A COMPARATIVE ANALYSIS OF THE CARRIER’S LIABILITY IN CARRIAGES

OF GOODS BY SEA: THE ENGLISH AND INDIAN PERSPECTIVE IN MARITIME

LAW.

By

Krity Lohar

Student number - 500407051

A Dissertation Submitted in Partial Fulfilment of the Requirements for the degree of

Masters of Laws (LLM)

Supervised by Dr Zhen Jing

Bangor University

School of Law

2016
 DECLARATION

This work has not previously been accepted in substance for any degree and is not being

concurrently submitted in candidature for any degree.

Signed ………………………………………….. (Candidate)

Date ……………………………………………..

STATEMENT 1

This thesis is the result of my own investigations, except where otherwise stated. Where

correction services have been used, the extent and nature of the correction is clearly marked

in a footnote(s).

Other sources are acknowledged by footnotes giving explicit references. A bibliography is

appended.

Signed …………………………………………. (Candidate)

Date …………………………………………….

ii  
 
STATEMENT 2

I hereby give consent for my thesis, if accepted, to be available for photocopying and for

inter-library loan, and for the title and summary to be made available to outside organisations.

Signed …………………………………………. (Candidate)

Date …………………………………………….

iii  
 
 ABSTRACT

For International Trade to flourish there must be an involvement in transaction of goods by

sea between a buyer in one country and seller in another. As shipping has always been the

oldest mode of transport and it highly benefits the International Trade by the Laws of

Shipping. The carrier plays a significant role in this contract and it is necessary to understand

its involvement in the contract in regards to his obligations and immunities. Also, this

research shall study the present rules governing the carriages of goods by sea namely The

Hague Rules, the Hague-Visby Rules, the Hamburg Rules, and the Rotterdam Rules.

Comparing it to the obligation and immunity of the carrier under the Indian Carriages of

Good by Sea Act. It shall also study about the liabilities imposed to the carrier in terms of

limitations, exceptions duties, and burden of proof.

As India continues to adopt The Hague Rules, which has serious defects however,

modifications have been made under the Indian carriages of goods by sea. This research shall

correspondingly raise questions such as; do the current laws in India provide sufficient

provisions to protect the rights of the cargo owners? What differences does it have in its

provisions that deal with the carrier and the customers’ rights? If the International

Conventions are ratified by India, is there any expected changes for the improvement of the

rules that governs the carrier’s obligations and what practicable rules should be provided for

India’s maritime law to reflect itself to the international standards. In addition, this study will

compare the English Law with respect to all the questions raised above, under the contract

that governs the carrier’s liability under the carriers of goods by sea in order to overcome the

shortcoming of its predecessor. Further, this paper will put forward some suggestions and

recommendations as part of its conclusion.

4  
 
 ACKNOWLEDGEMENT

As individuals, we have insufficient resources to accomplish all our plans and desires.

Therefore, we must depend on others who with their assistance brings out the best in us. I

wholeheartedly acknowledge everyone who has contributed to making my Masters of Laws

(LLM) a success. First, I reverence the Almighty God who has blessed my parents {Mr

Tamal Lohar & Rupa Singh} to make my master’s degree a reality. I love you so much and

your labour of love over my life will not go in vein.

I also extend special gratitude to my supervisor, Dr Zhen Jing. I have been amazingly

fortunate to have an advisor who gave me the freedom to explore on my own, and at the same

time the guidance to recover when my steps faltered. Her patience and support helped me

over come many crisis situations and finish this dissertation. I hope that one day I would

become as good an adviser to my students as Dr Zhen has been to me.

I must also mention my ever supportive sibling – Rajni Lohar, Rahul Lohar and Sundeep

Meena Ramudamu I say thank you for always encouraging your baby sister in her

endeavours. And Miraj Doshi thank you for your love, care and support. I also acknowledge

my special friends –Jusmita Borgohain, Somoye Motolani, Alleena Akhtar, Madiha Zaheer

,Isha Singh and Aastha Vashishth thank you for your patience in proof reading my work. God

bless you all.

5  
 
 Table of Contents

ABSTRACT   4  
ACKNOWLEDGEMENT   5  

CHAPTER ONE: INTRODUCTION   8  

1.1 Aim of Project   9  

1.2 Research Methodology   10  

1.3 Research Questions   11  

1.4 Literature Review   11  

1.5 Outline of Chapters   16  

CHAPTER TWO: THE HISTORY OF CARRIER’S LIABILITY   19  

2.1 Roman Empire to the Common Law   19  

2.2 The History of Principle in English Law   21  

2.3 The Unification of Certain Rules Relating To the Bill Of Lading   23  

2.4 History of Carriages of Goods by Sea in India   25  

2.5 Definitions of the Carrier under Various International Conventions

and Carriages of Goods by Sea   27  

2.6 Who Is A Carrier?   28  

2.7 Person Entitled To As Carriers   28  

2.7.1 Ship-Owner as a Carrier   28  

2.7.2 Charterer as a Carrier   29  

2.7.3 Sub-Charterer as the Carrier   29  

2.7.4 Person Entitled As Carrier under the Indian Law   29  

CHAPTER THREE: THE OBLIGATION OF THE CARRIER   31  

3. The Basis of the Carrier’s Liability   31  

3.1 The Obligation of Carriers under the Common Law and Other International
Conventions   32  

3.1.1 Obligations of the Carrier under the Common Law   32  

3.1.2 Obligations of the Carrier under The Hague Rules   35  

3.1.3 Obligations for due diligence to provide a seaworthy vessel and care of
cargo   37  

3.1.4 Comparison of carrier’s obligation under the Common Law, Hague-Visby

6  
 
 Rules and Indian Carriages of Goods by Sea   39

3.1.5 Obligations to issue Bill of Lading   40  

CHAPTER FOUR RIGHTS AND IMMUNITIES OF THE CARRIER   44  

4.1 Exemptions under The Hague- Visby Rules and Indian Carriages of Goods by
Sea Act, 1925   44  

4.2 Allocation of Burden of proof   48  

4.3 Deviation   51  

4.4 Exemptions under the Rotterdam Rules   52  

4.5 New provisions under Rotterdam Rules   53  

4.6 The Multi Modal Transportation of Goods 1993   54  

CHAPTER FIVE: CONCLUSIONS AND RECOMMENDATION   55  

BIBLIOGRAPGHY   59  
 

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 CHAPTER ONE

INTRODUCTION

Delivery of goods is the most significant obligation of carriers and is one of the core issues

about Carriages of Goods by Sea. The carriers’ obligations under the contract are to discharge

‘after the delivery of goods is complete. Although delivery of goods is one of the most

important aspects of international Carriages of Goods by Sea, some provisions have

deficiencies according to the international conventions, regarding the Carriages’ of Goods by

Sea before the ratification of the Rotterdam Rules. Such as, The Hague Rules which is also

known as The Hague-Visby Rules and the Hamburg Rules.1 The fundamental differences in

these Rules are seen in article 3(6) of The Hague Rules and The Hague-Visby Rules.2

Furthermore, the provisions about the notice of loss, damage or delay of goods are seen under

The Hamburg Rules.3

As shipping is one of the most focused practices in today’s world, it needs to have more

certainties in the provisions and the Rules that govern Shipping Law. Contradictory to the

major maritime countries,4 India is still governed by the Bill of Lading Act5, Carriages of

Goods by Sea Act6 and the Multimodal Transportation of Goods Act 7

that contains the

                                                                                                                       
2
Unless notice of loss or damage and the general nature of such loss or damage be given in writing to the carrier
or his agent at the port of discharge before or at the time of the removal of the goods into the custody of the
person entitled to delivery thereof under the contract of carriage, or, if the loss or damage be not apparent,
within three days, such removal shall be prima facie evidence of the delivery by the carrier of the goods as
described in the Bill of Lading…
3
Article 19 of Hamburg Rules 1978.
4
Like Greece, The United Kingdom, the United States of America, China, Germany etc..
5
The Bill of Lading act 1885.
6
The Carriages of Goods by Sea Act 1925.
7
The Multimodal Transportation of Goods Act 1993.

8  
 
general statutes such as Contract Law etc. The Constitution of India as it is the supreme law,

also functions with the Common Law Rules and incorporates the Hague Rules.8

Thus, through comparison of the English Legal Regimes that are considered applicable for

the contract to be governed by Carriages of Goods by Sea, it is certain that there will be

beneficial consequences for the carrier’s liability in the Indian law by looking into the

international Rules and allowing laws to be perceived through better understanding and

improved clarity.

1.1 Aim of the Project

The purpose of this Master thesis is to examine in complex details, the similarities and

differences by analysing the reciprocity of the carrier’s duties and liabilities under Carriage of

Goods by Sea and the Rules that relate to it under the English and Indian Carriages of Goods

by Sea Act, 9 which shall identify the imbalance between the liabilities and provisions of law

that is lacking, thereby working out better solutions to the problems and proper Rules

consistent with the nature of the principle of carriers liability.

The various regimes of maritime law, the concepts and practices are adopted from Common

Law Rules and International Conventions to which India has opted in and out. After these

Rules were adopted, there have been some cases and practices to which the Indian courts

have had opportunities to consider, and subsequently have become common practices in

India.

There are insufficient approaches towards the international convention that entails and

discusses the carrier’s liability in the Indian Law, despite India being a major maritime

country where exports play one of the most crucial roles in developing the Indian economy,

excluding tourism, services, and agricultural industries. In fact, fifty percent of India’s gross
                                                                                                                       
8
The Hague Rules 1924.
9
Indian Carriages of Goods by Sea Act 1925.

9  
 
domestic product, of which more than fifty million workers are employed, are obtained from

exports.

Therefore, to achieve this purpose, a comparative study between the English and the Indian

Law is imperative especially as the Carriages of Goods by Sea Act 1925 (India) was drafted

in line with the English Carriages of Goods Act 1971. Also, it was repealed by the Bill of

Lading Act 1855 (U.K.) and can be deemed as outdated and due for reform. Hence, the need

to adopt the carrier’s liability under the English law is a recommendation that is engrafted to

the Indian jurisdiction by firming up its liability regime as the international convention for the

Maritime Law when compared with the English Law as they have adopted all the three

conventions and by all means was beneficial to them. Thus, by looking into the laws and

Rules that governs the English Carriages of Goods by Sea, it shall propose a suggestion to

reform the laws for the carrier’s liability for its development in India.

Above all, this work is boarded upon to postulate argument that the principle liability of the

carrier is imbalanced between the ratification of the international conventions, which is hoped

to provide a remedy. Hence, optional solutions are recommended with further research

options and possible future law reforms.

1.2 Research Methodology

The collected work was attained by searching the major electronic databases covering

academic literature in law, and checking references of critical articles, legislations, law

reports, cases and textbooks. The databases that were used are: West Law, Lexis Nexis, Hein

online, IALS Website, Lexology and the library search engine (1992-2015). Furthermore,

Hardcopies of related works of Literatures in the Libraries of Bangor University and The

Institute of Advanced Legal Studies London Libraries were consulted. The research

methodology is based on the traditional legal research method (Doctrinal and the

10  
 
Comparative legal research methods) where contents of the different jurisdictions (UK and

India) laws on carrier’s liability were examined and compared. A comparative approach was

adopted thereby scrutinizing and analyzing applicable Rules on liability particularly the

ratification of the international conventions. Additionally, the literature survey of Primary

and Secondary Sources, Case Laws, Acts, Legislation and Commissions reports, were

consulted using the online resources of the Bangor University Library.

1.3 Research Questions

1) What are the aims and objectives of the international conventions for the carrier liability

in the Carriages of Goods by the Sea Act?

2) What obligations should be imposed on the carriers regarding limitations, exceptions du-

ties, burden of proof and Bill of Lading that will benefit the Indian Carriages of Goods by

Sea Act 1925?

3) What suggestions can be given regarding the provisions dealing with both the carrier and

the customer for improvement of rights offered, by looking into the international conven-

tions for Carriages of Goods by Sea Act 1925?

4) Do the current laws of India provide sufficient provisions to protect the rights of the car-

go owners?

5) If India ratifies the international conventions, is there an expected change for the im-

provement of the Rules that governs the carrier’s obligation?

6) What practicable Rules should be provided for India’s maritime laws to reflect itself to

the international standards?

1.4 Literature Review

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The contracts of Carriages of Goods by Sea are defined as ‘any contract whereby the carrier

undertakes against payment of freight to carry goods by Sea …’.10 Therefore, any legal

liability that is incorporated in any legal status is usually found with a clutch of provisions

with integral elements that undertake the matters like definition of duties, title to use, notice

of loss, burden of proof, rights of limitation, compensatory loss. In general, liability is a a

logical component that is substantial than the elements and exposes an analogy that promotes

enactment.11 The method of The Carriers liability is one of the most focused regimes in

international maritime convention. It determines the provisions of the risk and balances the

rights and obligations concerning the carrier’s and the cargo interest, specifying the extent of

liability of the carriers for the losses suffered economically, that resulted from damages of

goods or delays of goods when the goods were in the carriers confinement.12 The carrier’s

liability is discussed mostly in the three international conventions and has been amended,

ratified and enforced by the majority of the maritime countries. The Carriages of Goods is

also seen as one of the most significant legs of transportation in today’s world and an urgent

reform is needed for countries that are lagging these laws.13 This may be because of the

constructiveness and relative economics of maritime transport that significantly affects

international trades and generates new trends that trend in with the international trade flow.14

Furthermore, there are obligations under the contract of Carriages of Goods by Sea which

state that discharged by parties with respect to the receipt, loading handling stowage,

                                                                                                                       
10
 The  responsibility  of  the  carrier  under  Art  1(6)  of  Hamburg  Rules  is  from  port  to  port,  Art  1(b)  of  Hague-­‐
Visby-­‐Rules  is  tackle  to  tackle,  Art1(1)  of  the  Rotterdam    Rules  is  from  door  to  door  and    the  application  of  
rules  in  the  Indian  COGSA  is  also  set  out  rules  In  the  schedule  [hereinafter  referred  to  as  ‘the  rules’]  shall  have  
effect  in  relation  to  and  in  connection  with  carriages  of  goods  by  sea  in  ship  carrying  goods  from  any  port  in  
India  to  any  other  port  whether  in  or  outside  India.  
11
 D  Rhidian  Thomas,  ‘an  analysis  of  the  liability  regime  of  carriers  and  maritime  performing  parties’  
(witney:law  text)  2009  52.  
12
Thor Falkanager,Hans Jacob bull, Lasse brautaset, ‘scandinavian Maritime law:the Norwegian perspective’
(3rd ed universitiesforlaget) 2011, 277.
13
https://www.academia.edu/5376034/ANALYSE_OBLIGATIONS_AND_LIABILITY_OF_THE_CARRIER_
UNDER_THE_ROTTERDAM_RULES_WITH_COMPARISON_BETWEEN_VISBY_PROTOCOL_AND_H
AMBURG_RULES.
14
http://web.mit.edu/harishm/www/papers/13bsmthesis.pdf.<accessed 8th April 2016.

12  
 
carriage, care, unloading or delivery of the goods, and who acts directly and indirectly, under

the carriers’ supervision of request or control.15 Similarly, when a contract is breached

liabilities can be incurred, as completing the delivery of goods by the parties is the initial

contract of every relationship under Carriages of Goods by Sea.

The ship owner imposed a one sided contract in the 19th century on terms of cargo interests

which caused disputes between them. The Common Law practiced freedom of contract;

therefore, the carriers have different contracts drafted to suit their purpose and damages of the

shipper. The reasonable effect of this practice was to disburden the Ship-owners from liability

as the carrier and lessen the situation of the baliees irresponsibility.16 The basics of every

contract that is under the Carriages of Goods by Sea has an implied obligation towards the

carrier to provide a Seaworthy ship that is ‘fit to meet and undergo to the perils of the sea and

other incidental risks to which the necessity she must be exposed in the course of a voyage’.17

The nature of the obligation is to provide a Seaworthy Vessel, which is mandatory under the

Common Law and no matter what the fault may be he would then be liable for events of a

breach as they have responsibility for their vessels, and this equates to representing their ship

to be fit for sailing. He must also provide one reasonable vessel that has no standard

requirements of being accident free. It is needed to have suitable equipment that is practically

intended for the use and that the prudent owner must have acknowledged all the required

conceivable situations that could occur on the journey. However, this can vary from the type

of cargo being carried.18 When looking at the case of Nelson Line v Nelson19 a clause was

present where it exempted the liability of the Ship-owners and was held that if a cargo was

                                                                                                                       
15
Ibid (n 2) para 1.2.2.
16
Crook v. Allen (1879) 5 QBD, pp-40.
17
Kopitoff v Wilson (1876) 1 QBD 377 at p.380.
18
Wuthichai chongcharoenrugrot,’the Common Law, the Hague-Visby Rules, and Thai carriage of goods by
Sea Act regarding carriers obligation and liability: a comparative study’ <
http://lup.lub.lu.se/luur/download?func=downloadFile&recordOId=1668463&fileOId=1668471 > (2010)
accessed 1st April 2016.
19
Nelson Line v Nelson (1908) Ac 16.

13  
 
damaged due to seaworthiness it shall not be operative in excluding liability, if the ship-

owner is liable of any ‘damage of good which is capable of being covered by insurance’.20

Nevertheless, it still needs to be clear and unambiguous for it to be drafted as a clause. There

are also some difficulties that arise out from the Bill of Lading where it exempts the carrier

from several liabilities and consequently there is a need for international commercial Rules.

Taking this into consideration, the International Commercial Rules is a basic of International

Maritime Convention,21 and this was where the regulation to regulate the provision of balance

and risk of responsibilities between the carrier and cargo interest was introduced.

Respectively, this determines the amount of carrier’s extent for liability for the economic loss

that results from the loss of damages of goods or delay of goods from when the goods were in

the custody of the carrier.22 Additionally, it is essential to note that under the Hamburg Rules,

the contract of carriage must be by Sea and between two different states. The Rule applies to

both imports and exports and from a contracting state. By the same token, the responsibility

of the carrier covers the period during which he is in charge of the goods at the port of

loading and the port of discharge.23 The carrier is also liable for any contract of Carriages of

Goods by Sea when the regime is unified in the Bill of Lading or another document that has

the evidence for the negligence of his employees for navigation and management.24

Conflicting this with The Hague-Visby Rules, the period since the goods are loaded until the

time they are discharged from the ship like from tackle to tackle it is covered by the Carriages

of Goods Sea Act.25 The effect of this is that the carrier is exonerated from liability for any

loss or damage caused before the goods are loaded or after they have been discharged.

                                                                                                                       
20
1 Ingram v Services Maritime (1914) 1 KB 541; The Rossetti (1972) 2 Lloyd’s Rep 116.
21
The international conventions are The Hague –Visby Rules 1968, The Hamburg Rules 1978, The Rotterdam
Rules 2008, with The Indian Carriages of Goods by Sea Act 1925.
22
Thor Falkanager & others, Scandinavian Maritime Law: The Norwegian perspective,
(3rdednuniversitetsforlaget 2010)277.
23
Art 4(1) of Hamburg Rules 1978.
24
Art 2(1) (e) Hamburg Rules 1978.    
25
Article 1 (e) Hague-Visby Rules 1968.

14  
 
Therefore, must exercise due diligence in providing a Seaworthy Vessel. 26 In relation to this,

the supreme court judgment on (The NDS Provider) where it was held that the container

provided must be cargo worthy27 it was well explained that the However the English courts

are not too rigid to the construction of Art 1 (e) of the Hague-Visby Rules.28 Furthermore, the

identity of the carrier is made evident by of the Bill of Lading and other relevant documents.

Although the scope of the Hamburg Rules is broader than the Hague-Visby Rules and it

offers more protection to cargo- owners.

The Rotterdam Rules were introduced in order to bring uniformity of law in the field of

maritime carriage thereby replacing both the Hamburg and Hague-Visby Rules. An observer

noted that the rules served as a balance between traditional, modernity Common Law and

continental systems.29 These rules apply to both inward and outward voyages thus extending

the scope of its application.30 The period of responsibility of the carrier starts upon receipt of

goods for carriage and terminates at delivery of the goods.31 In other words, it is a ‘door to

door’ contract of carriage of which the basis of liability is a fault.32 Scholars have suggested

that delivery of goods is considered as a major part of international carriage of goods by Sea.

Yet, there is a lack of provisions regarding delivery of goods in the existing International

Conventions as to Carriage of Goods by Sea before the Rotterdam Rules, such as the Hague

Rules, The Hague-Visby Rules and the Hamburg Rules. Additionally, the consequence is

very difficult for shipping practice and justice to be guided by those Rules and there are many

uncertainties, which should be resolved by an up-to-date convention on the International

                                                                                                                       
26
Article 3 (1) Hague-Visby Rules 1968.
27
Article 3(1) (c) Hague-Visby Rules where the carrier has to exercise due diligence for the cargo worthiness of
such containers.
28
See Pyrene co Ltd v Scindia Navigation.
29
Philippe Delebecque, The New Convention on International Contract of Carriage of Goods Wholly or Partly
by Sea: A Civil Law Perspective, Comite Maritime International Yearbook 2007-2008, Athens I, Documents of
the Conference, 264.
30
Article 6 of Rotterdam Rules 1978.
31
Article12 of Rotterdam Rules 1978.
32
Article 17 of Rotterdam Rules 1978.

15  
 
Carriage of Goods by Sea. Another ground of criticism is the ground of allocation of the

burden of proof in reliance to Art 17 of The Rotterdam Rules.

Conversely, in the 21st century India retains one of the largest fleets in the world and is in a

position to make a substantial difference to the world’s trade that has not ratified the

International Convention, but if it were to be ratified, it would have undoubtedly benefited

the country in numerous ways. The Indian Carriage of Goods by Sea Act 1925,33 incorporates

the Hague Rules and codifies the general Rules concerning the Carriage of Goods by Sea

from any port in India to any other port in India or outside India.34 The Uniform Rules

relating to the Bill of Lading.35 In effect, Carriage of Goods by Sea Act, 1925 applies to

goods carried by national coastal vessels within the country and exported goods transported

by foreign going vessels. It demonstrates the importance of the Rules of Carriage of Goods

by Sea, such as the Rotterdam Rules, which require an engrossed attention to reflect

international standards. Also taking into consideration and understanding that the convention

is based on carrier’s liability the basic element of the regime of the liability is also allocated

with the burden of proof.36 This work shall generalise all the conventions and focus on the

schemes that have advanced the carrier’s liability.

1.5 Outline of Chapters

The study comprises of the following five chapters.

                                                                                                                       
33
It came into effect from 1st January 1926 and amended in 1993 due to Multi Modal Transportation of Goods
Act.
34
This conference in Brussels gave birth to The Hague Rules of 1924. It contains the uniform Rules relating to
Bills of Lading. These Rules were given statutory effect in the shape of Carriage of Goods by Sea Act, 1924 in
United Kingdom. Also the Indian Shipping Statistics reveal that during 2010-2011 the total over seas cargo
handled at Indian Ports was 732.28 million tonnes.
35
This conference in Brussels gave birth to The Hague Rules of 1924. It contains the uniform Rules relating to
Bills of Lading. These Rules were given statutory effect in the shape of Carriage of Goods by Sea Act, 1924 in
United Kingdom. Also the Indian Shipping Statistics reveal that during 2010-2011 the total overseas cargo
handled at Indian Ports was 732.28 million tonnes.
36
Si yuzhou, ‘the new structure of the bases of the carrier’s liabiliity under the Rotterdam Rules’ (2009)14(4)
Unif.L.Rev 931.

16  
 
Chapter 1 is an overview of the research that also provides an introductory overview of the

subject matter. It also outlines the aim, methodology, and research questions, which is crucial

for laying a foundation for the research, as it is intended.

Chapter 2 will discuss the historical background and the development as well as defining

what is meant by the carrier and the carrier’s liability in the Carriages of Goods by Sea Act,

as a result of this comparing and contrasting the legal system of the English and Indian

jurisdiction. It will also analyse the different approaches of case-laws in ascertaining the

ratification of the international conventions and what suggestions can be given to the Indian

law for improvement by looking into English law for Carriages of Goods by Sea Act

regarding the provisions that deal with both the carrier and the customer.

Chapter 3 analyses what liabilities should be offered to the carriers in agreement with

exceptions duties, burden of proof and Bill of Lading that will benefit the Indian Carriages of

Goods by Sea Act and if India ratifies the International Conventions, is there an expected

change for the improvement of the Rules that governs the Act. Concerning the provisions that

deal with both the carrier and the customer and whether the current laws of India provide

sufficient provisions to protect the rights of the cargo owner.

Chapter 4 will discuss the exemptions for the carrier liability by looking into the International

Convention and the English law that provides alternative remedies which would proper the

Rules by other Carriage of Goods Act, such as the suggestions that are recommended and can

be given for improvement by looking into English law for Carriages of Goods by Sea Act,

Moreover the suggestions that can be given for improvement by looking into English law for

Carriages of Goods by Sea Act regarding the provisions that deals with both the carrier and

the customer.

17  
 
Chapter 5 will consist of the concluding remarks, and the proposed findings will be offered to

strengthen the carrier’s liability in the Indian Law for Carriages of Goods by Sea Rules.

Recommending India to oversee the Rules in its maritime law to reflect in itself to the

international standards. Subsequently, looking into the carrier’s liability, it should be

specified by offering an updated International Rules that are given to the Carrier, taking into

account all of the three maritime conventions and analysing what the Indian law has lacked in

comparison to the English law and Rules. This will then strengthen the principle of carrier’s

liability in all jurisdictions, and the courts will not be restrained and confined to the

interpretation of the Law.

18  
 
 CHAPTER 2

THE HISTORY OF CARRIER’S LIABILITY

The law governing the carrier’s liability has existed for a substantial period. Therefore, it is

considerable to assimilate the characteristics of the present regime of liability that is enforced

in the International Carriages of Goods by Sea and it is necessary to review the grounds on

which it established the first document presented in order to see how it developed according

to the alterations made over the years in the transportation industry; by making an effort and

complying with the changes and construct an updated convention to acknowledge the

shipping system.37

2.1 Roman Empire to the Common Law

It was since the fourteenth century that the Carriages of Goods by Sea has been the mode of

exchange of goods for international trades. Initially, it is said that ‘carriages was conducted

by wooden ships and propelled by sails or oars, which were extremely vulnerable to maritime

risks and perils.’38 As it had still not developed a commercial relationship and the cargo

owners either hired or bought a vessel, or made a contract for either sale or hiring. This

resulted in the Roman Empire growing in trade, and this caused the carriers to have strict

liability for loss or damage of goods but due to excessive liability implied to the carrier, there

came some declines that made the Roman Empire shrink and by the sixteenth century Civil

Law was introduced.39 This Civil Law presented new obligations for the carriers, exempting

them from the previous liability. By the seventeenth century, there were new clauses that

were implemented for the payment of freights, the name of the ship, the date of sailing and

                                                                                                                       
37
 Fernanda  ruiz,  ‘legal  study  of  Sea  carrier’s  limitation  of  liability  according  to  Brazilian  law  in  comparison  to  
Hague  –Visby  regime  –  law  intern  review  2010.  Pg145.  
38
 H  Karan,  the  carrier’s  liability  under  international  maritime  conventions:  the  Hague,  Hague-­‐Visby  and  
Hamburg  Rules  [Edwin  Mllen  press,  Lewiston  [2004]  13.  
39
 ibid  8.  

19  
 
the nature of cargo as a bill in which the carrier had to deliver the cargo to the consignee as

an ‘evidence of the contract of carriages.’ This bill functioned as the document of title and

was independent of the charter-party and was later called The Bill of Lading in certain

countries, as it was non-negotiable.40 There was an increase in the transportation system, and

goods were carried in vessels, and when there were any disputes that related to the contract of

carriages, they were resolved by the Common Law Courts that extended its jurisdiction and

covered the maritime proceedings.41The goods that were to be delivered were to reach the

destination safely and in good condition as obliged to do so, and additionally if there were

damage or loss of the goods the carrier would be regarded solely liable.42 This was regarded

as a bailment contract and if there were a breach of the contract, the liability of the carrier

would be reduced depending on the status of his actual possession of the goods and divisions

that were made for liabilities arising out of his act and the act of his servant or agent.43 This

practise of Common Law in any loss or damage of the goods of the cargo whatever the

reason may be, for the loss held the carrier liable under the Bill of Lading contract.44 The

common carrier was45defined as, “the Common Law with regards to the liability of the public

carrier of goods is strict. Apart from express contract he is, with certain exceptions,

absolutely responsible for the safety of the goods while they remain in hands as carrier”

however the carrier had certain unavoidable happenings where he could discharge himself

from liability that arose out by Acts of Goods, public enemy, inherent defects of goods, the

                                                                                                                       
40
ibid 9-10.
41
ibid 11.
42
www.britannica.com/topic/carriages-of-goods>accessed 7th may2016.
43
ibid (n 38) 12.
44
Carver’s, ‘carriages by Sea, edited by Colinvaux ,13th ed., London [Stevens& sons], 1982 vol.1, section -2,1.
45
ibid.

20  
 
negligence of cargo interest.46 Although the carriers are exempted to these liabilities he shall

still be held liable if the damage was caused by any act of his negligence.47

2.2 The History of Principal in English Law

The carrier’s liability regime in England existed for many years previous to the existence of

any railroads as it was regarded, as one of the most convenient ways of transportation and

transportation by road was comparatively slow, expensive and dangerous. Due to this reason

the Carriages of Goods by Sea laws were made to govern earlier than the other transportation

systems. The English law was influenced by the Roman law, but it did not flourish very well

as the carriers responsibilities are concerned it dealt much with the contractual forms that

focused on depositing and hire of services of goods.48 By the sixteenth century the liability

of the carrier was looked at by presumed fault rather than strict liability. This liability mode

had influenced many countries and the admiralty courts made similar decision the trade

system grew and the contract of carriages by the registered ships re-emerged which gave birth

to a receipt that was for the identification of the delivery of goods.49 The law for carrier’s

liability and obligation was Rules under the civil law in the sixteenth century. By the

beginning of the seventeenth-century, there was a receipt which had some insertion of clauses

made by the master known as the bill of the lading. This law did not provide sufficient

provisions for the carriers, therefore; by the end of the seventeenth century Common Law

was regarded as one of the most significant laws.50 Its relation to the carrier and his customer

goes back to the time where there was no other appropriate form of transportation, and the

carrier’s obligation was not only to deliver the goods but also to deliver them safely with

good condition. This was regarded as an obligation that arose under the contract between the
                                                                                                                       
46
Michael F. Sturely, ‘the development of cargo liability regimes. In: Cargo liability regime in future maritime
carriages, Stockholm, [Swedish maritime law association 1998 11.
47
John f Wilson, ‘ Carriages of Goods by Sea’(Cambridge Law Review), 2010 115.
48
ibid (n 36).
49
ibid.
50
ibid (n 38)10.

21  
 
parties.51 It had the modification of Rules in the liabilities that was made by the carrier by his

act and those of others. The nature of this liable was strict and had some exceptions. The

carrier tried to escape certain liabilities by the eighteen century by the civil and Common

Law by inserting more of exemption clauses in the Bill of Lading and charter party.52 And by

the nineteenth century, the Bill of Lading was familiarised in the ports of the destination of

goods, and many nations announced the non-negotiable Bill of Lading, which allowed

transfers by recommendations. This evolution in the world trade has improved the navigation

system and the ship-owners were relatively more powerful financially to the amount that

squadron of the vessel became larger and proficient.53

By the early twentieth century, England was one of the most powerful maritime nations and

the ship-owners enjoyed the leading merchant fleet in the world, and they made terms in the

contract that had no freedom in the Bill of Lading.54 This helped the carriers in much

authorised structures, which also provided provisions of exemptions, which relatively

contradicted the strict liability norms, carriers abused the freedom of contract given to them

which caused conflict amongst the shippers, bankers and the underwriters and the legal

interference for providing a minimum guarantee to the cargo interest.55 After an agreement

was made by both the carrier and the ship-owner agreeing that, there shall be a list of

exemption in limiting liabilities or by declaring the provision null and void. 56

The national legislation based on the Harter act influenced many countries. However, as the

English Law favoured the carrier by the inward shipment. They were different statute

regarding the Carriages of Goods in the world and there needed to be regularity to avoid any

kind of claims as goods that are subjected to sale has been carried from one place to another
                                                                                                                       
51
ibid.
52
ibid (n 38) 3.
53
ibid 33.
54
A Diamond, ‘The Hague-Visby Rules’ , 1978 LMCLQ 255,277.
55
ibid (n 47)15-116.
56
ibid (n 38) 20.

22  
 
and became a matter of international characters resulting to application of different laws.57

Hence to bring uniform legal regulations in the Carriages of Goods by Sea certain

international conventions were ratified which led to the adoption of The Hague Rules in

192458 and the English Carriages of Goods by Sea ratified the same. In the course of time

there was a discontentment in the Hague Rules. As it favoured the carriers at expenses of the

shipper, which was inequitable and certain provision, were said to be ambiguous and

uncertain as it resulted in higher cost of transportation and the development. In the

technology and practises lead to an amendment of the Rules. Which was through the

sponsorship of the CMI and approved by a protocol in 1968.59 This protocol was called the

‘Visby Protocol’ also known as The Hague-Visby Rules which was incorporated by the

English Carriages of Goods by Sea Act 1971.

These Rules provided certain liabilities to the carrier that was not satisfactory and resulted in

a new set of Rules called the Hamburg Rules of 1978, which introduced certain alteration in

the previous regimes. On the 16th of July 1992, an Act was introduced to replace the Bill of

Lading Act, 1885 with new provisions and various other shipping documents called the

Carriages of Goods by Sea Act 1992.

2.3 The Unification of Certain Rules Relating to Bill of Lading

It was after the Brussel convention 1924 for the unification of certain Rules of law relating to

Bill of Lading which is also referred to as Hague Rules, which appeared as the first set of

Rules that gave uniformity for the rights and liabilities of the party as it allocated the risks

and damages of loss of cargos under the Bill of Lading.60 The obligation of carrier’s liability

was minimum, whereas the immunities for the carriers were maximum. According to the

                                                                                                                       
57
ibid (n 37) 150.
58
Booysen H, ‘principles of international trade law as a monistic system 2003 621.
59
United nations convention of Carriages of Goods by Sea , 1978 [Hamburg Rules] A/CN.9/306.
60
Ibid(n 46)116.

23  
 
Hague Rules, the parties could also negotiate their terms in the contract when the Rules have

not covered them.61 The Carriages of Goods by Sea Act, 1924 also further ratified it.

As there was advancement in technology, economics, and politics the need of amendment

was necessary for The Hague Rules, and through the sponsorship of the CMI, the amendment

of The Hague Rules was approved by a protocol in 1968 known as the Visby Protocol. This

Rule was embodied into the English law by the carriages of goods by the Sea Act

1971.62Hereafter, this provision was known as the Hague-Visby Rules as it did not have any

significant changes in its provision. See Liver Alkali company v. Johnson 63 where it imposed

more liabilities for the carriers and provided more protection for the cargo owners.

Hereafter, the United Nations held a conference in Hamburg in the year 1978 and adopted the

Convention on Carriages of Goods by Sea 1978, which is also known as the Hamburg Rules.

It emerged due to the dissatisfaction of the Hague-Visby Rules as it still dealt with ‘tackle to

tackle’ contract of carriages with no provision in the multimodal transport and the mode of

containerization that was evolving in the industries were barely recognised. 64 Although, The

Hamburg Rules provided a structure that was modern and fair for the ship-operators it did not

become a success as it was implemented by a number of developing countries and was

rejected by richer countries as they still stuck with the Hague and Hague-Visby Rules.65

There was an expectation that the Rules may have to deal with compromises, but instead, an

extensive Rules came up that was known as the Rotterdam Rules that provided a legal

structure for the developing shipping industry and provided provisions that lacked in The

                                                                                                                       
61
Samuel Robert Mandelbaum, ‘creating uniform worldwide liability standards for Sea carriage of goods under
the Hague, COGSA, Visby, and Hamburg conventions’ Transport law journal, Vol 23, 1996, 486
http://heinonline.org/HOL/Page?handle=hein.journals/tport123&div=24&g accessed 9th may 2016.
62
Ibid.
63
[1874], L.R .9 Ex.338.
64
www.jus.uio.no/lm/Sea.carriage.hague.visby.Rules.1968/doc.html#31 <accessed 10th may 2016.
65
http://www.uncitral.org/uncitral/en/uncitral_texts/transport_goods/2008rotterdam_Rules.html<accessed 10th
may 2016.

24  
 
Hague and Hague-Visby Rules.66 The commencement of these Rules had no diplomatic

conference, and it was open for signature in Rotterdam on September 23rd, 2009. It required

twenty countries to ratify it to be called a convention and relatively it was said to make up 25

percent of the world trade by volume.67 These Rules were drafted in a similar way like the

Hamburg Rules providing complete analysis in various characteristics in the contract of

carriages, as it comprised of 96 articles.68 These Rotterdam Rules are one of the most modern

Rules that provides technological and commercial development and imposes positive

liabilities for the carrier. With some categories of the third party in assisting the carrier in

performing the contract of carriages in maritime claims also having rights of the controlling

party and incorporating rights to transfer electronic transport records documents.69

2.4 History of Carriages of Goods by Sea in India:

Shipping and Seaborne trade is the oldest form of International Commercial trade in India.

India is considered to be one of the foremost maritime countries in the world.70 In the ancient

times, oceans were freely used for transactions arising out of International trade.71 The

history of Carriages of Goods by Sea in India can be traced back to the Vedic period where

the text of Manu elucidated the Rules related to maritime transport, and Kautilya’s

Arthasastra dealt with shipping and related matters.72 There were various texts in ancient

India, which formulated various codes. The code of Macassar and Malacca are the two

important texts related to maritime law wherein, its provisions were borrowed from Indian

texts. There are various laws, conventions, Rules and regulations that govern the contracts,

                                                                                                                       
66
ibid.
67
Soumik Chakraborty, ‘multimodal transport contracts: A critique’ 2014<
http://www.lawctopus.com/academike/multimodal-transport-contracts-critique/ <accessed 10th may 2016.
68
John f Wilson.230
69
Dr Theodora Nikaki, ‘The fundamental duties of the carrier under the Rotterdam Rules’ [2008] 14 JIML
6,512.
70
R Gopalakrishna, ‘The Law of liability from Maritime Accidents in India’ (2015)
71
ibid.
72
ibid.

25  
 
rights, and liabilities of the carrier in India. India passed the Carriages of Goods by Sea Act in

the year 1925, after it adopted the Brussels Convention on Maritime Law which contained

uniform Rules of Bill of Lading derived from The Hague Rules 1924. Carriages of Goods

Act, 1925 governs the shipping of goods from one port in India to other port in India or

outside India.73 Thus, this act governs the shipment of goods carried by national coastal

vessel within the country and goods carried by foreign going vessel.74 A contract for

Carriages of Goods by Sea comes into effect only by issuing a Bill of Lading under Bill of

Lading Act, 1856.75 Generally, when goods are shipped from one port to another, there arises

a risk of damage to the goods and in this case, it is difficult to ascertain as to who is liable for

the damage? And to what extent? Thus, to put an end to this problem, the conduct of the

parties is governed by the Carriages of Goods by Sea Act, 1925. This act provides for the

responsibilities and liabilities which induces the carrier to exercise diligence while shipping

and to ensure that the ship is securely manned, equipped and supplied with the essentials

which are required for safe reception of the goods.76 Non- observance of these responsibilities

by the carrier gives rise to the concept of liability, and the carrier would be liable for

compensation. With the rapid enhancement of globalization, increased demand for the supply

of goods in the global market and international economic integration, the need for

transportation has achieved greater heights. In a contract for Carriages of Goods, movement

of goods from one place to another requires a proper mode of transportation. Goods are

transferred from one place to another through four basic modes of transportation i.e., by air,

Sea, land and rail. Thus, movement of goods from one place to its final destination, by

combining two or more modes of transportation is termed as multimodal transportation. The

legislations which govern the multimodal transportation of goods by Sea in India are:

                                                                                                                       
73
Dr  Ram  N.  Sharma,  ‘An  Introductory  note  on  carriage  of  goods  by  sea  act,1925  [2015]  vol  4,  issue  5  IJSR,688.
74
ibid.
75
ibid.
76
ibid (70)

26  
 
 a) The (Indians) Bills of Lading Act of 1856

b) The Carriages of Goods by Sea Act of 1925

c) The Merchant Shipping Act of 1958 and;

d) The Marine Insurance Act of 1963.77

In Addition, the provisions of Carriages of Goods by Sea in India is also found in the

Contract Act, Evidence Act, Transfer of Property Act, The Code of Civil Procedure, The

Constitution of India, The Criminal Procedure Code and the Companies Act.78 Moreover, in

India, the Multi-Modal Transportation of Goods Act administers the multimodal

transportation of goods, 1993, which was recently amended in the year 2000.

2.5 Definitions of a Carrier under various International Conventions and Carriages of

Goods by Sea:

The Carriages of Goods by Sea has various conventions that define the carrier in certain

ways, as it is necessary to know who a carrier is and what purposes does it serve in the Rules.

Although the carrier’s definition has not much of difference in the conventions Article 1[a] of

The Hague-Visby Rules defines carrier as the person who convinces the owner or the

charterer who enters into a contract with a shipper.79

The carrier has also been identified as the person that has the name in the contract of

Carriages of Goods by Sea that concludes the shipper.80 This particular convention has also

defined an ‘actual carrier’ as a person to whom the enactment of the carriages of goods, or

part of the carriages has been delegated by the carrier and made any other person to whom

                                                                                                                       
77
CA Rajkumar S.Adukia, ‘ A brief study on Carriages Law and Multi Modal Transportation of
goods’http://www.caaa.in/Image/Carriage%20Laws%20and%20Multi-
modal%20transport%20of%20Goods.pdf<accessed 3rd may 2016.
78
ibid.
79
The Hague-Visby Rules- The Hague Rules as amended by the Brussel protocol 1968.  
80
 Article  1[1]  of  the  Hamburg  Rules  1978.  

27  
 
such performance has been entrusted.81 Article 1(5) of the United Nations convention on

contract for the international Carriages of Goods wholly or partly by Sea has also given its

definition of a carrier.82

2.6 Who is a Carrier?

When goods are shipped on a chartered vessel for a consignee they face specific difficulties

in the incident if the cargo is lost or damaged. Therefore, the carrier has to be identified as to

who the cargo claims can be conducted and establish a defined term in the contract of

carriages.83 The Bill of Lading is to be signed by the ships master as an agent of the ship-

owner and can be issued in the name of the charter, sub-charter, ship owner, or the agent as it

is vital for the claimant to make a correct decision as to which person he has to sue.84 As only

one party is liable to the contract of carriages under the English law. Additionally, if Hague

Rules governs the contract of Hague-Visby Rules, cargo claims are set to be time barred

under Article 3 Rules 6 except the claim is made within the prescribed period of 12 months

time.85

2.7 Person entitled to as Carriers

2.7.1 Ship-owner as a carrier

The ship-owner is said to be liable as a carrier, as he manages the ship and usually signs the

Bill of Lading as an agent. This was seen in Wehner v Dene steamship co86 where such a

contract in a general Rules was deemed to be of the demise charter party. The demise clause

of charterer is a party regarding the Bill of Lading as he can pursue a transfer of contractual

                                                                                                                       
81
 Article  1[2]  
82
 ‘Carrier’  means  a  person  that  enters  into  a  contract  of  carriages  with  a  shipper.  
83 nd
 Stephen  Girvin,’Carriages  of  Goods    by  Sea’  [2  edn,oxford  university  press  2011]  117.  
84
 David  Chong  Gek  Sian,’Unravelling  the  identity  of  the  carrier’  1994  6  SAcLJ  182.  
85
 Ibid  (n  83)  75.  
 
86
 [1905]  2  KB  92,98.  

28  
 
duties to the Ship-owner’s.87 The case of Berkshire 88 the legitimacy of the demine clause was

acknowledged in English law. There also have been cases where ‘Ship owners have been

unable to resist the inclusion in a bill of a demise clause or jurisdiction clause differing from

its counterpart in the charter party’

2.7.2 Charterer as a Carrier

The charter can be called or known as the carrier if the contract of carriage is governed by

Hague-Visby Rules. As in, when the Bill of Lading signed by the charterer in his primary title

as principal, it is evident that the contract exhibits with the charterer and not with the Ship-

owner,89 as shown in the case of The Roberta90where the charterer party provides an authority

to the master to sign the bill as an agent and thereafter the charterer is bound to be called the

carrier.

2.7.3 Sub-charterer as the carrier

When the Bill of Lading is liner Bill of Lading, that is in a standard form and signed by the

agent or the owner who are parties to the bill of the lading, and the contract has been issued

by the name of the sub-charterer; there is no limit or qualification regarding the personal

liability of the sub-charterer.91 As the Bill of Lading does not contain any clause to identify

the sub-charterer as a carrier. Hence, any person appointed in the contract of Carriages of

Goods that sign the Bill of Lading contract on behalf of his master or owner of the ship, be it

the ship-owner, agent, charterer, or sub-charterer is called a carrier.92

2.7.4 Person entitled as carrier under the Indian law

                                                                                                                       
87
 Ibid(n  83)  82.  
 
88
 [1974]  1  Lloyd’s  rep,  185.  
 
89
 ibid  (n  83)181.  
90
 [1937]  58  Ll  Lr  159.  
91
 ibid  (n  83)179.  
92
 ibid.  

29  
 
 Identifying a carrier when goods are carried on a charted vessel may seem problematic when

the ship-owner or a person who is not a party to the charter party holds the Bill of Lading.

The ship-owner and the charterer were to have a contract between them in order to form a

charter party, carrier, and cargo interest to form a Bill of Lading. 93 The carrier can be clearly

identified by a contract as being the ship-owner or the charterer. However, in some situations,

the ‘carrier’ can either be the charterer, ship-owner, or sub charterer. It is all related to the
94
circumstances and commercial position of the vessel. Article 1 (a) of the Indian Carriages

of Goods by Seas Act, 1925 defines carrier as the owner or the charterer who enters into a
95
contract of carriages with a shipper. As India has embodied The Hague Rules that is

relatively same as the English carriages of Sea Act96. Hence, there is not much of a

difference in defining who the carrier is under the Indian law, although the English Law has

ratified the Hamburg Rule97, which defines the difference between the ‘carrier’98 and ‘actual

carrier’.99The international conventions that define the carrier in certain ways do not apply in

India, as they have not adopted the International Conventions. Therefore, there are not many

comparisons to make for the identification of a carrier under the Indian law regime as to who

can be entitled as a carrier. This shows the lagging situation in the Indian Carriages of Goods

Act, as it is difficult for the claimants to identify the carrier regarding whom to sue if the

cargo was damaged or lost. Having the international conventions adopted, India will have a

clear definition of which the carrier is, altogether making it easier for all the cargo claimants

to have a good international trade system.

                                                                                                                       
93
Dr Shrikant Hathi & Binita Hathi, ‘maritime practice in India’ [7th edn Brus Chambers] 2012 229.
94
ibid
95
The Indian carriage of goods by Sea Act, 1925.
96
[1971] Hague-Visby Rules.
97
United nations convention on the Carriages of Goods by Sea, 1978 [Hamburg Rules].
98
‘carrier’ means any person by whom or in whose name a contract of carriage of goods by sea has been
concluded with a shipper.
99
‘actual carrier’ means any person to whom the performance of the carriages of the goods, or of part of the
carriage, has been entrusted by the carrier, and includes any other person to whom such performance has been
entrusted.

30  
 
 Chapter 3

THE OBLIGATION OF THE CARRIER

3. The Basis of the Carrier Liability

The modern law regarding the laws of Carriages of Goods by Sea has a specific liability

regime that is based on the international conventions which have a narrow inequity for

bargaining powers between the ship-owners or the carriers and the cargo owners. The Brussel

Convention of 1924 which is known as the Hague Rules later amended by the Visby Protocol

and now known as the Hague-Visby Rules of 1968100 has been ratified by most of the

countries101 and based on this international regime the adaptation of national legislation.102

After having studied the historical background and understanding the regimes, we can

conclude the codification of Hague Rules resembles the model Bill of Lading.

Therefore, to discover the basis of the carrier’s liability and burden of proof in cargo

transportation103in accordance with limitations and exceptions duties and responsibilities of

the carrier as his main duty is to issue Bill of Lading, and exercise due diligence to keep the

ship sea-worthy and care for the goods without deviating the agreed route under The Hague-

Visby Rules and Common Law.104 This chapter shall discuss the carrier’s obligations under

the various international conventions and look into the conventions that have been adopted by

                                                                                                                       
100
Alexander von Ziegler, ‘The liability of the contracting carrier’ vol 44:329.
101
The United Kingdom, united states of America,
102
ibid.
103
 Under      Article  1  [a]  of  the  Hague-­‐Visby  Rules  carrier  includes  the  owner  or  charterer  who  enters  into  a  
carriages  with  a  shipper    
104
 ibid  (n  38).  

31  
 
the English law under the Carriages of Goods by Sea. It shall compare the laws adopted by

Indian Carriages of Goods by Sea regarding the carrier’s obligations.

3.1 The Obligations of Carriers under the Common Law and other International

Convention.

3.1.1 Obligation under Common Law

Under Common Law, there are certainly implied duties that are imposed by the carrier in the

absence of a contractual specification limiting such liabilities. These duties are strict, and no

expressed contractual terms have been agreed upon. The carriers are subjected to certain

exceptions under the Common Law. Therefore, when there is no particular provision for a

specific matter regarding the carrier’s obligation the Indian courts resorts itself to the English

Common Law.

Seaworthiness: ‘connotes an inherent quality with which the unit was comprising vessel

and cargo is invested. So long as that unit maintain a constant character, that quality

remains inherent in it’.105 The carrier in every contract of affreightment has an implied

obligation to be responsible for a Seaworthy vessel that is fit to meet and undergo the Sea

and other incidental risks.106

The nature of obligation: The structural fitness of the vessel for the intended voyage is the

first extended obligation for the Seaworthiness. The obligation of Seaworthiness under the

Common Law is an absolute obligation that is not sufficient for the carrier to simply do his

best to make the vessel Seaworthy, as the vessel actually must be Seaworthy. Therefore, in

the case of Steel v State Line Steamship Co107 proved that the goods were damaged due to the

hole that was insufficiently fastened, and due to this, the wheat of cargo was damaged during

                                                                                                                       
105
 ibid  (n  83)  
106
 Dr  Zhen  Jing,  ‘the  obligation  of  carrier  in  Common  Law’  [2015]  2.  
107
 [1877]3  App  Cas  72.  

32  
 
the voyage as water entered through the port. It was held by the house of lords that the vessel

was unseaworthy.108 Also in Kopitoff v Wilson109 Field J provided the general description on

the term of Seaworthiness that ‘At Common Law the obligation of Seaworthiness is a

warranty [by the carrier] that the ship is good and is in a condition to perform the voyage

about to be undertaken, or, in the ordinary language, is Seaworthy, that is, fit to meet the

undergo the perils of the Sea and other incidental risks to which she must of necessity be

exposed in the course of the voyage…’110

Manning and equipment are also a major ground for a vessel to be Seaworthy as manning

extends to the competence of the vessel’s crew and master. In some situations, the vessels

might be considered unseaworthy if the cargo is overloaded or has improper cargo storage.111

Lord Sumner clarified what may amount to unseaworthiness in Elder Dempster & Co Ltd v

Paterson, Zachonis & Co Lt112 that bad storage which affects nothing but the cargo damage

may still leave the ship Seaworthy for an adventure be it only by carrying the cargo.113 Yet,

the question always arises whether the act of omission has rendered the unworthiness of the

ship.114 The obligation of Seaworthiness shall be considered as a breach if there are no

relevant charts, document or navigational aid provided as the vessel is unable to sail if it does

not possess the necessary documents that consider it unseaworthy.115

                                                                                                                       
108
 Lord  Blackburn  said  that  “…  where  there  is  a  contract  to  carry  goods  in  a  ship,  whether  that  contract  is  in  the  shape  of  a  
Bill  of  Lading,  or  any  other  form,  there  is  a  duty  on  the  part  of  the  person  who  furnishes  or  supplies  that  ship,  or  that  ship’s  
room,  unless  something  be  stipulated  which  should  prevent  it,  that  the  ship  shall  be  fit  for  its  purpose.  That  is  generally  
expressed   by   saying   that   it   shall   be   seaworthy;   and   I   think   also   in   marine   contracts,   contracts   for   sea   carriage,   that   is   what  
is  properly  called  a  ‘warranty’,  not  merely  that  they  should  do  their  best  to  make  the  ship  fit,  but  that  the  ship  should  really  
be  fit  …”  
109
 [1876]  1  QBD  377.  
110
 ibid  (n  106).  
111
 ibid  (n  83)  387.  
112
 [1924]  AC  522,561-­‐2.  
113
 ibid  (n  83)388.  
114
 See  A.  Meredith  jones  &  Co  Ltd  v  Vangemar  Shipping  Co  Ltd  [the  Apostolis][1997]  2  Lloyd’s  ep  241.  
115
   Ibid  (n  83)  389.  

33  
 
In order to consider the Seaworthiness of the cargo, which is also known as cargo worthiness,

the vessel has to be worthy of carrying particular goods. In certain cases where the cargo has

to be refrigerated the equipment must be acceptable and if the vessel is to carry live animals

the vessel must be free from any disease. Like in the case of Owners of Cargo on Ship ‘Maori

King’ v Hughes116 where it was said that the vessel is considered unseaworthy as the frozen

meat was to be shipped in which the vessel had a defected refrigerating plant.

The liability of the carrier in Common Law is to provide a seaworthy ship which is an

absolute duty, meaning even if the cause of unseaworthiness was not discoverable by due

diligence the carrier will still be considered liable. Although, the carrier has complete

freedom of contract he can escape liability by his own terms and having an implied duty to

furnish a seaworthy ship can be reduced or omitted.117 This resulted as an abuse of power by

the carrier and restriction of this freedom gave enactment of the Hague Rules to protect cargo

Interest. The carrier has the same liability as the insurer under the Common Law in India.

Article III of the Indian Carriages of Goods by Sea Act, 1925 schedule for rules relating to

Bill of Lading talks about the responsibilities and liabilities of the carrier. The first clause of

this article has bounded the carrier before and at the beginning of the voyage to exercise due

diligence.118Sub-clause (a) in this article is about the responsibility and liability of the carrier

to make the ship Sea-worthy. Sub-clauses (b) and (c) states the carrier’s liabilities to manage

and care for the ship, make sure the vessel is fit and safe to carry the goods that need

carriages and preservations.119 The carrier can escape liability arising out from certain

exemptions like the Act of God, fault of the consignor or inherit iniquity from the goods

themselves or the states of the enemies. In the case of British and Foreign Marine Insurance

                                                                                                                       
116
 [1895]  2  QB  550.  
117
 N.J.  Margetson,’  the  system  off  liability    of  article  III  and  IV  of  the  Hague-­‐Visby  Rules’  Phd  thesis  [2008]  48.  
118
 Article  III  [1]  The  Indian  Carriages  of  Goods  by  Sea  Act  1925.  
119
 Article  III  [a,  b,  c]  of  the  Indian  Carriages  of  Goods  by  Sea  Act  Rules  relating  to  Bill  of  Lading.  

34  
 
Co. Ltd. V Indian General Navigation and Rly. Co. Ltd.120 it was perceived that, a carrier

under Common Law is subjected to two different categories of liability, one being for the loss

in which he shall be liable as an insurer and the other for the loss in which he has the

obligation to carry the goods safely, but is also still liable.

3.1.2. Obligations of the Carrier under the Hague Rule

The Hague Rules, 1924 was formulated due to abuse of carrier’s strong bargaining position

and comprehensive provision of the carrier’s Bill of Lading. The Hague Rules were drafted

by the International Association of Maritime Law Committee (CMI) in the United Kingdom

through the passage of Carriages of Goods by Sea Act, 1924 and formally adopted the Hague

Rule with some minor amendments.121 This Rule was subsequently amended after the

Brussels protocol 1968 which came to be known as The Hague-Visby Rules 1971. This rule

was made for the protection of cargo owners from the exclusion of liability by the sea carriers

and came into effect in the United Kingdom by the Carriages of Goods by Sea Act 1971. The

main purpose of this act was to imply duties to the carriers in every contract of carriages. It is

obligatory for the carriers to follow these duties in all cases where the rule is applicable and

despite the new regime, Common Law rules still function in specific circumstances.122

The provision that governs the liability of the carrier under the Hague Rules/Hague-Visby

Rules are emphasised under Article III (1 and 2)123 where it states that the carrier shall be

bound before at the beginning of the voyage to exercise due diligence to a] make the ship

seaworthy. A leading case on this point is the case of Union of India v NV Reederij

Amsterdam124 where it was portrayed by the House of Lords…125 b] properly man, equip and

                                                                                                                       
120
 [1911]  ILR  38  Calcutta  28.  
121
 Dr  Zhen  Jing,  ‘Carriages  of  Goods  by  Sea  The  Hague-­‐Visby  Rules’  [2015]  p.2  
122
 ibid  (n  117)  44.  
123
 The  Hague-­‐Visby  Rules  1971.  
124
 [1963]  2  Lloyd’s  Rep.  233.  

35  
 
supply the ship; c] make the holds, refrigerating and cool chambers and all other parts of the

ship in which goods are carried, fit and safe for their reception, carriage and preservation.126

In order to gain a deeper understanding of The Hague Rules it is detrimental to understand

who the carrier actually is. This can be answered through Article 1 [a] of the Hague-Visby

Rules.127 The identity of the carrier is generally recognised on the grounds of Bill of Lading

and other documentations. The Hague-Visby Rules also impose a time limit of 1 year where

the cargo owners are able to claim for breach of contract against the carrier.

These are the fundamental provisions of the carriers liabilities and duties that consist of a

standing and popular expression ‘due diligence’. The significance application of this rule is

essential in order to acknowledge when and by whom it can be exercised by128 as due

diligence requires the consideration of the facts of the cases and is affected by changes in the

level of knowledge and other factors such as technology.129 Through the vast growth in

information and communications in technology, the commercial transactions in the shipping

industry are widely effected through the advancements of technology such as the Internet and

through the introduction of Electronic Data Interchange (EDI).130 Through the creation of the

EDI system and the system being used so commonly internationally, it has replaced the

traditional paper Bills of Lading. The reason for this is that when comparing the EDI system

with the traditional Bills of Lading, the EDI system is seen as highly beneficial as it

consumes less time [thus, is time saving], eases the production of trading over long distances,

minimises costs, increases the standards and accuracy of communications in the business and
                                                                                                                                                                                                                                                                                                                                                                                 
125
 Usual  standards  of  due  diligence  is  an  exercise  of  reasonable  care  and  skill.  In  other  words,  a  task  or  duty  
should  be  performed  so  as  to  exclude  any  element  of  negligence.  The  question  whether  it  is  enough  to  do  
one’s  work  not  negligently  and  not  unskilfully  to  discharge  the  duty  of  ‘due  diligence’  or  there  is  some  further  
margin  for  additional  steps  which  one  ought  to  have  taken  so  that  negative  results  might  have  been  avoided.  
126
 Hague-­‐Visby  Rules  Article  III  (1  )  (a)(b)  (c).  
127
 Carrier  includes  the  owner  or  charterer  to  enters  into  the  contract  of  carriage  with  the  shipper.  
128 th
 John  Richardson,  The  Hague  and  Hague-­‐Visby  Rules,  Lloyd’s  Practical  Shipping  Guides,  4  ed.  London  [LLP  
Reference  Publishing]  [1999]  19.  
129
 Ibid  20.  
130
 Article  2  of  the  UNCITRAL  Model  Law  on  Electronic  Commerce  1996  defines  Electronic  Data  Interchange  
[EDI]  as  the  ‘electronic  transfer  from  computer  using  an  agreed  standard  to  structure  the  information’.  

36  
 
also decreases the number of middlemen that are involved in the transactions of the

business.131 With the number of benefits introduced through the EDI system, it is obvious that

international countries are likely to choose this modernised concept that follows today’s fast

paced world, over the traditional Bills of Lading that was seen as the best method to follow in

the 19th Century but fails to provide the same support as the EDI system does, in the 21st

century.

Hence, it is noted that the Indian statute is not as developed in comparison to England and

other maritime countries, although it incorporates The Hague Rules in the Carriages of Goods

by Sea, 1925 and has never been a party to the international conventions. The weaknesses

seen in the Hague Rule resulted in the ratification of The Hague-Visby Rule by England and

other maritime countries for the amendment has benefited the obligations of the carrier.

3.1.3 Obligations for Due diligence to provide a seaworthy vessel and care of cargo.

Due diligence according to the Cambridge Dictionary is defined as ‘action that is considered

reasonable for people to be expected to take in order to keep themselves or others and their

property safe’. The concept of due diligence has been interpreted as being roughly equivalent

to the Common Law duty of reasonable care, by the courts, but there was speculation as to

whether due diligence was derived from the US Harter Act of 1893.132

Article III (1)(b) of the Hague-Visby Rules, 1971 as an obligation for the carrier to provide a

seaworthy vessel that is considered fit to deliver the cargo from one destination to another

                                                                                                                       
131
 Zulkifi  Hasan  and  Nazli  Ismail,  ‘The  Weaknesses  Of  The  Hague  Rules  And  The  Extent  of  Reforms  Made  by  
The  Hague-­‐Visby  Rules’  
th
<http://www.fd.unl.pt/docentes_docs/ma/wks_MA_20177.pdf>accessed18 May2016.  
132
 ‘It  shall  not  be  lawful  for  any  vessel  transporting  merchandise  or  property  from  or  between  the  ports  of  the  
United  States  of  America  and  foreign  ports,  her  owner,  master,  agent  or  manger,  to  insert  in  any  Bill  of  Lading  
or  shipping  document  any  convenant  or  agreement  whereby  the  obligations  of  the  owner  of  said  vessel  to  
exercise  due  diligence  [to]  properly  equip,  man,  provision,  and  outfit  said  vessel  and  to  make  said  vessel  
seaworthy  and  capable  of  performing  her  intended  voyage,  or  whereby  the  obligation  of  the  master,  officers,  
agents,  or  servants  to  carefully  handle  and  stow  her  cargo  to  care  for  and  properly  deliver  same,  shall  in  any  
wise  be  lessened,  weakened  or  avoided’.  

37  
 
safely, to certify that the vessel’s body and the equipment it contains is free of damages.

Furthermore the engine of the vessel must be operating effectively and all the documentations

on board as well as the proficiency of the seamen should be considered fit for sailing the

vessel.133 Although certain vessels could be properly equipped and crewed, it can still be

considered unfit to transport specific kinds of cargos. In consequence, cargo worthiness is

also essential for a ship to be classified as seaworthy. In effect, Article III (2) of the Hague-

Visby Rules strongly requires cargos to be worthy of the vessel, despite it being noted that

there is no such existence of the word in the Rules.134 The leading English case is Riverstone

Meat Co Pry Ltd v Lancashire Shipping Co Ltd [The Muncaster Castle]135 where, it was held

that the vessel was unseaworthy and the ship-owners were not liable for the damage of the

cargo as they had exercised due diligence but the House of Lords overruled this decision and

said that the carrier was liable for breach of the obligation to exercise due diligence.136 This

case caused dismay internationally and was one of the main reasons for the United Kingdom

to revise the rule they had adopted. However, the diplomatic conference held in Brussels in

1967 and 1968 was rejected as it was not a fundamental principle in other countries and it

would not balance in the 1924 convention in certain interests and caused difficulties for the

insurers for the cargo interest to recover against the contractors who are at fault.137 Hence,

Article III of the Hague-Visby Rules added modifications for the absolute liability caused by

unseaworthiness of a ship to negligence liability. As, Article III (8) of the Hague-Visby Rules

                                                                                                                       
133
 Ahmad  Hussam,  Kassem,  The  Legal  Aspects  of  Seaworthiness;  current  laws  and  development,  2006,  p.24  at  
th
http://discovery.ucl.ac.uk/6988/1/6988.pdf,  accessed  on  17  May  2016.  
134
 W.F  Astle,  The  Hamburg  Rules  [Fairplay  Publications]  1981  25.  
135
 [1961]  AC  807.  
136
 Viscount  Simonds  said  that  ‘no  other  solution  is  possible  than  to  say  the  ship-­‐owners’  obligation  of  due  
diligence  demands  due  diligence  in  the  work  of  repair  by  whomsoever  it  may  be  done’  .  
137
 ibid  (n  83)424.  

38  
 
invalidates any attempt by the carrier to exclude is undertaking of seaworthiness. It also

reveals that the carrier is not free from assuming a more stringent obligation.138

3.1.4 Comparison of carrier’s obligation under the Common Law, Hague-Visby Rules

and Indian Carriages of Goods by Sea

In comparison to Common Law, the Hague-Visby Rules lessened the obligations of the

carriers liability to make it less rigid, as the carrier had an absolute liability to provide a ship

that is fit to load, carry and discharge the cargo safely regarding the ordinary perils

encountered on the voyage. As said in the Maxine Footwear Co Ltd v Canadian Marine

Ltd139 that Art III R1 that carrier’s duty starts at least before the loading process till the time

the voyage begins. The seaworthiness of the ship in Hague-Visby Rules is modified to

reduce the obligation of seaworthiness by the use of due diligence. The carrier under the

Common Law had to deliver the cargo without damage or loss and the exceptions were act of

god, inherent vice of the cargo, defective packaging, insufficient packaging or general

average sacrifice, whereas the carrier under the Hague-Visby Rules had to see that the cargo

was loaded safely and without delay.140

In the case of Albacora SRL v Westcott and Laurence Line141 the House of Lords held that

apart from the term ‘carefully’, the term ‘properly’ also adds to the standard of care expected

from carriers and ship-owners under Article III, R2142 of the Hague-Visby Rules. Lord Reid

                                                                                                                       
138
 Under  this  rules  of  law  unseaworthiness  which  is  latent  and  undetectable  by  due  diligence  before  the  
voyage  commences  or  unseaworthiness  that  arises  after  the  voyage  is  commenced  does  not  make  the  carrier  
liable.  Carriers  are  at  liberty  to  assume  a  more  onerous  obligation  by  expressly  warranting  the  seaworthiness  
of  a  vessel  in  the  contract  for  the  carriages  of  goods.  
139
 [1959]  AC  589.  
140
 Samantha  Masters,  Role  and  Responsibilities  of  the  Carrier,  Shipper  and  Consignee,  2014.    
https://www.academia.edu/6585887/roles_and_responsibilities_of_the_carrier_shipper_and_consignee<acce
ssed18May2016.  
141
 [1966]  2  Lloyd’s  Rep  53.  
142
 The  carrier  is  required  to  properly  and  carefully  load,  handle,  stow,  carry,  keep,  care  for  and  discharge  the  
goods  carried.  

39  
 
defined the meaning of Article III R2.143 The Common Law the carrier is bound to deliver the

cargo without delay and prosecute the voyage with due dispatch. Article IV, of the Hague-

Visby Rule was expressly made in subject to article III R2 where the cargo owners will not

be held liable under certain exceptions seen in the case of Milan Nigeria Ltd v Angeliki B

Maritime Co.144

3.1.5 Obligation to issue Bills of Lading

Article III, R3 of the Hague-Visby Rules states ‘the shipper can demand the carrier to issue a

Bill of Lading showing the leading marks, the quantity of the goods and apparent order and

condition of the goods.’145 This states that the carrier in issuing the Bill of Lading does not

provide any sort of penalty for non-compliance, and it is seen in the case of Leesh river tea co

v British Indian steam navigation co.146it was decided that the carrier had a non-delegable

duty for carrying, caring and keeping of the cargo as it was considered an important duty. It

can be understood that the carrier may not know the precision of whether the cargo is packed

in containers or in packages as told by the shipper, however if the precision of the

information is not correct, the carrier would be held liable as he is the one to issue the Bill of

Lading.147 Under the Indian Carriages of Goods by Sea Act 1925 Article 1(b) the contract of

carriages only applies to contracts that covers the bills of lading or any other similar

document of title. Such documents must relate to the carriages of goods by sea or if it is

issued and is in accordance to the charter party from the time where the similar documents of

                                                                                                                       
143
 …  here  ‘properly’  means  in  accordance  with  a  sound  system  and  that  may  mean  rather  more  than  carrying  
the  goods  carefully…In  my  opinion  the  obligation  is  to  adopt  a  system  which  is  sound  in  the  light  of  all  the  
knowledge  which  the  carrier  has  or  ought  to  have  about  the  nature  of  goods.  And  if  that  is  right,  then  the  
respondents  did  adopt  a  sound  system.  They  had  no  reason  to  suppose  that  the  goods  required  any  different  
treatment  from  that  which  the  goods  in  fact  received.  
144
 [2011]  EWHC  892  [COMM].  
145
 Article  III  R3  of  The  Hague-­‐Visby  Rules  1968.  
146
[1966]  1  Lloyd’s  Rep.  450.  
147
 Ibid  (n  121).  

40  
 
title or Bill of Lading governs the relation between a carrier and a holder.148 The question of

whether a straight Bill of Lading is ‘any similar document of title’ arises in the case of J I

Mac-William Company Inc v Mediterranean Shipping Company SA [The Rafaela S]149

where, there was controversy regarding if a straight Bill of Lading would qualify as a ‘Bill of

Lading or similar document of title.’ This became a matter of issue under the Hague-Visby

Rules and the cargo owners appealed their case to the Court of Appeal as they suffered severe

damage. The Court of Appeal held that the straight bill is a Bill of Lading or similar

document of title, through which The Hague-Visby Rules were involved.150 Whilst being

allowed to appeal their case it can be understood that the cargo owners were able to take

forward their case to a higher court [Court of Appeal] as the United Kingdom had adopted

The Hague-Visby Rules expressly and impliedly and one of the main purpose of the Hague-

Visby Rules was to provide protection to cargo owners from extensive exclusion of liability

by sea carriers and was achieved through incorporating the standard clauses into the bills of

lading.151 This also shows that in comparison India still lags behind in providing efficient

rights for the cargo owners today internationally. As Indian law still resorts back to the

Common Law Rules and The Hague Rules. It was found by some developed countries that

the rights for protection of cargo owners was still limited, hence the Hamburg Rules was

commended by the cargo owners as they found these Rules to be far more beneficial to them

and their rights, since the developed countries were powerful enough to attain legislation

which adjusted a fair balance in their favour152. Contrary to the limited rights offered in The

Hague Rules and The Hague-Visby Rules, as it did not serve a fair balance between the

interest of the cargo owners and the carriers. Under the convention of the Hamburg Rule, the
                                                                                                                       
148
 Ibid  (n  78)392.  
149
 [2005]  UKHL.  
150
 ibid  (n  121).  
151
 Ibid  (n  121).  
152
 Ms  Anomi  Wanigasekera,  ‘comparusion  of  Hague-­‐Visby  and  hamburg  rules  
www.juliusandcreasy.com/inpages/publication/pdf/comparison_of_hague_and-­‐hamburg-­‐AW.pdf>accessed  
st
21  may  2016.  

41  
 
carrier is presumed liable for any loss or damage endured by the cargo owner, until he is able

to prove his defense.

Article 3 R4 states that the Bill of Lading holds vital significance in carriages of goods by

sea, as it is considered as conclusive evidence between the carrier and the consignee and the

prime facie evidence between the carrier and the shipper.153 Similarly in India, the carrier is

considered liable instead of the shipper, as it is not the carrier’s responsibility to check how

the cargo is packaged or contained, under Article 3 R4 of the Indian Carriages of Goods by

Sea Act, 1925. The carrier can also indemnify himself against all loss, damages and expenses

that are in consequence of the inaccuracies, and will not cause him to be liable or responsible

under the contract of carriage.154 However, there are some modification in this rule regarding

the cargo bulk which states that the any trade made under the custom regarding the weight of

the cargo that is inserted in the Bill of Lading is determined or acknowledged by a third party

rather than the shipper or carrier. In fact the weight determined cannot be used as a prima

facie evidence against the receiver of the goods and the accuracy at the time of shipment shall

not be deemed as the shippers guarantee.155

Furthermore, the carrier or the shipper shall be discharged from all liabilities if the loss or

damage suffered is notified in writing and given to the carrier or his agent at the port of

discharge, with a time bar of 1 year from the date of delivery of goods or in the case of the

goods not being delivered then from the date the goods should have been delivered. This time

period of 1 year can also be extended by the agreement of the parties providing that the suit is

brought after the period of expiry of 1 year, but the further period if allowed by the court and

the carrier cannot be exceeded for more than 3 months.156 The carrier, in the case of any

                                                                                                                       
153
 Article  3  Rule  4  of  the  Indian  Carriages  of  Goods  by  Sea  Act  1925.  
154
 Article  3  Rule  5  of  The  Indian  Carriages  of  Goods  by  Sea  Act  1925.  
155
 Dr  Ram  N.  Sharma,  ‘An  Introductory  note  on  carriage  of  goods  by  sea  act,1925  [2015]  vol  4,  issue  5  IJSR,688.  
156
 Article  III  Rule  6  of  the  Indian  Carriages  of  Goods  by  Sea.  

42  
 
noticeable loss or damage, has the facility to inspect and tally the goods. Under Article 3 R6

of the Indian Carriages of Goods by Sea Act 1925 failing to comply out these obligations the

carrier himself is held liable for any loss or damage caused to the goods, and if this so

happens, compensation is obligatory for the person who was entitled for the delivery of the

goods.157

Therefore, seeing that India still resorts its laws to the Common Law rules in certain matters

there ought to be some ratifications of the international conventions. Such as the Hague-

Visby Rules, Hamburg Rules and Rotterdam Rules as they have not adopted any of these

conventions as their laws are only embodied with The Hague Rules which has many

weaknesses that resulted in the ratification of the Visby protocol and later was called the

Hague-Visby rules the ratification of Hague-Visby Rule shall benefit India especially in

provisions regarding the protection of rights for cargo owners.

There is very less approach towards the rights of the cargo owner in India as the Indian law

recognises the right of cargo owners to hold possession (lien) for the due amounts, under the

charter and under the Bill of Lading,158 as The Hague Rules are unclear in providing the

provisions to differentiate the carriers, which makes it hard for the cargo owners to know who

the actual carrier is, in situations where he needs to claim or sue them for his goods that are

lost or damaged.

                                                                                                                       
157
 Ibid  (n  93)79.    
158
 Binita  Shrikant  Hathi,’Ship  Arrest  in  India’  [2014]  issue    

43  
 
 Chapter 4

THE RIGHTS AND IMMUNITIES OF THE CARRIER

4.1 Exemptions under The Hague-Visby Rules and Indian Carriages of Goods by Sea

Act 1925.

In relation to Article III of The Hague-Visby Rules, Article IV provided rights and

immunities for the carrier in the United Kingdom stating that any carrier is not legalised to

contract out any duties in this rule.159 Similarly, rights and immunities are article in the Indian

Carriages of Goods by Sea Act 1925,160 and Article IV, R1.161 In an unforeseeable

circumstance, where a contract is considered illegal, inconceivable or aimless then the parties

are freely discharged from their main obligations, as the relationship in carriage of cargo by

sea are contractual by nature.162 This provision continues ‘where loss or damage has resulted

from unseaworthiness the burden of proving the exercise of due diligence shall be on the

carrier or other person claiming exemption under this Article.’163 This Article provides the

general theory that the burden of proof lays on the cargo owners in the initial stage where the

unseaworthiness of the ship causes loss or damage of the cargo, but the burden of proof can

shift to the carrier who then has to verify that he had taken reasonable care of the ship’s

seaworthiness.164 Further to this in Article IV R2 there are a list of 17 Acts that exempt the

carrier from certain liabilities in India, which states that ‘neither the carrier nor the ship shall
                                                                                                                       
159
 Peter  J  Cullen,  p6.  
160
 Article  IV  of  the  Carriages  of  Goods  by  Sea  Act  India  1925.  
161
 Neither  the  carrier  nor  the  ship  shall  be  liable  for  loss  or  damage  arising  or  resulting  from  unseaworthiness.  
Unless  caused  by  want  of  due  diligence  on  the  part  of  the  carrier  to  make  this  ship  seaworthy,  and  to  secure  
that  the  ship  is  probably  manned,  equipped,  and  supplied,  and  to  make  the  holds,  refrigerating  and  cool  
chambers  and  all  other  parts  of  the  ship  in  which  goods  are  carried  fit  and  safe  for  their  reception,  carriage  and  
preservation  in  accordance  with  the  provisions  of  paragraph  1  of  Article  III.  
162
 AA  sefera,  ‘Basis  of  carrier’s  liability  in  carriages  of  goods  by  sea’  <  
163
 Article  IV  Rule  1.  https://www.duo.uio.no/bitstream/handle/10852/42090/5070.pdf?sequence=7>accessed  
nd
22  may  2016.  
164
 ibid  (121)  14.  

44  
 
be responsible for loss or damage arising or resulting from…’165 however, if the lost or

damage arises out during the discharge of goods from the ship the carrier shall be liable for

such loss or damage and cannot invoke the immunities under this article. As this rule shall

only apply when the loss or damage resulted because of the negligence, default in navigating

or management of the ship.166 Article IV (2) (a) of the Indian Carriages of Goods by Sea Act,
167
1925 elongates with the case of Collis Line private ltd v New India Assurance co. Ltd

where Justice Kochu Thommen observed the immunity under this article which limited the

management and navigation of the vessel and do not apply to the principal responsibility of

the carrier to perform the contract of carriage that includes the delivery of cargo. Negligence

that arose due to default of navigation or management of the vessel shall not be considered as

neglect of duty owed to the cargo owner.168 Any apparatus of the ship that is meant for the

protection of the cargo or contract of carriage does not amount to negligence in the

management of the ship under this article as the exception or immunity applies only to the

care of the ship and not the cargo whilst this immunity is not available to the carrier for his

default however, he can claim protection only if the damage arises without his actual fault

and his agents and servants who were acting on his behalf for managing the ship.169 In

addition, where the primary objective of the vessel is safety, it is irrelevant that the negligent

                                                                                                                       
165
 [a]  act,  negligent,  or  default  of  the  master,  mariner,  pilot  or  the  servants  of  the  carrier  in  the  navigation  or  
in  the  management  of  the  ship  [b]  fire,  unless  caused  by  the  actual  fault  or  privity  of  the  carrier  [c]  perils,  
dangers  and  accidents  of  the  sea  or  other  navigable  waters  [d]  act  of  God  [e]  act  of  war  [f]  act  of  public  
enemies  [g]  arrest  or  restraint  of  princes,  rulers  of  people  or  seizure  under  legal  process  [h]  quarantine  
restrictions  [i]  act  or  omission  of  the  shipper  or  owner  of  the  goods,  his  agent,  or  representative  [j]  strikes  or  
lock-­‐outs  or  stoppage  or  restraint  of  labour  from  whatever  cause,  whether  partial  or  general  [k]  riots  and  civil  
commotions  [l]  saving  or  attempting  to  save  life  or  property  at  sea  [m]  wastage  in  bulk  or  weight  or  any  other  
loss  or  damage  arising  from  inherent  defect,  quality,  or  vice  of  the  goods  [n]  insufficiency  of  packing  [o]  
insufficiency  or  adequancy  of  marks  [p]  latent  defects  not  discoverable  by  due  diligence  [q]  any  other  cause  
arising  without  the  actual  fault  or  privity  of  the  carrier,  or  without  the  fault  or  neglect  of  the  agents  or  servants  
of  the  carrier,  but  the  burden  on  proof  shall  be  on  the  person  claiming  the  benefits  of  this  exception  to  show  
that  neither  the  actual  fault  or  privity  of  the  carrier  not  the  fault  or  neglect  of  the  agents  or  servants  of  the  
carrier  contributed  to  the  loss  or  damage.  
166
 Ibid  (n  70)  379.  
167
 AIR  1982  Kerala  127.  
168
 Ibid,  p  131,  para  8.  
169
 Ibid.  

45  
 
conduct also affects the cargo. It is also observed in the Canadian Case of Kalamazoo Paper

Co v CPR Co170 It was held by the Supreme Court of Canada that, in situations where the use

of pumping machineries affected the basic safety of the ship and subsequently, the actions of

the crew fell within the ambit of management of the ship exception.171 Article IV (2) (b) of

the Indian Carriages of Goods by Sea Act, 1925 equates the carrier from loss suffered due to

fire, unless the fire is caused by the actual fault or privity of the carrier. Unlike the other

exceptions, this provision holds the carrier liable for fire caused by its own negligence. Under

the English Law, there is no clarity as to who has the burden of proof and thus, the carrier

must prove his innocence or the person claiming the cargo must prove it but the onus is on

the cargo owner.172 This provision contains two clear advantages for the claimant as it

provides an extended definition of an owner under the ships of United Kingdom and the

second advantage provides a period of coverage of the rules overall.173

Nevertheless, in certain corporate cases, the senior employees or officers will be vicariously

liable and in case of use of fire extinguishers which may result in damage of cargo, the carrier

will not be held liable unless he has made arbitrary use of water in extinguishing the fire.174

Kerala High Court in a certain case simplified the word “perils, danger and accidents of the

sea or other navigable waters” appearing under Article IV (2) (c)175 which states that, any

accidents that happens due to unexpected events despite the skills and prudence shown by the

carrier, his agent or servant shall come within the ambit of this article. 176 The other exception

that denotes unnatural accidents comes under the Article IV (2) (d) of the Indian Carriages of

Goods by Sea Act, 1925 and similarly, this exception lies in the same provision under The

                                                                                                                       
170
 [1950]  2  DLR  369.  
171
 ibid  (n  121)16.  
172
 Ibid  (n  83)474  
173
 ibid  475.  
174
 Ibid  (n  128)  11-­‐34  
175
 Indian  Carriages  of  Goods  by  Sea  Act,1925.    
176
 ibid  (n  93)381.  

46  
 
Hague- Visby Rules, this exception denotes to unnatural accidents such as incidents

occurring beyond the control of a human being and popularly known as ‘act of god’. In the

case of Nugent v Smith177 where James LJ stated that..178 Conversely, the carrier cannot rely

on ‘act of god’ if the damage could be prevented and any human activities have occurred

which resulted in the damage or loss. Under the Indian Law, the question arises ‘whether

there shall be a liability of carrier under the contract for carriages of goods by sea on

discharge of cargos from the tackle of the vessel? Can the owner of the ship escape the

liability, if another under a charter party charters the ship? Are the defendants entitled to the

defence of ‘act of god’ in this particular case? These were bought up before the full bench of

Kerala High Court’179 In a leading case of General Traders Ltd and another v Perce Leslie

(India) Ltd., and others180 where it was observed by Justice Thomas and the full bench of

High Court that if any occurrence happens in the sea that amounts to act of god shall be

observed by the degree or dimension that no human foresight could provide and that human

could not recognize the possibility as mere tornado or gale resulting from a fury does not

itself amounts to act of god.181 As a party who seeks asylum under the defence of act of god,

he cannot plea of wild weather or tornado as an exemption for his liability as the conditions

of the oceans are not unknown to the sailors and they can determine those conditions at the

time of voyage as such situations are common in maritime ventures.182 Further, it was said

that, if a carrier of goods by sea dissolves his liability merely on account of fury of water then

the cargo owner would not be able to reimbursed his loss as well as recover his goods. The

Court also stated that, the carrier continues to be responsible unless otherwise provided in the
                                                                                                                       
177
 [1876]  1  CPD  423  (CA).  
178
 act  of  god  is  a  mere  short  way  of  expressing  this  proposition:  A  common  carrier  is  not  liable  for  any  accident  
as  to  which  he  can  show  that  it  is  due  to  natural  causes,  directly  and  exclusively  without  human  intervention,  
and  that  it  could  not  have  been  prevented  by  any  amount  of  foresight  and  pains  and  care  reasonably  to  be  
expected  from  him.  
179
 ibid  (93)  381.  
180
 AIR  1987  Kerala  62.  
181
 Ibid  para  11  66.  
182
 ibid  para  10.  65.  

47  
 
contract, until the goods are unloaded from the shore.183 Article IV (2) (e)184 is mostly

prevalent in the English Law similarly, Article IV(2)(f) similarly is more relevant in the

English Law as both of them mostly rely on the enemies of King’s and Queen’s. Following

this provision Article IV (2) (g) deals with the arrest and restrain of prince which is most

likably more prevalent in the English Law rather than the Indian Law however, we cannot

discuss all the seventeen listed exemptions under this article henceforth, the relationship

between the duty of the carrier and exemption can be well observed as the exemptions are

never accessible to those carriers who are negligent despite having the requirement of

caution. Therefore, it is necessary to have a casual relationship regarding loss or damage and

act of negligence and thereby, the carrier will be granted exemption if he has not contributed

to any loss or damage arising out of his act of negligence.

4.2 Allocation of Burden of proof

The concept of burden of proof is to determine an answer arising between two parties as to

who needs to prove what?185 In regards to the cargo liability claims, the carrier is obliged to

prove himself having fulfilled his duty under the situation acquitting his liability or not.

Regarding the allocation of burden of proof, The Hague- Visby rules that has been ratified by

the English Law is subjected to considerable uncertainties as, what is to be proved is

determined by the nature of exception invoked.186 The first requirement of the cargo owner to

prove his claim in ascertaining his case is that the loss or damage he suffered while the cargo

was in the custody of the carrier. The period of responsibility under the Indian Carriages of

Goods by Sea Act is from the time of shipment to the time of discharge (port to port)

                                                                                                                       
183
 Ibid  (n  70.)  
184
 Indian  Carriages  of  Goods  by  Sea  Act,  1925.  
185
 Regina  Asariotis,  Loss  due  to  a  combination  od  causes:  burden  of  proof  and  commercial  risk  allocation.  In:  A  
new  convention  for  the  carriage  of  goods  by  sea  the  Rotterdam  Rules:  and  analysis    of  the  UN  Convention  on  
Contracts  of  International  Carriages  of  Goods  wholly  or  partly  by  sea,  Witney,  (law  text  publishing  limited)  
2009  139  
186
 ibid.  

48  
 
similarly, in The Hague- Visby rules, responsibility of the carrier is (tackle to tackle).187 The

cargo owner often finds it easy to shift the burden of proof to the carrier by showing a clean

Bill of Lading that was issued by the carrier at the time of shipment as a prima facie evidence

that the goods were in a good condition and thus, he discharges his initial burden by showing

that the conditions of the goods has changed when it arrived (discharged).188Article 3(1) of

Indian Carriages od Goods by Sea Act, 1925 states that, the carrier would be granted

exemption from loss or damage if, the carrier shows that he exercised due diligence in

keeping the ship seaworthy and show the real cause of loss or damage and also, he should be

able to prove that the loss or damage was not possible to be avoided or the cause falls under

the realm of Article 4(2)(q) of the Indian Carriages of Goods by Sea Act, 1925 which

states...189 Nevertheless, this provision falls under (any other cause) which means that, the

carrier is bound to provide a reasonable cause to obtain exemption as it is impossible to opt to

this provision without having or showing the actual cause of damage or loss.190 Conversely,

the carrier is also to prove any loss or damage that caused out of ‘perils of sea’ under the

exemptions stipulated under Article IV (2) (a) – (p) of the Indian Carriages of Goods by Sea

Act,1925 as allocation of prove in regards to the carriers duty and exemptions has been

problematic in Maritime legislation in India, which is why other countries, especially the

United Kingdom has accepted and implemented the Hamburg Rules, as it provided a standard

care that was required for the carriers and agents which can be observed by Article VI (1) of

the Hamburg Rule,191 which states…192 Additionally, the fundamental liability of a carrier is

                                                                                                                       
187
 ibid  (n162)  24.  
188
 ibid.  
189
 Any  other  cause  arising  without  the  actual  fault  or  privity  of  the  carrier  or  without  the  fault  or  neglect  of  the  
agents   or   servant   of   the   carrier,   but   the   burden   of   proof   shall   be   in   the   person   claiming   the   benefit   of   this  
exception   to   show   that   neither   the   actual   fault   or   privity   Under   the   English   Law,   there   is   a   no   clarity   as   to   who  
has   the   burden   of   proof   and   thus,   the   carrier   must   prove   his   innocence   or   the   person   claiming   the   cargo   must  
prove   it   but,   the   onus   is   on   the   cargo   owner.   Privity   of   the   carrier   nor   the   fault   or   neglect   of   the   agent   or  
servants  of  the  carrier  contributed  to  the  loss  of  the  damage.  
190
 ibid  (n  162)  25.  
191
 international  Convention  on  Carriages  of  Goods  by  Sea  (1978)  (Hamburg  Rules).  

49  
 
a supposed fault and he is liable till the time he can prove himself. The United Nation

conference on Carriages of Goods by Sea concluded in the Hamburg Rules stating…193 The

general concept of determining his responsibilities under Article V (1) of the convention is

similar to the burden established in Article Article IV (2) of the Indian Carriages of Goods

Sea Act 1925. Also, the basic obligation of the carrier under the Indian Carriages of Goods

Sea Act that imposes the express obligation of seaworthiness on the carrier is not similar to

the Hamburg Rules as it does not impose any express responsibility or liability to the carrier

in regards to seaworthiness.194 The only express obligation it imposes is the negligence of a

cargo damage and the reason being that the Hamburg Rule is based on the purpose of

establishing the carrier’s liability to adopt the basic principle of presumed fault and places the

burden of proof on the carrier when he has to prove that he had indeed acted with due

diligence. The Hamburg Rule has implemented changes in relation to the duty of care for

cargos unlike the corresponding rule of the Indian Carriages of Goods by Sea where the

expression ‘properly and carefully’ has been used to describe the care of the cargo for the

carrier, however, it has been argued by William Tetley that this is a slightly lighter degree of

care than properly and carefully of The Indian Carriages of Goods by Sea as the carrier is not

liable for damage occurring while the pre-loading time or after the discharge of goods

whereas The Hamburg Rules show considerable extension on the period of responsibility.

The Indian Carriages of Goods by Sea has a major topic or argument in regards to article IV

(2) (a) that states the act of negligence in the navigation or in the management of the ship it

has no equivalence under the Hamburg Rules. The allocation of burden of proof that
                                                                                                                                                                                                                                                                                                                                                                                 
192
 The  carrier  is  liable  for  loss  resulting  from  loss  of  or  damage  to  the  goods,  as  well  as  from  delay  in  delivery,  
if  the  occurrence  which  caused  the  loss,  damage  or  delay  took  place  while  the  goods  were  in  his  charge  as  
defined  in  Article  4,  unless  the  carrier  proves  that  he,  his  servants  or  agent  took  all  measures  that  could  
reasonably  be  required  to  avoid  the  occurrence    and  consequences.  
193
 It  is  the  common  understanding  that  the  liability  of  the  carrier  under  this  convention  is  based  on  the  
principle  of  presumed  fault  or  neglect.  This  means  that  as  a  rule,  the  burden  of  proof  rests  on  the  carrier  but  
with  respect  to  certain  cases,  the  provision  of  the  convention  modifies  this  rule.  
194
 Hannu  Honka,  ‘New  Carriage  of  Goods  by  Sea:  The  Nordic  Approach’.  In:    New  Carriage  of  Goods  By  Sea:  
The  Nordic  Approach  Including  Comparisons  with  Some  Other  Jurisdictions,  (1997)  36.  

50  
 
sustains the damage of cargo that was in the custody of the carrier presumes that the carrier is

at fault under the Hamburg rules. If in case of damages or delay the carrier is suppose to

show the cause has resulted out of certain exemptions such as the act of war, public

enemies, riots or any other similar cause under article IV (2) (d)-(p) of the Indian Carriages of

Goods by Sea Act. 195 There has also been modification in regards to exemption of fire under

article 5(4) of the Hamburg Rule, which also applies to the servants and agents of the carrier,

which is apparently different from the Indian Carriages of Goods Act. By this provision, the

cargo owner has the burden of proof to show that the negligence of the carrier or his agents

caused the damages or loss due to fire. It can also be stated that the carrier’s liability can be

relieved under the Hamburg Rules, which shall bring a balance principle in regards to

liability regime between the customer and the carrier. In ratifying the international

convention (Hamburg Rule), India is most likely to benefit in provisions that deals with both

the carrier and customer, as it lacks certain provisions that provides exceptions under the

Hamburg Rules.

4.3 Deviation

Under the Indian Carriages of Goods by Sea the carrier has a right to escape liability for

reasonable deviation which is stated under article IV (4)196. This deviation is stated to be

effective and justified under the Common Law and any unjustifiable deviation is considered

to be a fundamental breach of contract which is regarded serious in nature. Even the slightest

unjustified deviation shall lead to permission of election for the cargo owner and the charterer

as this has been the traditional view. Also, he can either treat the breach as a repudiation or
197
waive the breach that it may result to restriction for the action of damage. The carrier is

                                                                                                                       
195
Ibid  (n  162)33  
196
 any  deviation  in  saving  or  attempting  to  save  life  or  property  at  sea,  or  any  reasonable  deviation  shall  not  
be  deemed  to  be  an  infringement  or  breach  of  these  rules  or  of  the  contract  of  carriages,  and  the  carrier  shall  
not  be  liable  for  any  loss  or  damage  resulting  there  from.  
197
 Ibid(n  121)  13-­‐14.  

51  
 
exempted from liabilities under this provision regarding any loss or damages under the Indian

law. However, he is not permitted to deviate from the usual route and non-deviation of

voyage.

4.4 Exemptions under the Rotterdam Rules

The Rotterdam rules was drafted to provide a new maritime plus convention that could

discuss the exemptions under The Hague- Visby Rules. One of the main reason for the

Rotterdam Rule existed was to incorporate the exemption under The Hague- Visby Rules as

the Hamburg Rules had some absence regarding the exemptions. Article 17(c) of the

Rotterdam Rules provides that,198 it covers the same exceptions that is provided under Article

4(2) (a)-(q) of the Indian Carriage of Goods by Sea Act,1925. Having some deleted

exemptions regarding ‘nautical faults’ the Rotterdam Rules came closely under the scrutiny

of the CMI’s Internal Sub Committee in issue of transport law where it had strong chances of

retention. The exclusion in regards to the exemptions under Hague- Visby Rules was

considered to have a significant step towards consistency and remodelling the international

transport law. 199 This resulted in the omission of the exclusion of the Hague- Visby Rule as,

it had a substantial impact on the balance of risk that would arise in economic influence in the

insurance practice and a powerful position to change the allocation of risk between the carrier

and the cargo interest.200 The other deletions were for the exemptions that was for ‘act of

enemies’ which had some modifications done into this provision.201 The Rotterdam Rules

also has some unaltered and amended exemptions under Article 17 (3) where ‘act of god’ has

the same defences both in the Common Law and the Indian carriages of goods which serves

strict liability to the carriers. Similarly, ‘not discoverable by due diligence’ is also been
                                                                                                                       
198
 the  carrier  is  also  relieved  of  all  or  part  of  its  liability  pursuant  to  para  1  of  this  article  if  ,  alternatively  to  
proving  the  absence  of  fault  as  provided  in  paragraph  2  of  this  article,  it  proves  that  one  or  more  of  the  
following  events  are  caused  or  contributed  to  the  loss,  damage  or  delay.  
199
 Fransesco  Berlingieri,  ‘Basis  of  Liability  and  Exclusion  of  Liability’  [2002]  LMCLQ  336,342.    
200
 Professor  Stephen  Girvin,’  Exclusion  and  limitation  of  liability’  [2008]  14  JIML  6,524-­‐536.  
201
 Fransesco  Berlingeiri,  ‘Background  of  paper  on  basis  of  carrier’s  liability’  CMI  yearbook  2004,  140,144.  

52  
 
retained as it the alteration would not have made any difference. Respectively, the amended

exclusion in this rule is subjected to minor amendment as the rules often has same wording

on their provisions202 Which becomes problematic in certain circumstances so the rules had

particular kind of conditions that satisfied the liability of the carrier.203

4.5 New provisions under the Rotterdam Rules

The Rotterdam rules has three new exclusion that deals with loading, handling, stowing or

unloading Of the goods that is performed either by the carrier or performing party on behalf

of the shipper doc ship or consignee, covering the circumstances where there is an agreement

between the carrier and the shipper that the functions related to handling stowing or handling

of goods is ought to be performed by the shipper documentary shipper or consignee.204

Furthermore, a new exclusion that deals with a ‘reasonable measure to avoid or attempt or

avoid damage to the environment’ but this exclusion is considered to be peculiar addition for

cargo convention having no reasonable grounds for justification.205Lastly the new exclusion

‘rules relating to goods which may become a danger206’ or which ‘may be sacrificed for

common safety ‘207 which defences the carrier for his act in carrying out the powers

deliberated under these articles.208

This convention has attracted certain considerable debate which strikes questions on the basis

and burden of proof and other difficult areas where the rule to give a considerable wordings

in the provision of the Indian Carriages of Goods by Sea Act that shall provide potential

spearing points not only to India but also to all he traditional maritime countries.

                                                                                                                       
202
 See  article  17  (3  )b)  (c)  (d)  (e  )(f)  (h  )(k)  (l  )(m).  
203
 ibid  (n  200)  528.  
204
 ibid  (n  200)  530.  
205
 Ibid  (n  83)  493.  
206
 Article  15  of  the  Rotterdam  rules.  
207
 Article  16  of  the  Rotterdam  rules.  
208
 Ibid  (  n  200)  530.  

53  
 
4.6 The Multi Modal Transportation of Goods Act, 1993

The Multi Modal Transportation of goods Act, 1993209 was enacted to regulate business of

multi modal transactions and allocate the responsibilities and obligations to the multi modal

transport operators.210 Till the time the goods are in the possession of the operator, he will be

held liable for such goods. Moreover, he will be also liable for delay in the delivery of the

consignment and consequential loss for causing such delay if such delay or loss occurs whilst

he is in charge of the consignment.211 However, the Multi modal transportation operator can

exempt his liability if he can prove that the loss, damage or delay in delivery has caused

because of him or his agents or servant’s negligence.212

                                                                                                                       
209
 Door  to  Door  delivery  is  ensured  by  this  act  which  reduces  the  logistic  cost  to  the  exporter  marking  his  
products  more  competitive  in  international  market  for  the  basic  information  on  this  act  see  Kirti  S.  Parekh,  ed.,  
India  Development  report  1997  (New  Delhi  1997)  p  175.  
210
 Sec  13-­‐  20  of  Multi  Modal  Transportation  Act,  1993  deals  with  the  responsibilities  and  liabilities  of  the  multi  
modal  transport  operators.    
211
   Section  13  of  Multi  modal  Transportation  Act,  1993.  
212
 Section  16  of  Multimodal  Transportation  Act,  1993.  

54  
 
 CHAPTER 5

CONCLUSION AND RECOMMENDATION

This Research has successfully identified the fact that India’s maritime law seems to be

developed from different perspective whether it is modification or adoption of the Indian

Carriages of Goods by Sea Act, 1925. Having a good identification method in all legal

procedures and directly knowing who the carrier is, makes easier for trade to flourish in any

country.

A major accomplishment has been achieved in the area of minimizing obligation and

maximizing immunity of the carrier. But, there is a long way ahead for India to abide by

international standards. The Hague Rules which were enacted as far back as 1924, were not

made with technology in mind, and today with technology being so advanced and

modernized, the 1924 Hague Rules are not considered appropriate and modern in the practice

of today’s shipping industry, therefore in order to meet with international standards in trade,

the Indian legislative must take an initiative to adopt the international conventions and

comply with the modernization of technology used in shipping today. As time has

progressed, EDI has become so common in use that international countries such as Canada,

Spain, and the USA have become hesitant in trading with India at international levels as these

rules are controversially and subjectively considered outdated, by the leading major maritime

countries.213 Besides, Cargo owners do not enjoy the same level of rights in India as compare

to other countries that have adopted the international conventions. Currently, 25 countries are

party to Rotterdam rules including the United States, which is the third largest trade partner

of India.214 However, the US has not ratified neither the Hague-Visby nor the Hamburg rules,

                                                                                                                       
213
   Greece,  The  united  states  of  America,  China,  The  United  Kingdom,  Japan,  Germany.  
214
 file:///C:/Users/wahid/Downloads/SSRN-­‐id2172335.pdf  

55  
 
but the country controls twenty-five percent of the world trade. Having considered that 21st-

century development India must think of adopting the Rotterdam rules.

However, in the national levels measures has been taken to improve the situation of the

carriers and enhance the laws related to the Carriages of Good by Sea Act. Indian Minister

for Shipping mentioned Nitin Gadkari mentioned that ‘new green field ports will be coming

up at Vadhavan, near Dahanu in Maharashtra, Colachal near Kanyakumari in Tamil Nadu

and Sagar Island in West Bengal, entailing an investment of Rs 20,157 crores.’215

The Hague- Visby Rules met the needs of the shipping industry and merchant community

only after the late fifties when it was felt that there should be an amendment to these rules.

Although, India after enacting the Carriage of Goods Act, 1925 adopted a number of

provisions of The Hague-Visby Rules but, India did not ratify all of the provisions of any

other International Conventions such as the Hamburg Rules, Rotterdam Rules and The

Hague-Visby Rules expressly. It had however, ratified few provisions of all these

conventions impliedly. There is no strict implementation of these provisions in the Indian

Maritime Law. Whenever a dispute arises, the domestic laws prevailing in India applies such

as The Indian Penal Code, The Indian Contract Act, The Evidence Act, The Code of Civil

Procedure and the Code of Criminal Procedure etc. The majority of the International

Conventions and Treaties remains unaffected because of the dominance of the domestic law

in India. The Hague- Visby Rules is one of the prominent Rules in the International Maritime

scenario thus, the features of these Rules attracts most of the countries across the globe. On

the other hand, the Rotterdam Rules and Hamburg Rules are well-framed Rules but, most of

the countries have though ratified but has not adopted these Rules fully. Thus, the fully

accomplished nature of The Hague –Visby Rules surpasses the Rotterdam and Hamburg

                                                                                                                       
215
 ‘Indian  Maritime  Development  Can  Create  10’  (Marine  Link)  
<http://www.marinelink.com/news/development-­‐maritime406909.aspx>  accessed  24  May  2016.  

56  
 
Rules in many grounds. Shipping is one of the biggest sector of trade in India and hence, the

various provisions set out in these Rules provides a better rapport between the customers and

the cargo owners. These Rules plays an important role in providing exemptions to the cargo

owners in case of loss or damage caused not because of their fault. Although these Rules sets

outs different rights of the carriers, the rights which are entitled to the carriers in other

countries are not similar and has minor differences with that of India. The reason behind this

is, the nonadoption of these Rules fully as a part of the implementation process. As

mentioned earlier, the Hamburg Rules which was adopted by the England provided a great

amount of rights and immunities and also included provisions with regards to the allocation

of burden of proof. These Rules sets out various important provisions for the benefit of the

carriers and the cargo owners. The Rotterdam Rules on the other hand is the newly framed set

of Rules adopted by many countries including U.S. But, India have not yet ratified the

Rotterdam Rules and also has rejected establishment of commercial certainty and

harmonization of universal regimen of maritime transport. However, there is no such urgency

seen in ratifying the Rules right now as without ratifying these Rules, India is one of the top

20 maritime countries in the world but, in future efforts must be taken for ratifying the Rules

in case of emergency by creating awareness and developing the infrastructure for free and

uninterrupted trade.216 This dissertation in summary sees not much of loopholes with respect

to the carrier’s liability in the contract for carriages of goods by sea and therefore proposes

additional recommendations for improvement with reference to the English Law and other

elected jurisdiction. Therefore, this research argues that, the obligation of the carrier and their

liability to avail the exceptions providing sufficient rights to the cargo owners that shall not

harm the customers, it is recommended that Indian Carriages of Goods by Sea should take

                                                                                                                       
216
 K  Jha,  ‘The  Rotterdam  Rules-­‐  Should  India  Ratify?’  (2014)<  
http://www.rotterdamrules.com/sites/default/files/should%20india%20ratify.pdf>accessed  25th  
may  2016.

57  
 
more pro active approach in regards to the contract under the carriages of goods by sea which

shall strengthened the principle of the carrier’s liability in the Indian jurisdictions and the

courts will not be restrained and confined to the interpretation of law.

58  
 
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