Cargo Claims for Goods Carried by Sea In Malaysia
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What is the source of law for cargo claims for goods carried by sea in Malaysia?
In Malaysia, cargo claims by sea are governed by the contract provided by a Bill of Lading subject to the Hague and Hague-Visby Rules. Apart from this, they are also governed by way of bailment, negligence, and conversion. A claim under negligence is subject to the contractual nexus between the parties whereas a utility of bailment arises when there is no such nexus between the parties. In addition to these, an action for the benefit of third parties is also allowed.
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What are the types of contracts available to parties involved in sea cargo carriage?
The most common type of contracts for carriage of cargo by sea are direct contracts between the carrier and the consignor; statutory contracts provided for by the UK Bills of Lading Act 1855 and UK Carriage of Goods By Sea Act 1992; Agency contracts and implied contracts.
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Which party acts as carriers?
Carriers are parties that transport goods for a fee. This can usually include the ship owners. The carriers are usually spelled out in the bills of lading.
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What is a bailment claim?
A bailment claim is usually known as a sui generis claim which means a one-of-a-kind claim. These claims are subject to the provisions within the Contracts Act 1950 and the Evidence Act of 1950. In bailment, a bailee has to deliver the goods taken from the bailor to the consignee. He will be liable should the consignment be damaged during the voyage.
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What is the nature of a negligence cargo claim?
A negligence action for cargo claim is reliant on satisfying the neighborhood principle introduced by the case of Donoghue v Stevenson. This principle relates to the close nexus between the tortfeasor and the claimant. The claimant to ensure success in this claim must show proprietary or possessory rights at the time of initial damage to the goods.
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What is the nature of a claim for conversion?
A claim for conversion will involve a misdelivery of the goods. Misdelivery can take place when the possessory rights of a person are jeopardised. The classic example of misdelivery is the delivery without presentation of the bill of lading.
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What is an action for the benefit of a third party?
This action is usually brought by the shipper when the consignee is unknown or the consignee has not received the bill of lading to claim the goods from the carrier or the shipper at the port of destination. Apart from this, a carrier can limit claims against stevedores and contractors providing a service to the ship or itself by the introduction of a special Himalaya clause or terms similar in nature. Also, there are anti-suit injunctions or stay that act to stop a party from starting or commencing an action against the same party in a different jurisdiction.
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What are the different considerations to be taken into account to bring or defend against a cargo claim?
Some of the types of considerations to be looked at in successfully bringing or defending against cargo claims, amongst others, are claused bills of lading or clean bills of lading. Here the party is to look into the number of goods, unknown weight, contents that are unknown or said to contain clauses. Apart from this, a party also needs to look at the shipped bill of lading or received shipment bill of lading; clean shipped on board bill of lading, or a shipper’s indemnity (whichever that is applicable). Finally, the party also needs to look at the evidentiary value of the contents of the bill of lading to ensure the presumptions from the Hague and Hague-Visby Rules are followed and the common law estoppel applies where parties are unreasonable
This article is written by our Principal Associate, Chakaravarthi
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