Maritime Law – Cargo Claims
In accordance with the regulations between articles 1178 and 1207 of TCC, the marine cargo claims are regulated which bear resemblance to the articles/regulations of the International Convention for the Unification of Certain Rules of Law relating to Bills of Lading (Hague Rules) which was signed in Brussels on August, 25th 1924 and was amended by the Brussels Protocol 1968 (Hague-Visby Rules) and the Brussels Protocol 1979 (SDR Protocol). Moreover, the articles of TCC also bear resemblance to the articles/regulations Hamburg Rules dated 1978.
Pursuant to art. 1238 of TCC, the carrier is defined as the party who signs the bill of lading as the carrier or the party for and on behalf of who the bill of lading is signed. Moreover, in line with art. 1230 of TCC, the party who is entitled to claim the delivery of the cargo is the lawful holder of the bill of lading. The liability of the carrier has been regulated under the TCC in line with both the Hague-Visby Rules and the Hamburg Rules 1978.
In line with art. 1237 of TCC, the bill of lading is taken into consideration while determining the relationship between the carrier and the lawful holder of the bill of lading. Moreover, the affreightment agreement is taken into account while determining the relationship between the carrier and the shipper.
In case that the carrier knows or suspects that the declarations of the shipper in relation to the cargo are inaccurate or if such declarations of the shipper cannot be controlled, in line with art. 1239 of TCC, the carrier is obliged to insert a remark to the bill of lading and indicate the related explanations for inserting such remark. Otherwise, if the carrier does not insert any remark to the bill of lading, it may be deemed as a presumption that the cargo loaded in good condition.
The carrier is liable for damages resulting from the loss of or damage to the goods, as well as from delay in delivery, provided that the loss or damage or delay had been occurred during the period which the carrier was in charge of the goods. Delay in delivery occurs when the goods have not been delivered at the port of discharge provided for in the contract of carriage by sea within the time expressly agreed upon or, in the absence of such agreement, within time which it would be reasonable to require of a diligent carrier, having regard to the circumstances of the case. The person entitled to make a claim for the loss of goods may treat the goods as lost, if they have not been delivered within 60 consecutive days following the expiry of the time for delivery.
Any claim for damages occurred as a result of the loss or damage of the goods or delay in delivery will be time-barred, if judicial proceedings will not be instituted within a period of 1 year. The time-bar period commences on the day on which the carrier has delivered the goods or part of thereof or, in cases where no goods have been delivered, on the last day on which the goods should have been delivered.
A recourse action for indemnity of a person held liable may be instituted even after the expiration of the time-bar period. However, the time allowed should not be more than 90 days commencing from the day when the person instituting such recourse action has settled/indemnified the claim and/or has been served with the claim petition. This period of 90 days may be extended within an agreement to be concluded between the parties after the occurrence of the cause of the claim.
In line with the Hague-Visby Rules 1968 and the SDR Protocol 1979, the limitation of the liability of the carrier has been regulated. In any event, the carrier shall not be liable for any loss or damage to or in connection with the goods in an amount exceeding the equivalent of SDR 666.67 per package or unit or 2 SDR per kilogramme of gross weight of the goods lost or damaged, whichever is the higher. In any event, the liability of the carrier for delay in delivery is limited to an amount equivalent to two and a half times the freight payable for the goods delayed, but not exceeding the total freight payable under the contract of affreightment. The carrier shall not be entitled to apply the above-mentioned limits of liability, if it is proved that the damage of or loss to cargo or delay in delivery resulted from an act or omission done with the intent or recklessly and with knowledge that damage would probably result.
The charterer and the shipper are obliged to provide a complete and accurate description of the cargo to the carrier as per art. 1145 of TCC. Should they fail to do so, they will be liable against the carrier for the losses arisen in relation to them misinforming the carrier. The charterer and shipper will also be liable against the carrier, if they load such goods that are subject to international sanctions or goods that are deemed dangerous to be carried on a vessel, even if they cannot be deemed negligent to do so.