Maritime Law Assignment: In-depth Discussion on “Title to Sue”
Question
Task: With respect to cargo claims, write a report on maritime law assignment critically discussing the notion of title to sue in an action to be brought against carriers when the cargo in which they have an interest is not delivered, is delivered short or is delivered damaged. Give examples of decisions from reported cases.
Answer
Introduction
“Title to Sue”, explored in the segments of maritime law assignment, is an essential issue for establishment in cargo claims under the English Law. Under this law, an individual could not establish “title to sue”, if they are not able to recover a damage, which is suffered due to any forms of “breach of contract”. According to “English Law”, the “bill of lading”, is a document, which is issued by the carrier for properly acknowledging receipt related to the cargo regarding the adequate shipment . The “bill of lading”, comprises of a critical form of document, which is utilised in international trade for assuring that different exporters have received proper payment while importers have received shipping of goods and merchandise. This essay is going to conduct an in-depth analysis and discussion regarding notion associated with “title to sue”, in a proper action, that could be brought against carriers during times in which the cargo (in which they comprise an interest) have not been properly or totally delivered, or damaged during delivery as well as delivered short. In this context, this essay enhances legal perspectives and conducts an in-depth analysis of the aforementioned context while focusing on bringing out best possible discussion.
Critical Discussion
Parties who can bring claims against carriers under “Bill of lading” in case of delivery of damaged cargo or delays in delivery
The “Contract of Carriage” can assist with determining if a particular claimant has “title to sue.” In case “Bill of Lading” is only the carriage contract between the concerned parties, lawful holders of that bill have “title to sue” a carrier having interest in cargo according to the contract in case of delivery of damaged cargo or delay in delivery. In England, “Bill of Lading, 1855” was passed for removing all the issues associated with determination of carriers and claimants’ liabilities during and after shipment of cargo of goods. “Bill of lading” provides assistance to determine constructive possessions of its holders . Under the “English Law”, this contract could be resulted from parties’ that could involve acceptance and offer. According to “Section 5(2)” of the “Carriage of Goods by Sea Act, 1992”, the person, who would be held as lawful holder of “bill of lading” if the person is the only consignee of products to which bill of lading” relates. This can also be applicable to individuals that containthe possession of “Bill of lading” resulting from bill endorsement, bill transfer or completion. Apart from this the individual could also be the consignee of products if the person holding possession of “bill of lading” after completion of transactions by virtues of which the person has become holder of that bill.
Sometimes there are negotiable bills under which there can be more than one lawful holders and their contractual rights are extinguished at times the bill is transferred to each of them. Based upon these rights the lawful holders will hold the “title to sue” a carrier under certain clauses.
Situations when claimants have the title to sue the carrier
In “Article 7” of “Hamburg Rules, 1978”, there is no defensive clause for the protection of carriers if damages occur and claimants sue the carrier for damages occurred. However, if the claimant takes an action against an agent of a career for wilful damage of the goods during shipment and if the carrier agent is proved to; be innocent due to his act of performing his duties within scope of employment, he is entitled to claim defences (2). However, this act does not apply in cases where there is evidence of wilful damage to the goods or negligence in taking proper care of cargo during shipment especially when the carriers have interest in cargo.
This act also does not apply to cases, where there is evidence of contradictory statements made by the carriers during shipment of goods. According to the “English Common Law”, delivery of goods in damaged state could be considered as a case of breach of contract where the carrier has the liability to reimburse the damages if there exists “prima-facie” evidence. A prima-facie case occurs when cargo is delivered in damaged condition even when it was in good condition in the loading phase . In these cases, the claimant holds the right to take action against the carrier for prima-facie negligence. For example, in the case of “Silver Vs Ocean Steamship Co Ltd (1930)” this kind of situation occurred and court’s proceedings were in favour of the claimant due to failure or negligence of the cargo carrier to take proper care of the goods during shipment . In the mentioned case, the “bill of lading” covered shipment of cargo of egg-cans. As per the statement provided on the bill, all the goods were packed and shipped in proper condition and order. However, the claimant found the egg-cans to be gashed at the port upon their arrival in London. In this case, the appeal court held the carrier to be liable for the losses occurred as they were supposed to take care of the goods during shipment as per the statement provided on the bill. The carrier could not deny the statement provided on “bill of lading” and hence, the lawful holder of that bill (claimant) held the right to sue that carrier. Moreover, as per the “Common English Law”, carrier could have the right to have defence against that estoppel. In that case, the carrier could have included a statement with words “condition unknown” instead of the statement with words “goods were shipped or packed in good condition”. It would have protected them from facing legal obligations or taking liabilities for the reimbursement for losses incurred. However, in few cases, there are disputes regarding if the carrier is liable for damages or delays. For example,
Potential liabilities of cargo-claimants as per bill of lading
Cargo-claimants can assume liabilities within carriage contract, in case they want to take benefits of their contractual rights that have been assigned under “bill of lading”. For instance, lawful holders of “bill of lading” can assume the following liabilities in case he or she formally demands or takes physician-possessions from carriers of any good to which that bill is related directly. According to “Section 3” of the “COGSA, 1992”, protection of contractual obligations of claimant could be well-established in case of negligence. According to this act, the claimant can further seek protection for damages of goods or delays in delivery of cargo in case he intends to make formal claims against carrier through arbitration or court proceedings. This could be done provided the carrier has interest in cargo and these interests can include losses arising due to shipment of dangerous cargo or physical damage to the goods resulting from negligence.
Determination of claimants’ ability to have “title to sue”
It is important to note that under “Contract of Carriage”, will be responsible for an in-depth analysis of claimants, which contains “title to sue”. According to the “English Law, section 5(2)”, under “Carriage of Goods by Sea Act, 1992 (COGSA)” only the lawful holder of a particular “bill of lading”, is responsible for “contract of carriage”, with carrier and comprises of a proper “title to sue”, the respective carrier . Establishing the “title to sue”, is essential in terms of consideration of recovery claim but could be complex in nature.
According to the UK COGSA, 1992, the holder of “bill of lading”, is further entitled for suing the carrier for recovering damages regarding any form of “breach of contract”, The holder can be the shipper as an actual contractual party or a consignee as the buyer of goods. It is worthy to note that under Section 2(4) of the aforementioned act, the holder related to “bill of lading”, is subjected towards suing for advantage of an individual, who lacks proper rights towards suing; however, the individual is further subjected to kind of financial loss due to the “breach of contract”. Under COGSA, the rights related to both intermediate holders along with shippers, are further extinguished following proper transfer of “bill of lading”.
As per the “English Law”, the carrier do not comprise of suing an individual by virtue of being holder of “bill of lading”, According to S3(1) of COGSA, the proper holder related to the “bill of lading”, incurs serious form of liabilities on proper condition that holder need to demand or take proper delivery of good from carrier. Between these mentioned two conditions, a minimum of one condition needs to be triggered, prior of the carrier suing the holder regarding “breach of contract”. Additionally, under COGSA, an individual that comprises proper holder of the “bill of lading”, and could be identified in bill, marks consignee of goods, to which the bill further relates. It is to be noted that check needs to be proceeded towards “sale of goods”, to individual that brings a claim. In this context, in case of goods not being delivered at discharged port or in times of casualty the “bill of lading”, further ceases towards delivering a right related to possession upon potential delivery. In this scenario, the claimant could be provided residual form of rights under the bill, which is towards claiming damages regarding misdelivery claims.
During shortage of delivery “cargo claimants”, could be held liable towards owners regarding the cost of storage of the cargo following the physical form of discharge from vessel; however, the pending delivery the costs related to doing the same further outweighs the value regarding the cargo. Under the COGSA, during “breach of contract”, regarding shortage of delivery, delay or damaged goods, the lawful holder as per the “bill of lading”, comprises of essential liabilities . It includes formally demanding towards taking physical form of possession from any of carrier regarding the goods, which the bill relates. The liabilities further extend towards making a formal claim against “carrier” through court proceedings; like arresting the ship. This kind of liabilities regarding interest of cargo might include different losses, which could rise from any shipment of dangerous form of cargo or “duty to take delivery of cargo”. In this context, the shipper becomes properly liable even without operation of COGSA, 1992.
Limitations of liabilities of the carriers
It is to be noted that “Limitation of liability”, refers to various responsibilities of carriers regarding legal procedures against different claims and its direct form of connection with carrier’s performance in terms of handling the logistics. In this context, the limit regarding responsibility further indicates to a certain extent, in which a carrier is further involved in a proper process of the carriage along with various associated services that shippers requires during transportation . In this context, purpose regarding “limitation of liability”, implies exclusion or serious form of limitation regarding party’s liability to the other contractual party.
According to “The Hague-Visby Rules”, a regime-based limitation is provided in terms of both weights as well a package, which becomes applicable during claims regarding sea-carriage. The UK has repealed “Hague Rules”, for being properly implemented in Charterparties as well as the “bill of lading”, through expressing a contractual form of agreement within the parties . According to the aforementioned rule, it provides a restriction or limitation of a package of £100 every package (gold value) . Therefore, a responsible form of carrier will be entitled towards limiting their respective liability, on the grounds of weight of the damaged cargo, or the cargo that has been lost. It could be also limited as per the number of cargo packages, which have been damaged or lost.
Conclusion
Conclusively, the claimants can hold the right to sue the carriers if the carriers have interests in cargo and there exists a “bill of lading” stating the liabilities and rights of the claimants for taking actions against the carrier in case of delays or damages of goods delivered on cargo. COGSA Act protects the claimant and provides him with the right to hold the “title to sue” the carrier in case of a breach-of-contract resulting from negligence for recovering the damages. In cases of improper statement on “bill of lading” regarding the condition of cargo of the goods at time of loading, can also make the claimant entitled to take reasonable action against the carrier if he proves to have caused wilful damage to the goods.
Reference List
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