|
However, this case was widely criticised [82] and judges in England were reluctant to follow it. In Adler v Dickson and Another[83] , Lord Justice Denning reviewed the proposition of the existence of a collateral contract between the cargo owner and persons employed by the carrier. He held that nothing seemed to him existing but a “legal fiction”. Nevertheless, in the Elder case[84] , the cargo owner implied he agreed to exempt the servants’ liability by insuring them against the loss or damage. He concluded that servants could be entitled to the protection under the exemption clauses of the contract of carriage where there were express words or necessary implication.[85] In the Adler case[86] , there were no express words and the passenger’s assent which could be inferred. The servants were not entitled to the protection of exemption clauses and therefore liable for the injury of the passenger. [87]
In Midland Silicones v. Scurttons[88] , the judgement of the Elder case [89] continued to be set aside. The stevedore was finally held not entitled to the benefit of the exception and therefore liable for its negligence on the grounds that it was not the party to the contract of carriage and that the carrier did not act as its agent. [90]
Carriers were worried about the far-reaching impact of Midland Silicones v. Scurttons and understandably inserted a clause into bills of lading which extended the immunity to their servants and agents. [92]
In the Eurymedon case [93], the Judicial Committee of the Privy Council confirmed the legality of the so-called “Himalayan Clause”. The stevedores are entitled to the protection of exception clauses under the bill of lading if the following conditions are satisfied:[94]
1. The bill of lading must make clear an intention to protect the stevedore.
2. It must also make clear that the carrier contracts for the stevedore’s protection as well as his own.
3. The authority of the carrier so to act or later ratification by the stevedore must be proved.
4. There must be consideration from the stevedore the protection extended to him.
We can conclude that under the Hague Rules, especially in the English jurisdiction, the cargo owner is entitled to sue a carrier’s servants in tort for the recovery of loss or damage to its cargo unless there is clear statement of being protected equally as the carrier in the bill of lading.
The Hamburg Rules article 7 (1) confirms the cargo owner’s right to sue the carrier in contract, in tort or otherwise, but it fills in the loophole under the Hague Rules of suing carrier’s servants instead of carrier who is entitled to the nautical fault defence by proscribing that[95]
If such an action is brought against a servant or agent of the carrier, such servant or agent, if he proves that he acted within the scope of his employment, is entitled to avail himself of the defences and limits of liability which the carrier is entitled to invoke under this convention.
Probably the interpretation of the words “servants”, “agent”, and “within the scope of his employment” will cause new problems. However, we must bear in mind that under the Hamburg Rules, there is no nautical fault defence for the carrier therefore it is basically liable for any wrongdoing of his servants.[96]
V ABOLITION OF THE NAUTICAL DEFENCE UNDER THE HAMBURG RULES.
The significance of the Hamburg Rules is that nautical fault defence which the carrier is entitled to under the Hague Rules, is removed. Article 5.1 reads as follows.
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 charges defined in Article 4.
This liability regime under the Hamburg Rules is completely based on fault. Some commentators said the Hamburg Rules are based on the civil law concept of presumed fault of while the Hague Rules are based on the common law concept of fault liability with some exceptions.[97] This might be right, but with regard to the nautical fault defence, the Hague Rules are not based on common law principle of fault at all. It actually departs from this principle.
The significant difference between the Hague Rules and the Hamburg Rules is that the carrier is vicariously responsible for the misconduct of its servants. As a matter of law, judges will be reluctant to make a distinction between what is carrier’s negligence (unseaworthiness of the ship) and what is the servants’ negligence (nautical fault), or between the failure to exercise the duty of care of the cargo and nautical fault. Like Gosse Millard Ltd. v. Canadian Government Merchant Marine Ltd, [98] judges may not have argued with each other whether leaving the hatch uncovered belonged to the negligence of management of the ship or lack of duty of care of the cargo. Under the Hamburg rules, no matter what the reasons are, the fact of leaving the hatch uncovered and causing the damage of the cargo is sufficient to hold the carrier liable since the negligence of the carrier’s servants was clear. Difficulties resulted from the separation of the liability between a carrier and its servants under the Hague Rules are significantly removed. In this regard, the Hamburg Rules make the liability regime of the carriage of goods by sea more certain and predictable and it is of positive meaning in reducing disputes and litigation.
Nevertheless, carriers can still escape liability for the loss or damage to the cargo if they can prove that they “took all measures that could be reasonably required to avoid the occurrence and its consequences” [99].
A What’s the Meaning of the “Reasonable Measures”
The style of wording of article 5.1 is derived from the Warsaw Convention[100] . Generally speaking, taking reasonable measures requires the carrier to “prove more than that they were not negligent”[101] . Many commentators tried to explain what is the difference between negligence and failure to take reasonable measures. C.C.Nicoll said the element of reasonable foreseeability might help mark the boundary. According to his theory, the carrier needs to take a step significantly to avoid the loss to qualify reasonableness while in negligence it is not required to have the same prescience.[102]
Gosse Millard v. Canadian Government Merchant Marine, Ltd [103] is probably a good case for addressing difference between negligence and failure to take reasonable measures. The issue at stake in this case was whether it constitutes a breach of contract if the cargo is delivered in a damaged condition. Mr. Justice Wright held [104] that “the words “properly discharge” in Art 3.2, mean, I think, “deliver from the ship’s tackle in the same apparent order and condition as on shipment,” unless the carrier can excuse himself under Art 4--- ”. From his point of view which was invoked by the appellate in Albacora S. R. v. Westcott & Laurance Line, Ltd. [105], it is a prima facie case of breach of contract if the cargo was in good order and condition when shipped and was in a damaged condition when delivery. The carrier shall be liable for the loss unless they can bring themselves with the immunities provided by the law. However, this claim was finally dismissed by the House of Lords. Lord Pearson held:[106]
It is not an obligation to achieve the desired result, i.e., the arrival of the goods in an undamaged condition at their destination. It is an obligation to carry out certain operations properly and carefully. The fact that goods, acknowledged in the bill of lading to have been received on board in apparent good order and condition, arrived at the destination in a damaged condition does not in itself constitute a breach of the obligation, though it may well be in many cases sufficient to raise an inference of a breach of the obligation.
|
