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
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
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
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
In the ancient times, oceans were freely used for transactions arising out of
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
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
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.
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
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
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.
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
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.
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
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.
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
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
[The Rafaela S] where, there was controversy regarding if a
straight Bill of Lading would qualify as a Bill of Lading or similar document
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
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
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
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
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
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
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
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
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
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.
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
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
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
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
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.
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.
- Dr Theodora Nikaki, The fundamental duties of the carrier under the
Rotterdam Rules  14 JIML6,512.
- Dr. Ram N. Sharma, An Introductory Note on Carriage of Goods by Sea Act,
1925 (2015) ,Vol 4, Issue 5 IJSR 688
- A 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
3 may 2016
- Stephen Girvin, Carriage of Goods by Sea (2nd edition, Oxford
University Press 2011) 117
- Article 1 (a) Hague-Visby Rules
- Article 1(1) Hamburg Rules defines
- Article 1 (a) of the Indian Carriages of Goods by Seas Act, 1925
- Alexander von Ziegler, The liability of the contracting carrier vol
- (1959) AC 589
- (1966) 2 Lloyd's Rep 53
- 2011 EWHC 892 COMM
- 2005 UKHL
- Article 3 R4 of the Hamburg Rules
- 1876 1 QBD 337
- AIR 1982 Kerela 127
- (1950) 2 DLR 369
- (1876) 1 CPD 423 CPA
- AIR 1987 Kerala 62
- Article 3(1) of Indian Carriages of Goods by Sea Act, 1925
- Article 13 of The Multi Modal Transportation of goods Act, 1993
- www.marinelink.com/carriage of sea/2453