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CARGO DAMAGE, LOSS, AND SHORTAGE
The obligations upon carriers in relation to the carriage of goods by sea often give rise to problems. The contracts under which goods are carried generally determine the obligations and responsibilities of the carrier (this term in almost every case includes the ship owner). However, in respect of any one voyage there may be several related contracts. Sometimes the terms of all the contracts are consistent but sometimes they will conflict with each other.
A charter‑party and bill of lading often represent two separate contracts in respect of the same voyage. The Master should never assume that the charter‑party is irrelevant because a bill of lading has been issued, or, similarly, a bill of lading is irrelevant because the owners have entered into a charter‑party. If a problem arises, the Master and owners will be called upon to show that they have properly performed both contracts. Highlighting the importance of evidence, the Master will have show what he has done to fulfil the terms of both contracts.
Sometimes problems arise because local practice may prevent the Master from fulfilling his responsibilities under these contracts. Authority given to the Master under a contract to do a particular act may be lawful in the country where the contract was made, but may not be permitted in the country where the work has to be done. For example, it may be customary in the country where the contract is made for stevedores to be under the direct control of the Master. However, the Master will be unable to exercise control if, at the port of loading or discharging, the stevedores answer to the port authority alone.
Therefore, it is essential that the Master is familiar with the terms of all the contracts applying to the particular voyage and with local practices and regulations which affect the performance of these contracts. The Master will be able to obtain information about the contracts from owners and charterers and obtain information about local custom from owners' local agents and P&I correspondents.
International conventions, especially the Hague Rules and the Hague‑Visby Rules, attempt to arrive at a common approach to some of the basic issues in relation to the carriage of goods by sea. Although these rules have been adopted by many countries the local interpretation of them may differ. Thus, it is important for the Master to seek advice from owners and their local agents for clarification of any
Nevertheless, most contracts incorporate either
The outline of this chapter is as follows:‑
A seaworthy ship,
The exercise of due diligence;
The bill of lading;
Evidence required from the vessel
The Master's report.
In the appendix to this chapter, a case history is provided.
Before proceeding to the main body of this chapter, it is important to remember that the most fundamental principle underlying the carriage of goods by sea is that the carrier is entrusted with another person's property to transport it from one place to another. Therefore, if that person's property is lost or damaged in transit the carrier will have to account for that loss or damage.
The first provisions of the Rules concern the ship (see Article III, rule 1). This rule imposes an obligation on the carrier to take good care to make the ship seaworthy. As the Master represents the ship owner on board the vessel, it is important for him to be aware of the precise meaning of the term seaworthy so that in the event a problem arises he will know what kind of evidence will be required to
enable owners to defend any claims brought against them.
A Seaworthy Ship
A seaworthy cargo ship is one which can take its cargo to sea without risk of danger and damage to either the ship or the cargo arising out of the ordinary marine environment or the failure of the ship itself. A seaworthy ship must be fit in relation to its hull and machinery, its holds and equipment, and its manning and ship‑board procedures. The vessel must be in good condition and must have everything it needs in order to perform its task properly.
The Exercise of Due Diligence
Under the Rules, the carrier is obliged to exercise due diligence to make the ship seaworthy before it puts to sea. Exercising due diligence means taking good care.
If problems arise on board during the course of a voyage, the test for determining whether or not the carrier has taken good care to make the ship seaworthy is as follows: 1 Should the defect have come to light by the careful checking of the ship before the voyage began?
If so, would a careful owner have mended that defect before sending the ship, with her cargo on board, to sea?
In order to ensure that good care has been taken, there is no substitute for the proper and regular checking of all aspects of the ship and its manning, of all work, maintenance, and repairs carried out on board. Moreover, all procedures and standing instructions which are in force on board should be reviewed in order to ensure that these are adequate and well suited for the ship putting to sea and safely carrying its cargo. All checks and regular maintenance work should be carded out as regularly as necessary to avoid failure in the vessel, its personnel or its procedures.
The Master and the crew should not rely on the findings of the outside examiners such as classification society or underwriters' surveyors. These surveyors have different interests and do not usually work to the same guidelines, standards or requirements.
All of the checks and regular maintenance work carded out by the crew should be properly recorded and documented. If something does go wrong and cargo is lost or damaged, then the presumption will be that the carder has not taken good care to make the vessel seaworthy. In order to refute this presumption, the carrier must have evidence in the form of log books, work schedules, work books, work specifications, accounts, standing instructions, reports, and contemporaneous correspondence to
show that good care has been taken to make the vessel seaworthy.
In addition to the obligation to take good care to make the ship seaworthy, the Rules also impose an obligation on the carrier to take good care to look after the cargo from the time it is entrusted to him until the time that it is delivered to the receiver (see Hague Rules, Article III, rule 2). If the cargo, at the time of delivery, is lost or damaged, the carder will be called upon to explain how the loss or damage occurred.
The period of time during which the carrier must take good care of the cargo can only be determined by looking at many different factors. The relevant contracts (for example, the charter‑party and bill of lading) will usually determine the period of time during which the carrier remains responsible for the cargo. However, local laws may override or refuse to recognise contractual provisions which conflict with local regulations or practice.
The obligation on the carrier is to do everything necessary to deliver the cargo to the receiver in as good condition as when it was entrusted to the carder. The carrier, therefore, must ensure that all cargo handling operations, including the loading, stowing, carrying, and discharging, are done properly and carefully. Moreover, the carrier must ensure that the cargo is properly cared for and kept so that the condition of the cargo is maintained. The Master should be fully aware of any special attention that the cargo may require. Information and instructions with regard to the treatment of cargo should be sought in writing from the shipper. If the Master has any reservations about this information, he should request the assistance of owners or their local agents who may appoint an independent surveyor, or expert.
The carrier may be held responsible for any problems which arise out of any of the cargo handling operations which he has contracted to undertake or arrange. In addition, the carrier will be held responsible for any cargo handling operations for which, under the local laws, he is primarily responsible, whether or not he has contractually undertaken to do these operations. Therefore, it is essential that the Master is aware of the local laws, custom, and practices as well as the provisions in
the relevant contracts which relate to cargo handling operations. The owners' local agents or local 1PM correspondents should be able to advise him of local laws which dictate that particular cargo operations fall within the carrier's responsibility.
If a particular cargo handling operation, which is the carrier's responsibility, is not carried out properly, the carrier will be unable to avoid liability if loss or damage occurs to the cargo even if the Master inserts into the statement of facts an endorsement stating that the carrier is not responsible. Such endorsements may be of evidential value for indemnity proceedings and the Master may note on the statement of facts or in correspondence any irregularities relating to the cargo handling operations.
The standard of care required of the carrier is independent of the usual custom or practice. The carrier's obligation is to look after the cargo properly and carefully and it will be no defence to a claim for damage to say that the cargo was carried in accordance with usual practice.
In order to avoid liability if cargo is lost or damaged, the carrier will have to demonstrate that his obligation of caring for the cargo has been fully and properly discharged. Therefore, the Master must ensure that all cargo handling operations are accurately recorded and fully documented so that the carder will be able to bring forward the evidence necessary to defend a 0aim.
The Bill of Lading
From the viewpoint of both the carrier and the shipper, documents which demonstrate the amount and the condition of cargo carried on the ship are essential.
The bill of lading is the most important of such documents.
The Rules provide for the bill of lading to be a record of the quantity of
cargo and its apparent order and condition at the time the cargo is entrusted
to carrier's care and responsibility (see Hague Rules,
Without ever having seen the cargo, prospective buyers often decide to purchase goods on the basis of the description in the bill of lading. If bills of lading are issued which inaccurately describe the cargo the consequences may be extremely costly for the carrier. Therefore, it is essential that all the information on the face of the bill of lading is checked carefully.
The carrier is under an obligation to verify the amount of cargo and to verify its condition and identifying marks at the time the cargo comes into his custody and care. The Master should ensure that all the proper arrangements are made for this purpose and should seek clarification from owners if they have not been made.
The carrier will be unable to avoid liabilities which arise as a result of a failure to check the cargo unless a check is not reasonably possible. Furthermore, endorsements on the bill of lading, such as 'shipper’s figures', 'figures as per shore tally', 'quantity and condition unknown', or 'said to be…” , will seldom absolve the carrier of blame if he, being able, has failed to check the particulars of the cargo to his own satisfaction.
The Master should not state anything in the bill of lading which he believes to be inaccurate. If the bill of lading does contain inaccurate information, the Master should correct it with an appropriate clause before signing it.
In addition to the bill of lading, there are many other documents which record the quantity and condition of the cargo. The mate's receipt, cargo manifest, stowage plans, tallies, and draft surveys, as well as notebooks, correspondence, and reports are all of great evidential value. The carrier will rely on such documents to demonstrate the condition and quantity of the cargo at the time it was entrusted to him and defend any claim for loss or damage.
The carrier, having provided a seaworthy vessel which is fit to go to sea with her cargo on board and having received the cargo into his care, must perform the voyage dictated by the contract of carriage. Under the Rules, the carrier is obliged, in the absence of any agreement to the contrary, to carry the cargo directly to its destination (see Hague Rules, Article IV, rule 4).
Therefore, the route of the voyage is crucial to the proper fulfilment of the contract of carriage. Any unjustifiable deviation from the agreed, direct, or customary route will constitute a breach of the contract of carriage. A deviation is justifiable in only three situations.
Firstly, if there is a real or immediate danger, the carrier may deviate for the purpose of protecting and preserving the cargo. In certain circumstances, if the well being of the cargo so demands, it may be the carrier's duty to deviate.
Secondly, the carrier may deviate for the purpose of saving human life. However, he may not unnecessarily delay the vessel at the scene of a casualty.
Finally, the contract of carriage may permit a deviation from the contractual voyage if it contains a 1iberty to deviate' clause. It is not safe to rely on such clauses as they are interpreted in a most narrow and restrictive manner. The Rules, which will usually be incorporated into the contract of carriage, excuse deviations for the purpose of saving life and/or property, or for any other reasonable purpose. It is virtually impossible to define what is meant by reasonable. However, the question of whether a deviation is reasonable will be considered not only from the point of view of the carrier but from the point of view of the cargo owners as well.
The carder is also under an obligation to ensure that the vessel proceeds promptly to her destination. The duration of the voyage is crucial to the proper fulfilment of the contract of carriage, and any unnecessary delay will be treated in the same way as a deviation from the contractual voyage.
In the event the vessel deviates from the agreed, direct, or customary route, or in the event of delay in the prosecution of the voyage, the Master should notify owners immediately. In addition he should ensure that the precise and detailed reasons for the deviation or delay are fully and accurately recorded, and documents such as the log book, ship to shore communications, course recorders, and charts must be made available to owners.
The main objective of the Rules is to ensure that the cargo is delivered in like good order and condition which means that the condition of the cargo should not have deteriorated whilst it was in the care and custody of the carrier. However, the Rules recognise the possibility that, for reasons beyond the control of the carrier, he may fail to meet that obligation.
In such cases, the Rules may protect the carrier from liability for claims arising out of his failure to deliver the cargo 1n like good order and condition' (see Hague Rules, Article IV, rules 1‑2). However, before he can rely on these exceptions the carrier must fulfil] all of his obligations under the Rules. The carrier, in seeking to defend a claim for cargo loss or damage, must first demonstrate that he has exercised dub diligence to make the ship seaworthy and that he has properly kept and cared for the
cargo. If the carrier fails to show that he has fulfilled these obligations, he will not be able to rely on the exceptions.
The reader should note three important points relating to the Rules. Firstly, the exceptions will only come to the aid of the carrier if he has done everything possible to look after the cargo and prevent loss or damage occurring. Secondly, the scope of the exceptions are continually diminishing; the carrier is expected to learn not only from his own mistakes but also from those of other carders within the shipping community. Thirdly, as with the deviation provisions, the exceptions are interpreted in
a narrow and restrictive sense and the carrier can never rely on them confidently.
The obligations imposed on the carrier by the rules have been devised to keep loss and damage to a minimum. Thus, it is likely that where cargo loss and damage has arisen, the carder will be found to have been in breach of the Rules. That does not mean that the carrier will be found liable for every cargo claim brought against him.
However, the carder will be in a far better position to defend claims and to produce the evidence required to refute them if he has implemented, in the first instance, the very systems and procedures on board the vessel which minimise the risks of claims arising.
Evidence required from the vessel
In a claim for cargo loss or damage, the documents listed below should be assembled whenever possible and numbered in consecutive order. They should then be referred to in the Master's report which is discussed in the next section. It is recognised that in certain instances these documents will be more easily available from the ship‑owner's office, but if they are available on the vessel and attached to the report they will be of great assistance in limiting the amount of commentary which, has to be included in the report. The documents are as follows:
A convenient plan of the vessel which includes a description of the distribution of hatches and holds, the position of the vessel's equipment, the distribution of double bottom tanks, wing tanks and peak tanks and capacities;
Vessel's tonnage certificate;
Class certificates including recommendations, reservations, and conditions of class at the time of the loss or incident;
Reports of the Master or deck or engineer officers on regular inspection and maintenance of the vessel and her equipment;
Standing orders for regular inspection and maintenance of vessel prior to sailing;
Inspection, repair, and maintenance schedules;
Inspection, repair, and maintenance logs;
Repair and maintenance accounts;
Bills of lading;
Draft surveys with all accompanying calculations;
Letters of protest;
Deck log abstracts for the period of loaded voyage including loading and discharging operations and the period or voyage before loading if, during this time, heavy weather was encountered or hold cleaning was carried out;
Ventilation records if not included in the deck log;
Temperature records if not included in the deck log;
Bilge sounding records if not included in the deck log;
Engine logs for the same period;
Statement of facts at load and discharge port;
Time sheets at load and discharge port;
Notice of readiness at load and discharge port;
Tally sheets at load and discharge port;
Stowage plan (for each port if cargo loaded at several load ports);
Course recorder printout;
Working chart (with the original markings) if the course or incidents of the voyage were unusual;
Correspondence with charterers, shippers, agents, stevedores, supercargo, or any person or organisation involved in cargo handling operations;
Copies of all cables or radio messages received by the vessel, in particular, demonstrating the weather encountered, contact with other vessels, and Ocean Routeing (or similar) messages;
Photographs demonstrating the condition of the vessel, weather encountered, methods of loading and discharging of the cargo, and stowage of cargo ‑
These will greatly enhance owners' case in the event of disputes. In addition, a note should accompany the photographs identifying when they were taken, by whom, and what they purport to depict. The negatives should be carefully preserved;
There is an increasing possibility that vessels will carry video equipment, and these can and should be used to identify obvious deficiencies in loading or discharging techniques, methods of stowage, or heavy weather encountered;
Computer printouts ‑
If the vessel has on board a computer capable of doing stability, draft, and trim
calculations, the printouts or recorded disks should be preserved.
Although the Master's report should set out the information in the same order that it is listed below, the Master should ensure that he assembles the contemporaneous evidence first. The Master's Report should include the following information:‑
Details of the Master ‑
Home telephone number,
Age and date of birth,
Date of Master's certificate and where obtained,
Date of first seagoing experience,
Date when first assumed command of a vessel,
Date when first sailed on present vessel;
2. Details of the vessel ‑
Type of vessel, for example, Tween decker, bulk carder, obo, or other,
Gross registered tonnage,
Net registered tonnage,
Classification society status,
Number of holds, number of hatches, and type of hatch covers,
Layout of double bottom, ballast, and peak tanks (prepare diagram if
Engine model and type,
Position of bilge sounding pipes (prepare diagram if necessary),
Position of DBT sounding and overflow pipes (prepare diagram if
Note whether the vessel has any of the following navigational equipment:
‑ gyro/magnetic compass
‑ repeaters on wings
‑ radar (note the range and type of radar)
‑ satellite navigation equipment
‑ echo sounder
‑ course recorder
- radio equipment including VHF
‑ other equipment,
- Vessel's complement;
3. Details of preliminary voyage to load port ‑
Previous cargo carried,
Condition of holds prior to loading (if relevant, include the work done by crew to clean holds),
Whether or not the bilge pump suction ability was checked on passage or before loading,
Whether or not ballast tanks were pressed up on passage before loading;
4. Details of loading operation ‑
Name of load port,
Date(s) of arrival,
Name of loading berth(s),
Time(s) of berthing,
Name of owners' representative, if attending,
Name(s) of surveyor(s) if attending and the parties which they represent,
Cargo type or types,
Whether or not specific instructions were given as to the nature of cargo and method of loading and if
so by whom,
Method of loading (ship's equipment, shore equipment, grabs, elevator, or other);
5. Loading sequence ‑
Dates and times when cargo loaded,
Whether or not a tally was taken of the cargo and if so by whom (ship's agents, charterers' agents,
shippers' agents, or deck officer),
Problems involved in loading operations;
6. Details of lashing, stowage and trimming ‑
Whether or not specific instructions were given, and if so by whom,
Whether or not shore labour or equipment was used and if so which companies were involved,
Whether or not dunnage was used and if so by whom was it provided and what was its nature,
Who carried out trimming operations,
Who carried out lashing operations,
Describe the number and dimension of lashing wires used and points (if necessary prepare a
Details of draft survey (if any) before commencement and on completion of loading,
Whether or not the mate's receipt was claused,
Who issued the bills of lading and whether or not they were claused and consistent with the mate's
receipt (if not, why not),
Details of the closing of hatches, when were they closed, checked (and by whom) and whether or not
any problems were encountered;
7. Details of loaded voyage
(the following information should be included if it is not apparent from the deck log abstracts or deck
Date of sailing, destination, speed, and course intended,
Periods of heavy weather encountered including method of assessment of wind speed, for example,
wave observation or anemometer,
Changes in course or speed and reasons for the alterations,
Wave and sea state on Beaufort scale,
Damage suffered by deck fittings and equipment (if any),
Loss of deck fittings and equipment (if any),
Frequency of weather reports received and their accuracy,
Whether or not Ocean Routeing or similar service was used,
Whether or not the ship was in radio contact with other vessels and if so their names,
Ballast distribution on sailing and any changes made or occurring during voyage,
Whether or not hatches were opened and if so why and when,
Periods during which cargo was ventilated and in which holds,
Whether or not readings listed below were taken and if so with what frequency:
‑ cargo temperatures
‑ bilge soundings
‑ seawater temperatures
‑ air temperatures;
8. Details of discharging operation ‑
Name of and time of arrival at discharge port,
Draft survey on arrival,
Name and time of berthing at discharge berth,
Name of attending surveyor,
Name of attending supercargo,
Name of ship's agent,
Whether or not specific instructions were given regarding method of discharge and if so by whom,
Type of equipment used and whether it was ship's equipment or shore equipment,
Dates and times when cargo discharged,
Whether or not a tally of the cargo was taken and if so by whom (ship's agents, charterers' agents,
shippers' agents, or deck officer)
Whether or not particular problems were encountered during the discharging operation,
Whether or not shore labour was involved and if so what company;
9. Details of loss, shortage, or damage ‑
When was the first report of loss, shortage, or damage made and by whom,
Did a joint inspection take place and if so name parties involved, their representatives and note the date of the inspection,
Where was cargo discharged and stored,
Whether or not any attempt was made to segregate damaged cargo from good cargo and if so
‑ how was this done,
‑ was the method used agreed by the ship and if not was a protest made,
‑ what is an estimate of the period of delay to the vessel whilst the cargo was being segregated,
‑ was cargo abandoned on deck and if so how much approximately,
Weather conditions encountered during discharge,
If damage arose as a result of insufficiency of packing, how was the packing deficient and did the equipment used by the stevedores, type of dunnage used, method of stowing or lashing, or general handling of the cargo contribute to the damage.
The subject vessel was a bulk carrier of about 70,OOODWT which
was operating under a time charter for one trip from the West coast of the
During the initial stages of the voyage, the vessel encountered severe weather conditions as a result of which there was an ingress of water through the hatch covers which seriously damaged the cargo. Further damage was caused at the discharge port when sound and wet cargo were mixed. A total of nearly 800OMT of cargo was affected, and a claim in excess of one and a half million US dollars was
brought against the vessel.
The charterers, who were primarily liable for the damage, claimed an indemnity from the owners, and the dispute was submitted to arbitration. The owners sought to rely on the Hague Rules perils of the sea defence, however, the charterers alleged that the owners had failed to exercise due diligence to make the patent hatch covers seaworthy.
The arbitrators held that if the owners had exercised due diligence to make the vessel seaworthy they could successfully rely on the perils of the sea defence because the vessel had encountered severe weather even though the weather was not entirely unexpected or unusual. The arbitrators stated that if this was not correct the defence would never apply to areas like the North Atlantic or North Pacific where severe weather is often encountered in the winter.
Perils of the Sea
In support of their arguments that the weather encountered by the vessel had been severe the owners submitted the vessel's log books as well as a video taken by the Master during the voyage. The log book entries showed that from an early stage in the voyage, the vessel encountered winds of force 6 to 7 from the South East with accompanying rough seas, increasing in strength over the following two days to force 8. The vessel then encountered force 9 winds from the West South West with heavy seas causing the vessel to pitch and roll and ship seas. In the next two days the worst weather was recorded with westerly winds of force 9 to 11 and huge waves. At this stage the vessel had to heave to for about 24 hours and eventually headed south to get away from the violent weather. During this period the vessel suffered damage and well secured drums of lubricant at the stern were carried away. The winds slowly abated to below force 7 during the following two to three day period.
The evidence contained in the log books was supported by a twenty minute video film taken by the Master during the voyage. The arbitrators found that the film did not demonstrate that the weather had been as ferocious as recorded in the log book but conceded that it was not possible to film during the worst of the weather and that the film would not show the full magnitude of the high seas and swell. The arbitrators were also impressed by the oral evidence from the Master of the vessel who they
found an honest and reliable Witness, corroborating evidence from another Vessel in the area during the same time as the subject vessel, the extent of damage suffered by the vessel and the carrying away of the drums of lubricant.
Before the owners could invoke the perils of the sea defence they had to demonstrate that they had exercised due diligence to make the vessel seaworthy before the voyage commenced. The owners submitted evidence of the maintenance of the vessel prior to the voyage as well as contemporaneous evidence demonstrating the condition of the hatch covers.
The vessel had been in dry‑dock one month prior to the voyage and had undergone general repairs including repairs to the hatch coamings. At this time hatchways and closing appliances were inspected by class surveyors and were found to be in good condition. A letter from the classification society stated that hose testing of the hatch covers was carded out with satisfactory results and that the surveyor was satisfied with the water tightness of the hatch covers. The Master had stated during his
testimony before the arbitrators that the surveyor had not only watched the hose testing on the hatch covers, but also went down into each hatch after the test in order to ensure that there were no leakages. A ballast voyage was then undertaken between the dry‑dock port and the first load port on the chartered voyage.
The owners also submitted contemporaneous evidence. The reports of three independent surveyors, who examined the hatch covers at the discharge port, confirmed their good order and condition. In addition, the surveyors' reports showed that there was salt water damage to all the hatches. If there had been salt water damage to only some of the hatches, the arbitrators may have drawn adverse
inferences about the seaworthiness of these hatches. Finally, the video film taken by the Master demonstrated that the vessel on the whole looked well maintained and the hatch covers, in particular, appeared to be in good condition.
The Arbitrators' Conclusions
The arbitrators found that the evidence suggested that the owners had exercised due diligence to make the vessel seaworthy before the vessel sailed from the first load port. They also commented that they had no reason to believe that the hatch covers were not properly secured on the completion of loading.
The arbitrators further stated that in certain circumstances well maintained hatch covers will flex in periods of severe weather and permit the ingress of sea water.
Therefore, provided owners had exercised due diligence to make the vessel seaworthy, they could avoid liability by relying on the perils of the sea defence.
Although it is very difficult to rely on a heavy weather defence, the arbitrators in the present case were impressed by the well kept log book and the video film.
Although not every vessel will have a video camera on board, a series of still photographs could also be of great evidential value in demonstrating bad weather and the condition of the vessel.
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