Abstract
As seen so far, the charterer or shipper may be exposed to liability vis-à-vis the shipowner or carrier due to the shipment of dangerous goods, whether strict or fault-based liability, for resulting damage to the vessel or other cargo onboard, injury to the crew, damage, the costs of disposing of the cargo and cleaning the vessel, and even for damage to the environment. Moreover, not only dangerous goods but any good which damages the ship’s other cargo due to the defective nature or packing or lack of information with regard to handling conditions may result in liability. Likewise, a shipper or charterer may be responsible for loading and unloading goods and thus liable for resulting damage.
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References
Nunes, “Charterer’s Liabilities under the Ship Time Charterer” [2004] 26 Hous. J. Int’l. L.561.
Selving, Unit Limitation of Carrier’s Liability (1961), 24.
Ibid.
Ibid.
Ibid. at 26.
Selving, Unit Limitation of Carrier’s Liability (1961), 26.
Ibid. at 28.
Ibid. at 29.
Tetley, Marine Cargo Claims (1988), 640.
Under English law, it is possible to claim damages if the delivery of the cargo has been delayed due to the carrier’s breach of contract. Griggs/Williams/Farr, Limitation of. Liability for Maritime Claims (2005), 145; Tetley, Marine Cargo Claims (1988), 309; Gaskell/Asariotis/Baatz, Bills of Lading and Contracts (2000), 342.
Ibid. In The Breydon Merchant”[1992] 1 Lloyd’s Rep. 373, it was held in the context of Art. 2(1)(a) of the 1976 Limitation Convention that goods which suffered a diminution in value as a result of “actionable delay” were to be treated as damaged.
Karan, The Carriers Liability under the International Maritime Conventions the Hague, Hague-Visby, and Hamburg Rules (2004), 217 f.
Wilson, “Basic Carrier Liability and the Right of Limitation”, in Mankabady (ed.) The Hamburg Rules on the Carriage of Goods by Sea (1978), 138, 146.
Mankabady, “Comments on Hamburg Rules”, in Mankabady (ed.) The Hamburg Rules. on the Carriage of Goods by Sea (1978), 27, 62.
The preferential treatment afforded vessel owners under a limitation system has been justified on many grounds, including that of national defense. However, it seems that the economic rationale is the more persuasive. As waterborne commerce began to expand in the Middle Ages, it became more difficult for shipowners to accompany their vessels on the increasingly longer voyages. In addition, it was recognized that sea carriers incurred greater financial risks than land carriers as sea adventures are peculiarly liable to mishaps of appalling extent since the owner must entrust this ship to servants who, no matter how carefully selected, may by a moment’s inattention or carelessness, cause a disaster. Donovan, “The Origins and Development of Limitation of Shipowners’ Liability” [1979] 53 TLR 999, 1002.
Seward, “The Insurance Viewpoint”, in Limitations of Shipowners’ Liability: The New. Law (1986), 161.
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Thomas, “British Concept of Limitation of Liability,” 53 TLR 1205, 1205 ff. Shortly after this development, the privilege of limited shipowners’ liability made its first statutory appearance in the United States, in the states of Massachusetts (1819) and Maine (1821).
New Jersey Steam Nav. Co. v. Merchant’s Bank, 47 U. (6 How.) 344 (1848).
Eyer, “Shipowners’ Limitation of Liability-New Directions for Old Doctrine” [1964] 16 Stan. L. Rev. 370, 372.
Seward, “The Insurance Viewpoint,” in Limitations of Shipowners’ Liability: The New. Law (1986), 161, 163.
Ibid.
Buglass, “Limitation of Liability Form a Marine Insurance Viewpoint” [1979] 53 TLR 1364, 1364. Long ago it was estimated that liability insurance premiums might increase twenty-five to thirty percent if shipowners (and therefore underwriters) were deprived of this shield. Affidavit of a marine underwriter in In re Independent Towing Co.242 F.Supp.950, (E.D. La. 1965).
Ibid.
Ibid.
Selvig, “An Introduction to the 1976 Convention,” in Limitation of Shipowners. Liability: The New Law (1986) 3, 5.
Griggs/ Williams/ Farr, Limitation of Liability for Maritime Claims (2005), 11; Hodges/Hill, Principles of Maritime Law (2001), 528.
Ibid. at 7 ff.
Ibid. at 11. By contrast, it is argued that the wording of Art. 1 is unqualified and so it must refer to all charterers; Hodges/Hill, Principles of Maritime Law (2001), 529.
Ibid. at 15.
Ibid at 18.
Such as in the Tojo Maru [1971] 1 Lloyd’s Rep. 341, where the House of Lords held that the salvors were not entitled to limit their liability, since the negligent act of the diver was not an act done either in the management of or on board the tug.
Griggs/ Williams/ Farr, Limitation of Liability for Maritime Claims (2005), 19.
Griggs/ Williams/ Farr, Limitation of Liability for Maritime Claims (2005), 22.
Hodges/ Hill, Principles of Maritime Law (2001) 540 ff.; Griggs/Williams/Farr, Limitation of Liability for Maritime Claims (2005), 24.
Ibid. at 551 f.
Ibid.
Ibid.
[2004] 1 Lloyd’s Rep. 460, 469.
Mustil, “Ships are different-or are they?” [1993] LMCLQ 490. Demise charterers were granted the right to limit under the Merchant Shipping Act 1894 by the Merchant Shipping Act 1906, presumably because they were thought to deserve the same protection as shipowners sued by third party claims.
Gaskell, “Pollution, Limitation and Carriage in the Aegean Sea”, in Rose (ed.) Lex Mercatoria, (2000), 71, 81.
Ibid.
[1998] 2 Lloyd’s Rep. 39.
Ibid. at 40.
Ibid.
Ibid.
Ibid. at 45.
Ibid.
Ibid. at 47.
Ibid.
Ibid. at 48.
Aegean Sea [1998] 2 Lloyd’s Rep.39, 50.
Gaskell, “Pollution, Limitation and Carriage in the Aegean Sea”, in Rose (ed.) Lex Mercatoria (2000), 71, 82 f.
Ibid.
[2004] 1 Lloyd’s Rep. 460.
Ibid. at 467.
Ibid. at 469.
Ibid. at 463.
[2004] 1 Lloyd’s Rep. 460, 464.
Thomas, “Limitation of Liability — London Convention 1976 — Definition of Charterer — Right to Limit — Limitable Claims — Articles I(2) and 2(1)(a), CMA CGM SA v. Classica Co. Ltd” [2004] (10) JML 122, 123.
[2004] 1 Lloyd’s Rep. 460, 464.
Ibid. at 465.
Ibid.
Ibid.
Ibid.
Ibid. at 467.
Ibid.
Ibid.
Ibid.
Ibid. at 468.
Ibid.
Ibid. at 469.
Ibid.
Thomas, “Limitation of Liability — London Convention 1976 — Definition of Charterer — Right to Limit — Limitable Claims — Articles I(2) and 2(1)(a), CMA CGM SA v. Classica Co. Ltd” [2004] (10) JML 122, 124.
Andrewartha/ Hayhurst, “English Maritime Law Update: 1998” [1999] 30 J. Mar. L. & Com. 457, 486.
Gaskell, “Pollution, Limitation and Carriage in the Aegean Sea”, in Rose (ed.) Lex Mercatoria, (2000) 71, 85.
Ibid. at 86.
Griggs/ Williams/ Farr, Limitation of Liability for Maritime Claims (2005), 11.
Ibid.
Six motives and three situations which have impelled the enactment of limitation statutes. The motives have been pointed out. The motives are the idea of joint venture, high cargo values, limits on share capital, ruin without fault, the attraction of local venture capital and general benefit to users. Situations in which a right to limit may be regarded as desirable are various, but there are three very broad ones: “closed” situations, “partly closed”, “open” situations. Mustill, “Ships Are Different, or Are They?” [1993] LMCLQ 490, 491 ff.
Schoenbaum, Admiralty and Maritime Law (2004), 759.
Kim, “Shipowners’ Limitation of Liability: Comparative Utility and Growth in the United States, Japan and South Korea” 6 U.S.F. Mar. L.J. 357, 363; Seward, “The Insurance Viewpoint”, in Limitations of Shipowners’ Liability: The New Law (1986), 161, 163.
Ibid.
Ibid. at 364.
Ibid.
Ibid. at. 390.
Mustill, “Ships Are Different, or Are They?” [1993] LMCLQ 490, 500.
The Amalia (1863) Br. & L. 151.
Hazelwood, P&I Clubs Law and Practice (2000), 141.
Ibid.
Ibid. at 152.
Hazelwood, P&I Clubs Law and Practice (2000), 81.
Ibid. at 98.
Ibid. at 99.
Wu, “What are the key charterers’ risks?”, Club Cover CLC01/07, 2 f. <www.ukpandi.com/ukpandi/resource.nsf/Files/charterers%20brochurejan2007/$FILE/charterers+brochurejan2007.pdf> (visited 3.3.2007).
Hazelwood, P&I Clubs Law and Practice (2000), 231.
Ibid.
Martin, “HNS: A P&I Club Perspective”, in The Transportation of Hazardous Cargoes. by Sea: Managing Your Risks and Undertaking the Consequences of the Law (1993), 16 f. This exception in club rules is the warranty implied by the Marine Insurance Act 1906 that the adventure insured is a lawful one and will be carried out in a lawful manner. Sec. 41.
Ibid.; Hazelwood, P&I Clubs Law and Practice (2000), 176.
Martin, “HNS: A P&I Club Perspective”, in The Transportation of Hazardous Cargoes. by Sea: Managing Your Risks and Undertaking the Consequences of the Law (1993), 19.
For the coverage of charterers’ liability insurance, see Schwampe, Charterers’ Liability. Insurance (1988), 24 ff.
Ibid. at 107.
Schwampe, Charterers’ Liability Insurance (1988), 108.
Schwampe, Charterers’ Liability Insurance (1988), 116.
Schultsz, “Insurance aspects of shippers’ liability” in in Grönfors (ed.), Damage from. Goods (1978), 60, 63.
U.S. 49 CFR 387.9 requires compulsory liability insurance for road vehicles with coverage between $ 1,000,000 and 5,000,000. Giermanski/Neipert, “The Regulations of Freight Forwarders in the USA and its Impact on the USA-Mexico Border” [2000] 9 WTR Currrents: Int’l Trade L.J. 11, 16. In Turkey there is compulsory liability insurance on dangerous substances.
In the U.S. it is estimated that depending on materials handled, minimum premium for this insurance would be $15,000 per year. Ibid.
Webster, “Managing Risk” [2004] 18(9) M.R.I. 15, 16.
Baram, “Insurability of Hazardous Materials Activities” [1988] (3.) J. Statist. Sci. 339, 340.
Ibid. at 342.
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(2008). Limitation of liability and insurance. In: The Carriage of Dangerous Goods by Sea. Hamburg Studies on Maritime Affairs, vol 12. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-540-75837-2_6
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