Svante O Johansson AMD Forum Marrakesh November 6 2009 2 Summation of the Carriers Liability in RR Personal as well as vicarious liability for Loss Damage and Delay During period of responsibility ID: 596033
Download Presentation The PPT/PDF document "1 The Rotterdam Rules and General Averag..." is the property of its rightful owner. Permission is granted to download and print the materials on this web site for personal, non-commercial use only, and to display it on your personal computer provided you do not modify the materials and that you retain all copyright notices contained in the materials. By downloading content from our website, you accept the terms of this agreement.
Slide1
1
The Rotterdam Rules and General Average
Svante O. Johansson
AMD Forum
Marrakesh November 6, 2009Slide2
2
Summation of the Carrier’s Liability in RR
Personal as well as vicarious liability for Loss, Damage, and Delay During period of responsibilityFrom place of receipt to deliveryBased on (qualified or confused) presumed liability
Not Liable if the
cause or one of the causes is not attributable to fault of the carrier or anyone he is responsible for,
circumstances listed in 17.3 (a) to (o) caused or contributed to the damage. (Nautical fault deleted)
Liable notwithstanding 17.3Fault on carriers side contributed to damage,Event not in 17.3 contributed and no rebuttal,Unseaworthiness and unable to show due diligence.If relived only liable for causes attributable to his own fault.Slide3
3
Fault concept and General Average
Fault is outside the scope of General AverageArticle 84 RRNothing in this Convention affects the application of terms in the contract of carriage or provisions of national law regarding the adjustment of general average.
Rule D YAR
Rights to contribution in general average shall not be affected, though the event which gave rise to the sacrifice or expenditure may have been due to the fault of one of the parties to the adventure; but this shall not prejudice any remedies or defences which may be open against or to that party in respect of such fault.Slide4
4
No contribution to a party at faultEven if no loss or damage occur the carrier, as it often is, might be at (actionable) fault
The test is whether the owner, if the GA-act had not been instigated, would have been liableExemptions that exclude fault
No legal responsibility arises
“Fault of master always excepted”
Excluding liability (also only loss or damage)
Art. 17.3 RRNautical fault exemption not includedExemptions or limitations that do not exclude faultLimited monetary liabilityNotice of claimLimitation of actionSlide5
5
Empiric (but non scientific) dataCauses to 100 cases of General Average Statements
Grounding 38Collision 19
Engine damage 16
Springing a leak 6
List 4
Fire 16Other causes 3 100Slide6
6
Consequences GA caused by groundingGrounding
Human factors 66 %Mostly considered as nautical faults
Nature of fairway or other ship 25 %
Remaining (technical faults or unknown) 8 %
Owner can not rely on nautical fault
Multiple factors causes the groundingRecover part of contributionNot likely to instigate litigation apart from exceptional circumstancesSlide7
7
Consequences GA caused by collisionCollision
Normally attributable to nautical faultIf nautical fault, the owner is at fault and cannot recover from cargo interest.
However, GA can be adjusted and the owner can collect contribution from cargo in proportion to the fault of the other ship. Slide8
8
Consequences GA caused by Engine damage
Engine damageTechnical failureHuman factors
Fire
On the face of the facts the owner seems to have a good chance to collect contribution from cargo.
However,
Was the ship seaworthy according to 15.5 RR? The cargo interests are, and will be alert, when an engine damage occurs Request for explanations What about contributing events in 17.6 RR?Probably little more difficult. Seaworthy through out the entire sea leg might also influence.Slide9
9
Consequences GA caused by springing aleak or list
A vessel that springs a leak on the high sea normally will be considered unseaworthyOwner must prove either
Intervening circumstances, or that he or she has
exercised due diligence in making and keeping the ship seaworthy
If he succeed contribution can be collected. As today?
List Why developed the list?In many aspects similar to springing a leakNB! Jettison of goodsCarrier not liable even if unseaworthiness shown?Art. 17.3(o) and 17.5 cf. art. 16
Can the owner collect contribution?Slide10
10
Challenges
Hard to foresee if and to what extent there will be any fault on the owner ‘s side according to Rotterdam Rules.The Rotterdam Rules will most likely result in a decline in the numbers of declared General Averages.Will the General Average disappear because of Rotterdam Rules?