Carriage of Goods Bye Sea
(Draft) Coursework Assessment 2005-2006
Freddie voyage chartered The Floater from Sinkers Ltd, to carry two
large consignments of cricket balls from Southampton (the UK) to New
York (the USA). Freddie had sold one of the consignments to Kevin and
the other to Ian, both sales being on c.i.f. terms. The charter was on
a standard voyage charter form and included an English law clause.
(Both Kevin and Ian have bought the cricket balls on behalf of their
local cricket clubs, ?the clubs?.) The charter incorporated the
Hague-Visby Rules.
The cricket balls were shipped and the master signed a clean bill for
each consignment. Both bills included a clause which said ?all terms
as per charterparty?, and both had to be presented to the carrier for
the goods to be released. The bills made no mention of the Hague-Visby
Rules. One bill named Kevin?s club as the consignee and the other
Ian?s club as the consignee and Freddie transferred the appropriate
documents to Kevin and Ian.
The ship proceeded to New York where she berthed.
Ian presented his club?s straight bill to the carrier and received the
appropriate consignment. Unfortunately, an inspection of the cricket
balls showed that many had been badly damaged on the voyage. Ian has
obtained a statement from the master who admitted that a small fire
had started in one of the ship?s holds, in which the cargo consigned
to Ian?s club had been stowed. This fire had caused more damage than
would be expected due to the master and crew not being properly alert
to what was happening on board.
When Kevin arrived to collect his club?s consignment, the master told
him that it had already been given to someone pretending to be Kevin?s
agent. This impostor had been most persuasive, and had managed to
trick Freddie into instructing the master to release the goods without
presentation of the bill. It transpires that reaching the berth and
unloading of the goods took longer than expected and the vessel had
gone onto demurrage. Freddie, being to keep demurrage to a minimum had
persuaded the master to release the goods (to the imposter) without
presentation of the bill. The master had been unhappy to do this, but
had complied with Freddie in return for the promise of indemnity from
Freddie.
There was further bad luck for Ian?s and Kevin?s respective clubs.
Sinkers have informed Kevin and Ian that their clubs are liable for
accrued demurrage, on the basis that they are the ?lawful holders? of
the straight bills and that the ?all terms as per charter clause? put
them on notice of their liability to make such payment. It appears
that Freddie is in financial difficulties, which has made Sinkers
think that they should also proceed against the clubs in respect of
their claim for the demurrage.
Answer ALL questions.
The marks for the questions will be awarded for overall merit and will
not be divided equally between each one.
1. Can Sinkers claim demurrage against the cricket clubs?
2. Ian?s club is anxious to sue Sinkers for loss and damage to his
goods but is anxious, as his club did not negotiate a contract of
carriage with Sinkers. What is your advice on this issue?
3. Sinkers have said that their straight bill excludes all loss and
damage however it may occur, and that these terms will govern any
action brought by Ian?s club. Ian has sought your advice on this
matter.
4. Will Sinkers be liable to Kevin?s club in respect of their cargo?
If so, will sinkers be able to claim the indemnity promised by Freddie
for instructing the master to release the goods without production of
the bill of lading?
THE END |
