier to make the cargo holds, refrigerated spaces and any other parts of the ship where cargo is intended to be carried fit and safe for its carriage and preservation. Subject therefor to the exceptions provided for in the rules, the carrier will be liable for losses and and damage to cargo resulting from breach of this obligation.
- Obligation to Properly Load Handle and Discharge Cargo
It is the duty of carrier to look after the cargo. This duty therefore includes a responsibility to study the cargo upon receipt and determine whether indeed the carrier is equipped to load, carry and discharge it. It must be pointed out that unlike the duty to exercise due diligence in providing a sea worthy ship, there is in respect of this duty, no restriction to a time before or at the beginning of the voyage. The duty thus runs from the time when the cargo is received by the carrier till when it is properly discharged (Tackle to tackle)
- Issuance of Bill of Lading
and of shipper, to issue a bill of lading describing the condition of cargo, the number of pieces or packages or the quantity or weight, as stated by the shipper, and the leading marks on the packages to assist in identifying the goods.
The Hamburg Rules on their part in Article 5 (1) provides generally that a carrier is liable for loss resulting from loss of or damage to the goods, as well as from delay in delivery, if the occurrence which caused the loss, damage or delay took place while the goods were in his charge.
Article 5 (4) deals more particularly with loss occasioned by a fire; providing thus that carrier is liable for loss of or damage to the goods or delay in delivery caused by fire, if the claimant proves that the fire arose from “fault or neglect on the part of the carrier, his servants or agents. The carrier will also be liable for loss, damage or delay in delivery which is shown to have resulted from the fault or neglect of the carrier, his servants or agents, in taking all measures that could reasonably be required to put out the fire and avoid or mitigate its consequences.
Generally, however a cargo claim will usually arise from the in situations of
- Total loss of cargo
- Shortage / short landing of cargo
- Physical damage (including damage caused by poor handling and poor stowage)