The Carriage of Goods by Sea Act: a Case Study

>Introduction 

The law relating to the carriage of goods by sea is significantly difficult to master. In general terms, it often involves overlapping jurisdictions, which can make it difficult to ascertain the governing law of the contract, unless the law has been expressly agreed by the parties to the contract. In this case, it is clear that the Hague-Visby Rules apply, given their express designation in the bills of lading relating to the crates.

Other contracts may not be as clear, and would require consideration of relevant domestic legislation in order to determine what law (and what jurisdiction) governs the terms of the agreement. This matter also presents a number of other issues, as while Cherie was a party to the contract from its formation, Tony became a party at a later stage by purchasing goods on board from Cherie, while they were in transit. All these matters will be considered in detail by this brief. This brief will firstly consider 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 prominent issue in this contract is the clause which specifies that the ship is not permitted to deviate from the course of the voyage, except as to save life. This brief will seek to determine whether or not this clause is enforceable in the scope of the contract. Additionally, this brief will also consider the provisions of the governing Hague-Visby Rules on this very same issue, which may serve to have Cherie’s claim against O substantiated should the express term in the contract fail in its enforceability for whatever reason.

This brief will also consider Tony’s claim in relation to the goods he purchased ‘afloat’. That is, Tony purchased the goods from Cherie while they were already in transit, without negotiating with another party in relation to shipment and similar. The terms 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 arriving at the same destination. Thus, this brief will consider relevant principles in relation to Tony’s ability to rely on the indorsed bill of lading as a subsequent party to the contract (and not a party at the formation of the original contract). 

In addition, this brief will also consider the relevant textual provisions of the governing Hague-Visby Rules relating to a shipper’s obligation to not deviate from the course of the voyage, except to save lives. These provisions will answer the question in relation to liability in this claim. Finally, this brief will consider the jurisdiction that these claims need to be brought.

This is important, as it is very well to have the substantive basis for a claim but if a court is not competent to hear the matter on a jurisdictional basis, then no recourse can be achieved. Thus, it is important to determine the appropriate forum in order to save the claimants’ time and resources in regards to recovering any losses they are entitled to receive as a result of O’s negligence or intent (if any). Thus, this brief will now cover these claims in order, beginning with Cherie’s claim. 

Re: Cherie’s Claim 

I am asked to advise Cherie in respect of the loss and/or damage incurred as a result of the alleged negligence of O in relation to the crates of gin, shipped from New York to London. In order to determine possible liability, it is firstly important to analyse the terms of both the bill of lading and the contract of carriage. In relation to the contract of carriage, it has been established in the facts that the contract contains a clause specifying that O is not permitted to deviate from the course, unless it is specifically required to save life.

However, it has also been established that the bill of lading does not contain such a clause, thus it is important to recognise which of these two documents carries legal superiority in order to determine liability. 

The common law of the United Kingdom has recognised over a great period of time that the bill of lading does not necessarily constitute the contract of carriage itself, but rather merely provides evidence that such a contract exists.[1] This is displayed in the case of SS Ardennes (Cargo Owners) v SS Ardennes (Owners) [1951] 1 QB 55, where Lord Goddard CJ held that: It is, I think, well settled that the bill of lading is not in itself the contract between the shipowner and the shipper of the goods, though it has been said it is excellent evidence of its terms… If one was to consider this precedent in the context of the current fact scenario, it is clear that the contract of carriage reigns supreme over the bill of lading. If this was the case, then the clause stating that O was not to deviate becomes enforceable at law, whereas the absence of any such provision in the bill of lading would make such an argument inadmissible in court.

The main issue with this argument, however, is the onus of proof it provides on Cherie to prove that the terms of the bill of lading are inconsistent with the contract of carriage. While this initially seems to be an easy task, Cherie must provide proof that the contract of carriage came into existence prior to the bill of lading in order for the contract of carriage to be afforded legal superiority. The courts will generally regard the terms of the contract on the reverse of the bill of lading as excellent evidence of the terms of the contract, unless the claimant can satisfy the burden of proof in order to suggest that the contract of carriage is both inconsistent and came into existence prior to the bill of lading.

If this evidence can be provided by Cherie, then there is every chance that the contract of carriage in enforceable in a court. 

Otherwise, it would appear a court would be more likely to enforce the terms present on the reverse of the bill of lading. If Cherie is able to substantiate the claim, it would appear likely that C is able to claim damages for the loss of profit as a result of the delay caused by O. This delay caused Cherie to not receive the stock in time to sell during the peak gin-drinking season in London, due to the post-exam celebrations.

It is also important to note, however, that the contract of carriage will also be governed by the Hague-Visby Rules, given that the contract of carriage provides for a bill of lading, and that bill of lading expressly incorporates the Hague-Visby Rules.[5] Additionally, the substantive provisions of the Hague-Visby Rules do not provide a defence for O to Cherie’s claims, through excluded cargo or voyages or similar provisions. 

As such, there is every likelihood that Cherie’s claim against O will succeed, due to O’s breach of contract. In summary, the situation presented in regards to Cherie’s claim indicates that such a claim against O will succeed if it is presented to a court within the limited amount of time prescribed by the Hague-Visby Rules. There is quite a significant burden of proof imposed on Cherie in order for the claim to succeed, however given that the facts clearly seem to be working in Cherie’s favour, satisfaction of this burden of proof should not be an issue.

Provided this burden of proof can be satisfied, then there is every chance that the court will see the contract of carriage (if it was enacted prior to the bill of lading) as enforceable, and thus will most likely hold O accountable for the loss incurred by Cherie as a result of the delay, which was in breach of the contract of carriage (but not the bill of lading). The Hague-Visby Rules also provide for a prohibition on deviation unless it is ‘reasonable’, which this case does not appear to be. This will be discussed in more detail below in Tony’s Claim;[7] however the facts seem to indicate that O is liable regardless of whether or not the original contract is enforceable. 

Re: Tony’s Claim 

I am also asked to advise Tony in relation to the loss of goods incurred as a result of the alleged negligence of O, due to their attendance at the reggae music festival in Haiti. Given that it was O who deviated from the initial course of the voyage, and it was also O responsible for the general upkeep and security of the ship, it is only reasonable that Tony seek to recover his loss from O, even though Cherie was the party who sold the goods to Tony. The common law of the UK has dealt with the concept of a third party having rights to the original contract of carriage upon the bill of lading being endorsed to them.

This raises the question then as to whether Tony can rely upon the original contract of carriage between Cherie and O which provided that O was not permitted to deviate from the course of the voyage, unless it is necessary to save life. Statutory law would suggest that this contract could be relied upon by Tony, which states that Tony has all the rights of suit against the bill of lading “as if he had been a party to that contract”. 

However, this seems to be inconsistent with the common law, which states: …it may be true that the contract of carriage is made before [the bill of lading] is given because it would generally be made before the goods are sent down to the ship; but when the goods are put on board the captain has authority to reduce that contract into writing; and then the general doctrine of law is applicable by which, where the contract has been reduced into writing, which is intended to constitute the contract, parol evidence to alter or qualify the effect of such writing is not admissible, and the writing is the only evidence of the contract. This presents problems in relation to Tony’s claim, as it highlights inconsistency in the law. 

Essentially, the common law suggests that any contract negotiated between the original parties is inadmissible under the parol evidence rule, which would mean that Tony would be unable to rely on the ‘not to deviate’ provision of the original contract of carriage, thus would not be able to hold O accountable for the loss incurred as a result of the delay. Yet statutory law suggests that Tony is entitled to exercise all legal rights to the contract as though he was a party to the original contract, which would mean that he in fact could hold O accountable for the loss. The resolution of this problem requires the application of common sense.

The common law presented is significantly outdated, whereas the statutory law came into effect in 1992. Thus, it must be concluded that the statutory law has more binding effect than the common law. Therefore, as a result, it can only be concluded that Tony has the right to rely upon the original contract of carriage between Cherie and O, thus is able to exercise the ‘not to deviate’ clause at law. 

In summary, the substantive issues of Tony’s claim are essentially similar to that of Cherie. Due to O’s negligence; approximately 50 crates of gin were stolen. Under the Hague-Visby Rules (whether or not the ‘not to deviate’ clause was enforceable’), the carrier has an obligation to carefully “load, handle, stow, keep, care for and discharge the goods delivered”.

Thus, it is clear that O is liable for the stolen crates, and must pay damages accordingly. With regard to deviation, whether or not the original contract is enforceable, the Hague-Visby Rules expressly prohibit deviation unless it is ‘reasonable’. Thus, it would appear that O is liable for Tony’s loss in any event. 

Jurisdiction of Claims 

Given that the port of shipment is New York, it would be reasonable to conclude that a US court has jurisdiction to hear these claims by both Tony and Cherie. This is evidenced by the fact that the Carriage of Goods by Sea Act 1971 (UK) does not provide for the application of UK law, given that the port of shipment is not a UK port. Additionally, the US Carriage of Goods by Sea Act 1936 provides it to apply where a contract of carriage is undertaken between ports of the US and foreign ports.

This may preclude the operation of UK statutes mentioned above, but does not necessarily preclude the operation of the common law where those cases have addressed the Hague-Visby Rules. 

Conclusion 

In relation to this matter, it appears that both parties are able to substantiate claims against O, and thus retrieve any losses they incurred as a result of O’s conduct in delivering the goods. Both parties entered into a contractual arrangement with O to have the goods delivered to London from New York, they merely entered into this agreement in different ways. Cherie incurred significant losses as a result of the delay, which was caused by O deviating from the course of the voyage to visit Haiti, where a reggae music festival was taking place.

As a result, Cherie missed the peak season for selling the gin, which was the main rationale behind the contract in the first place. 

In addition to Cherie’s loss, Tony also incurred the same loss as a result of the delay, while also having a number of crates stolen from the ship in Haiti due to the crew’s negligence to secure the load against theft while attending the festival. According to the relevant legal principles that were discussed above, it would appear that Cherie’s claim against O can be substantiated. This argument is two-pronged.

Firstly, Cherie is entitled to rely on the express contractual provision that O was not permitted to deviate from the course of the voyage, except to save life. In addition to this, the governing Hague-Visby Rules also provide that O was not permitted to do so. Thus, not only does the not-to-deviate clause form an express term of the contract, it is also implied through application of governing law. As a result, O is liable to Cherie for the loss of goods incurred as a result of the delay. 

Additionally, O may also be liable for damages for loss of profit as a result of their conduct. Also based on the facts, it is clear that the substantive issues of Tony’s contract are essentially similar to Cherie’s. The case law discussed above does not appear to allow Tony to rely on the terms of the contract in the same way that Cherie was able to, thus reference must be given to other relevant legal principles, such as governing law.

In addition to this, given that it has been established that the jurisdiction of the case is the United States, there would be no scope to seek the application of the UK’s Carriage of Goods by Sea Act 1992, which would then grant Tony the same rights as Cherie to the contract. Given this fact, it is clear that Tony must rely upon any relevant provisions of the governing Hague-Visby Rules in order to substantiate a claim against O. This was already discussed in Cherie’s claim, and it was established that the Hague-Visby Rules provide for the same not-to-deviate clause that is specified in the contract, and hence Tony can rely on this in order to mount his claim. 

Thus, according to the law, O would be laible to Tony not only for the profit lost as a result of missing the peak gin-drinking season, but also for the crates that were stolen from the ship as a result of the crew’s negligence while partying in Haiti. 

Research Report 

In preparing this report, I consulted a number of sources. I initially consulted the most up to date hard copy sources I had access to in my library, which I found was a 2007 edition of Girvan’s Carriage of Goods by Sea. This had the most up to date law, but was essentially written from a UK perspective, which made it difficult to fully gauge the international impact of this fact scenario.

As such, I then consulted an Australian book, written by Moens and Gillies, which I know by reputation provides a very broad look at issues relating to international trade. I then backed up this diverse research with another book, written by Debattista, which may serve to fill in any gaps that the other two books may have had. 

Girvan’s book proved to be the most efficient, covering the main issues of deviation, as well as providing a deep insight into the operation of the Hague-Visby Rules, and the relevant domestic legislation relating to jurisdiction. It was Girvan’s book that helped me to conclude that the United States was the most appropriate forum to entertain both claims, due to the operation of its domestic law. It discusses United States law in a limited capacity by comparison to English law, however the American sources it discusses were quite valuable, and allowed me to draw reasoned legal conclusions based on the evidence presented in the book, in conjunction with research from other sources.

I also consulted LexisNexis to provide a number of cases in relation to negligence and deviation; however I was not able to find any significant cases that proved to elaborate upon the ideas presented in the books I found. This general search was performed by entering “hague visby rules” into the search dialogue box. 

A number of cases appeared in the search, but no directly relevant cases were found by this approach. I did use LexisNexis to find the full text of the cases mentioned in the books, which allowed me to draw my own conclusions from the information presented in the books, free from any influence from the authors’ ideas. This was done by entering the relevant party names into an international law search or domestic law search, as was relevant at the time.

I found this to be the most efficient way of conducting my research, as the books helped to guide me in the right direction, while I still had to use my own legal research and reasoning skills to apply the law to the facts situation. Online sources are difficult to consult where one has little grounding in the jurisdictional or substantive issues of the case, thus I was determined to not use them until I grounded myself in these concepts. 

I felt there was little point in clouding myself with a jumble of legal jargon which appeared to serve no value until I had an idea as to how to approach it, which is why the hard copy sources I consulted where valuable (some more so than others). Generally, I found it significantly difficult to locate a number of materials initially, given that I was unfamiliar with what legislation and case law to consult. This was predominantly due to me not knowing what jurisdiction I needed to refer to in detail (i.e.

should I consult UK sea carriage law, or should I concentrate on that of the United States?). This became a question that could only be answered as I was answering the brief itself. 

Thus, I had to make a decision to get some general guidance from the UK sources, which also contained information on the international rules, such as the Hague-Visby Rules, but this information was significantly limited to how it related to the UK context, which was not necessarily appropriate to such a question which seemed to have overlapping jurisdictions. As previously mentioned, the best source for this initial guidance was the book by Girvan, as it covered all bases in regards to a basic introduction to the salient points of law. It was difficult for me to consult any online sources without first grounding myself in the relevant international law first, as I was unclear what jurisdiction I should specifically be concentrating on. 

The English cases in Girvan also gave a good indication to how the domestic courts tend to interpret international provisions when they are the subject of their jurisdiction, which allowed general conclusions as the applicability of various international provisions. It does discuss the Hague-Visby Rules, but in a limited context. Thus, after consulting Girvan it was best for me to familiarise myself with the full text of the relevant sections of the Hague-Visby Rules, given their significance to the current matter.

This was in conjunction with various cases that I discovered in LexisNexis, and I will discuss my processes in more detail below. As previously mentioned, I also had to consult the full text of the Hague-Visby Rules, as the books were somewhat reluctant to provide the full text. This was beneficial, as not only did I again have to apply my legal research skills, but I also had to draw my own conclusions based upon the ‘raw’ law. 

However, I was able to use LexisNexis to see what cases applied specific provisions of the law, in order to seek elaboration on points I was not completely clear about. While I did not necessarily refer to these in the text of the essay, I was able to gauge the context that the text actually meant, which ensured that I applied an approach that was consistent with the judicially-acceptable approach. Thus, overall I was able to provide a well-rounded piece which applied only the key relevant points, ensuring it adequately addressed the question, while also applying the correct law in force at this current point in time.

I would recommend this approach to others, as it gives one a good grounding in this area of law, while also ensuring that one’s own legal skills develop in the process, without having to rely solely on the ideas of others.

Bibliography Books

1. Debattista, C, The Sale of Goods Carried by Sea (1998, 2nd ed), London: Butterworths
2. Girvan, S, Carriage of Goods by Sea (2007), London: Oxford University Press
3. Moens, G, and Gillies, P, International Trade and Business: Law, Policy and Ethics (2006, 2nd ed), Sydney: Cavendish

Legislation

1. Carriage of Goods by Sea Act 1936 (US)
2. Carriage of Goods by Sea Act 1971 (UK)
3. Carriage of Goods by Sea Act 1992 (UK)

Cases

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

Footnotes

1. See Crooks v Allen (1879) 5 QBD 38 (CA), 40; Moss Steamship Co v Whinney [1912] AC 254, 264. 
2. SS Ardennes (Cargo Owners) v SS Ardennes (Owners) [1951] 1 QB 55, 59-60 (Lord Goddard CJ). 
3. See, for example, National Jaya (Pte) Ltd v Hong Tat Marine Shipping Pte Ltd [1979] 2 MLJ 6. 
4. See, for example, Playing Cards (M) Sdn Bhd v China Mutual Navigation Co Ltd [1980] 2 MLJ 182 where an attempt to overcome the burden of proof failed. 
5. Hague-Visby Rules, art I(b). See also Carriage of Goods by Sea Act 1971 (UK), s 1(4) relating to the application of the Rules to contracts of carriage where the contract provides for a bill of lading to be issued. 
6. Hague-Visby Rules, art III(8) prescribing a period of twelve months to bring a suit. 
7. Hague-Visby Rules, art IV(4). 
8. Leduc v Ward (1888) 20 QBD 475 (CA). 
9. Carriage of Goods by Sea Act 1992 (UK), s 2(1). 
10. Leduc v Ward (1888) 20 QBD 475, 479 (CA). 
11. Hague-Visby Rules, art III(2). 
12. Hague-Visby Rules, art IV(4). The general test for this rule is provided by Stag Line v Foscolo, Mango & Co Ltd [1932] AC 328, 343-4, which provides that a deviation may be reasonable in situations where it is made in the interests of the ship or the cargo, or where an emergency required the ship to deviate. 
13. Carriage of Goods by Sea Act 1971 (UK), s 1(3). 
14. Carriage of Goods by Sea Act 1971 (US), see 46 USCA 1310.

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