with respect to the goods in a port in a Contracting State; and ( b ) The occurrence that caused the loss, damage or delay took place: (i) during the period between the arrival of the goods at the port of loading of the ship and their departure from the port of discharge from the ship; (ii) while the maritime performing party had custody of the goods; or (iii) at any other time to the extent that it was participating in the performance of any of the activities contemplated by the contract of carriage. 2. If the carrier agrees to assume obligations other than those imposed on the carrier under this Convention, or agrees that the limits of its liability are higher than the limits specified under this Convention, a maritime performing party is not bound by this agreement unless it expressly agrees to accept such obligations or such higher limits. 3. A maritime performing party is liable for the breach of its obligations under this Convention caused by the acts or omissions of any person to which it has entrusted the performance of any of the carrier’s obligations under the contract of carriage under the conditions set out in paragraph 1 of this article.
16 4. Where and to the extent that both the carrier and the actual carrier are liable, their liability is joint and several. 5. The aggregate of the amounts recoverable from the carrier, the actual carrier and their servants and agents shall not exceed the limits of liability provided for in this Convention. 6. Nothing in this article shall prejudice any right of recourse as between the carrier and the actual carrier. 4. Nothing in this Convention imposes liability on the master or crew of the ship or on an employee of the carrier or of a maritime performing party. 9. Notice of loss, damage or delay Under the Hague-Visby Rules the notice must be given before or at the time of delivery and, if the loss or damage is not apparent, within three days of delivery. Under the Hamburg Rules the notice must be given not later than the working day after delivery or, when the loss or damage is not apparent, within 15 days after delivery. Both Rules provide that failing such notice delivery is prima facie evidence of delivery of the goods as described in the bill of lading or transport document. The Rotterdam Rules provide that the notice must be given before or at the time of delivery and, if the loss or damage is not apparent, within seven days of delivery. They then regulate the consequence of the failure to give such notice by providing that the failure does not affect the right to claim compensation and the allocation of the burden of proof set out in article 17. This wording is not satisfactory, because the actual intention was to make clear that the notice – and not the failure to give it – does not affect the allocation of the burden of proof. In other words the notice does not relieve the claimant of the burden of proving that the loss or damage occurred when the goods were in the custody of the carrier.
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- Fall '16
- Ir. Deni Faisal Mirza, M. M
- Contract Law, The Carrier, Bill of lading, Commercial item transport and distribution, Hague-Visby Rules, Rotterdam Rules