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6â Common law obligations of the carrier |
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(iii)â Pro rata freight
Pro rata freight will be used where the goods have been carried part of the voyage, but the goods have not been able to reach their destination due to circumstances beyond the ship-owner’s control. The cargo-owner must voluntarily agree to accept the goods at some alternative location.97
(iv)â Dead freight
When the charterer fails to provide a full cargo he is obligated to pay dead freight to the carrier. This is usually calculated as the freight which would be payable minus the charges for loading and unloading. The ship-owner is under an obligation to try and mitigate his losses by finding another cargo to fill the space.98
(v)â Back freight
Back freight is the sum payable to ship the goods back to the port of origin when the goods are refused on arrival. The reason for this refusal can include the outbreak of war, strikes or the cargo-owner’s refusal to take delivery.
Q19 What are the advantages and disadvantages of using advanced freight?
6â Common law obligations of the carrier
(a)â Seaworthiness
The carrier is under an obligation at common law to make the ship seaworthy. This obligation is absolute, meaning that the owner of the vessel will be liable regardless of fault. The obligation will be assessed in light of the nature of the voyage as well as the cargo being carried on board the vessel. The state of the vessel is linked to its ability to carry the cargo. In Tattersall v. National Steamship
Co.,99 a cargo of cattle was shipped from London to New York. When the cattle contracted foot and mouth disease on board the ship, it was found that this was as a result of an earlier voyage where the animals on board had carried the disease. Due to negligence on the part of the defendants, the ship was not cleaned and disinfected properly. It was held that these actions resulted in the ship being unseaworthy.
Unseaworthiness can also be caused by the incompetence of the crew if they are not trained or supervised properly.100 The carrier is also required to have all necessary documentation in order to render the vessel seaworthy. In Cheikh Boutros Selim El-Khoury v. Ceylon Shipping Lines (The Madeleine),101 documentation to certify the ship had been fumigated was not issued until after
â97
â98
100
101
Metcalfe v. Britannia Ironworks Co. (1877) 2 QB 423, 427.
The Storviken [1927] 2 KB 99.â 99â (1884) 12 QBD 297.
Standard Oil v. Clan Line Steamers [1924] AC 100. [1967] 2 Lloyd’s Rep. 224.
264 Carriage of goods by sea
the date of delivery of the vessel had passed, which resulted in the vessel being unseaworthy.
The carrier’s duty as to seaworthiness will attach at the time of loading until the ship has sailed, it is not a continuous duty. The burden will be on the claimant to prove the carrier breached his duty as to seaworthiness.102
If the party alleging unseaworthiness is able to prove causation, the most common remedy available to the parties will be the award of damages. Termination of the contract will not be available unless it amounts to frustration of contract.103
(b)â Deviation
The carrier is under an obligation at common law not to deviate from the agreed route without lawful justification. This rule is justified on the basis that the car- go-owner will not be protected by his policy of insurance on the goods if the vessel deviates from the agreed route. The insurer will fix a premium based on the facts disclosed by the owner of the policy, therefore some routes will incur a higher risk of loss or damage to the vessel or goods. If the ship-owner breaches his obligation not to deviate he will be unable to rely on the excepted perils. If there is no expressly agreed route, it will be the usual geographic route taken from the port of loading to port of discharge.104
At common law it is permissible in some circumstances to deviate from the agreed or usual route. The first of these is where the deviation is for the purpose of saving life; this can include saving property if it is in the course of saving lives.105
It may also be necessary to deviate from the agreed or usual route where the purpose is to avoid danger to the vessel or to the cargo.106 Deviation without lawful justification will entitle the party to terminate the contract.107
(c)â Reasonable dispatch
The carrier is under a duty to perform his contractual obligations with reasonable dispatch. This means that the vessel will proceed on the voyage, load and discharge at the time agreed or within a reasonable time. A breach of the duty to proceed with reasonable dispatch will be remedied by the award of damages. However, if the delay is for an extended period of time, this could amount to frustration of the contract. In Freeman v. Taylor,108 a vessel had been chartered
102â McFadden v. Blue Star Line [1905] 1 KB 697.
103Hong Kong Fir Shipping v. Kawasaki Kisen Kaisha [1962] 2 QB 26, CA.
104Reardon Smith Line v. Black Sea and Baltic General Insurance [1939] AC 562, HL.
105It must be for the primary purpose of saving life. See Scaramanga v. Stamp (1880) 5 CPD 295, CA.
106Phelps, James & Co. v. Hill [1891] 1 QB 605, CA.
107‘Held cover’ insurance policies have made this less of an issue.
108(1831) 8 Bing. 124.