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Carrier’s Liability in Carriages of Goods by Sea in India

Shipping has always been the oldest mode of transport in India. It has also highly benefited the International Trade. In order to flourish the International Trade there must be an involvement in the transaction of goods by sea between a buyer in one country and seller in the another country. The carrier plays a very significant and important role in this contract and it is necessary to understand its involvement in the marine contract in regards to his obligations and immunities.

Delivery of goods is the one of the most significant obligation of carriers and a core issue about Carriages of Goods by Sea. The carrier's obligations under the contract are to be discharge after the delivery of goods is complete.

The law governing the carrier's liability has existed for a considerable period. This article aims to assimilate the characteristics of the existing regime of liability that are enforced in the International Carriages of Goods by Sea.

The Hague Rules, the Hague-Visby Rules, the Hamburg Rules, the Rotterdam Rules and the Indian Carriages of Good by Sea Act governs the carrier's rights and liability in carriages of goods/products by sea. However, India even today is governed by the Bill of Lading Act, Carriages of Goods by Sea Act and the Multimodal Transportation of Goods Act, that contains the general statutes such as Contract Law etc.

The Constitution of India is the supreme law of the land, and it functions with the Common Law Rules and also incorporates the Hague Rules.
This article also discusses the benefits of ratification of the Hague-Visby Rules, the Hamburg Rules, the Rotterdam Rules by India and the scope of improvement of the rules that governs the carrier's obligations and adoption of more by which we can expect positive changes and development in the India's maritime.

Shipping and Seaborne trade is the oldest form of International Commercial trade in India and India is considered to be one of the foremost maritime countries in the world.
In the ancient times, oceans were freely used for transactions arising out of International trade.

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.(i)

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

Thus, this act governs the shipment of goods carried by national coastal vessel within the country and goods carried by foreign going vessel.(ii)

A contract for Carriages of Goods by Sea comes into effect only by issuing a Bill of Lading under Bill of Lading Act, 1856.

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 the extent of liability of a person in case of the damage.

Thus, to put an end to this problem, the conduct of the parties is governed by the Carriage 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.

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 multi modal transportation.

The legislation's which govern the multi modal transportation of goods by Sea in India are:

  • The (Indians) Bills of Lading Act of 1856
  • The Carriages of Goods by Sea Act of 1925
  • The Merchant Shipping Act of 1958 and;
  • The Marine Insurance Act of 1963.(iii)

In Addition, to the provisions of Carriages of Goods by Sea Act in India various other provisions are 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.

Moreover, in India, the Multi-Modal Transportation of Goods Act administers the multi modal transportation of goods, 1993, which was recently amended in the year 2000.

Definition of 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.(iv)

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.

The Carriages of Goods by Sea has various conventions that define the carrier in certain ways, as it is necessary to know as to who is a carrier and what purposes does it serve in the Rules. Although the carrier's definition has not much of difference in the conventions. The Hague-Visby Rules defines carrier as the person who convinces the owner or the charterer or who enters into a contract with a shipper.(v)

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.
This particular convention has also defined an actual carrier as a person to whom the enactment of the carriage of goods, or part of the carriages has been delegated by the carrier and made any other person to whom such performance has been entrusted.(vi)

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.

In India, 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.

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 circumstances and commercial position of the vessel.

The Indian Carriages of Goods by Seas Act, 1925 defines carrier as the owner or the charterer who enters into a contract of carriages with a shipper.(vii)
As India has embodied The Hague Rules that is relatively same as the English carriages of Sea Act. 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 Rule, which defines the difference between the carrier and actual carrier.

The international conventions that define the carrier in certain ways do not apply in India, as they have not adopted the International Conventions. This reflects 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.

Obligations and Liabilities of Carrier

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 in equity 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 1968 has been ratified by most of the countries and based on this international regime the adaptation of national legislation.(viii)

In comparison to Common Law, the Hague-Visby Rules has lessened the obligations of the carrier's 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 Maxine Footwear Co Ltd v Canadian Marine Ltd(ix) 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.

In the case of Albacora SRL v Westcott and Laurence Line(x) the House of Lords held that a part from the term carefully, the term properly also adds to the standard of care expected from carriers and ship-owners under Article III, R2 of the Hague-Visby Rules.

Lord Reid defined the meaning of Article III R2:
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 as seen in the case of Milan Nigeria Ltd v Angeliki B Maritime Co.(xi)

The responsibilities of the carrier are dependent upon his duties. The main duty of a carrier 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.

1. 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. 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 vs British Indian steam navigation co(xii),:
it 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.

Under the Indian Carriages of Goods by Sea Act 1925 Article 1(b) the contract of carriages only applies to contract 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 title or Bill of Lading governs the relation between a carrier and a holder.

The question of whether a straight Bill of Lading is:
any similar document of title arises in the case of JI Mac William Company Inc v Mediterranean Shipping Company SA [The Rafaela S] 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.

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.(xiii)

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 the demand their rights, since the developed countries were powerful enough to attain legislation which adjusted a fair balance in their favour. 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 carrier is presumed liable for any loss or damage endured by the cargo owner, until he is able to prove his defense. The Hamburg Rule 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.(xiv)

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.

However, there are some modifications 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.

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.

The carrier, in the case of any 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.

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.(xv)

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.

2. Exercise due diligence to keep the ship sea-worthy and care for the goods

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.

In Kopitoff v Wilson(xvi), 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

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.

Rights and immunities
They are stated in the article of the Indian Carriages of Goods by Sea Act 1925, and Article IV, R1. 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.

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.

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.

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 be responsible for loss or damage arising or resulting from 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.

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

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.

In addition, where the primary objective of the vessel is safety, it is irrelevant that the negligent conduct also affects the cargo. It is also observed in the Canadian Case of Kalamazoo Paper Co v CPR Co,(xviii) 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.

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.

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.

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.

Kerala High Court in a certain case simplified the word perils, danger and accidents of these or other navigable waters appearing under Article IV (2) (c) 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.

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 Hague- Visby Rules, this exception denotes to unnatural accidents such as incident soccurring beyond the control of a human being and popularly known as act of god. In the case of Nugent v Smith(xix) where James LJ stated that ...Conversely, the carrier cannot relyon act of god if the damage could be prevented and any human activities have occurred which resulted in the damage or loss.

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 In a leading case of General Traders Ltd and another v Perce Leslie (India) Ltd., and others(xx) 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.

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.

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 contract, until the goods are unloaded from the shore.

The relationship between the duty of the carrier and the 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.

Burden of proof
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.

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).

Similarly, in The Hague- Visby rules, 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).

The Indian Carriages of 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.(xxi) Also, the carrier 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 ...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.

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, which states Additionally, the fundamental liability of a carrier is supposed fault and he is liable till the time he can prove himself.

The United National conference on Carriages of Goods by Sea concluded in the Hamburg Rules stating The general concept of determining his responsibilities under Article V (1) of the convention is similar to the burden established in 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.

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 is the damage of the 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.(xxii)

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.

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). 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 waive the breach that it may result to restriction for the action of damage.

The carrier is 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

The Multi Modal Transportation of Goods Act, 1993

The Multi Modal Transportation of goods Act, 1993 was enacted to regulate business of multi modal transactions and allocate the responsibilities and obligations to the multi modal transport operators.

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 while he is in charge of the consignment. (xxiii)

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

Since, India's maritime law seems to have been 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 is the carrier of the ship would make it easier for trade to flourish in any country. 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.

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. Indian Minister for Shipping Nitin Gadkari has mentioned that new green field ports will be coming up at Vadhavan, near Dahanu in Maharashtra, Colachal near Kanyakumari in Tamil Naduand Sagar Island in West Bengal, entailing an investment of Rs 20,157 crores.(xxiv)

There is no strict implementation of the provisions of Hamburg Rules, Rotterdam Rules and The Hague-Visby Rules expressely 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.

Shipping is one of the biggest sector of trade in India and hence, the various provisions set out in the Hamburg Rules, Rotterdam Rules and The Hague-Visby 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.
It has been identified that the obligation of the carrier and their liability to avail some of the exceptions providing sufficient rights to the cargo owners that shall not harm the customers, and it is also recommended that Indian Carriages of Goods by Sea should take more proactive approach in regards to the contract under the carriages of goods by sea which shall strengthened the principle of the carrier's liability in India and the Indian courts will not be restrained and limited to interpretation of law.

  1. Dr Theodora Nikaki, The fundamental duties of the carrier under the Rotterdam Rules [2008] 14 JIML6,512.
  2. Dr. Ram N. Sharma, An Introductory Note on Carriage of Goods by Sea Act, 1925 (2015) ,Vol 4, Issue 5 IJSR 688
  3. A Rajkumar S.Adukia, A brief study on Carriages Law and Multi Modal Transportation of goods 3 may 2016
  4. Stephen Girvin, Carriage of Goods by Sea (2nd edition, Oxford University Press 2011) 117
  5. Article 1 (a) Hague-Visby Rules
  6. Article 1(1) Hamburg Rules defines
  7. Article 1 (a) of the Indian Carriages of Goods by Seas Act, 1925
  8. Alexander von Ziegler, The liability of the contracting carrier vol 44:329
  9. (1959) AC 589
  10. (1966) 2 Lloyd's Rep 53
  11. 2011 EWHC 892 COMM
  12. 2005 UKHL
  14. Article 3 R4 of the Hamburg Rules
  16. 1876 1 QBD 337
  17. AIR 1982 Kerela 127
  18. (1950) 2 DLR 369
  19. (1876) 1 CPD 423 CPA
  20. AIR 1987 Kerala 62
  21. Article 3(1) of Indian Carriages of Goods by Sea Act, 1925
  23. Article 13 of The Multi Modal Transportation of goods Act, 1993
  24. of sea/2453

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