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$ amount liability under COGSA for common carrier?

$500 under Hague Rules or $1,000 under Hague-Visby Rules per package

What is the limitation period for filing claims against carriers according to the Warsaw Convention?

2 years

What is clause paramount in the Hague Rules?

Allowing parties to agree to above-deck carriage when otherwise deck carriage is excluded

Why, under COGSA, is the carrier liable for misdelivery even after he goods are dischared from its ship?

Because of law of bailment: The carrier remains a bailee of the goods until they are delivered to the holder of the bill of lading

Why is dealing with multimodal transport contracts an issue for the Hague Rules?

Because the Hague Rules and COGSA were enacted prior to the advent of containerization

Why should the exporter still contemplate obtaining insurance on its own behalf even if the terms of sale make the foreign buyer responsible?

Because the buyer or seller can neglect to obtain coverage or obtains too little, causing a major financial loss

When is seaworthiness ensured?

Before the ship departs from the port of shipment

What is the carriage contract?

Bill of lading that is issued by either a common carrier or a charter party

What were the Hague Rules enacted into law in the US as?

Carriage of Goods by Sea Act (COGSA

Who is an ocean bill of lading issued by carrier negotiated to?

Consignee

How can freight forwarders assume liability of a carrier?

In issuing documents like forwarders bill of lading

What are legs of transport?

Land, rail, ocean

What is the carrier liable for in the Warsaw Convention?

• An amount up to the declared sum unless it can prove that the sum is greater than the value to the consignor at delivery • Delays in transporting cargo unless it proves that it took reasonable measures to avoid the damage or that such measures were impossible to undertake

What kind of shipping company responsibilities did the Hague Rules establish?

• Limitation of liability to cap potential liabilities • Number of exemptions from liability

What is the difference between national laws and international conventions?

• National laws: define issues of title and negotiability • International conventions: impose the minimum duties of the carriers and provide limits to carrier liability

What kind of carrier responsibilities did the Hague Rules establish?

• Requirement to undertake due diligence in providing a seaworthy ship • To not deviate materially from the carriage contract • To provide shippers with the opportunity to declare a higher value for their goods

What is the main difference between the Hamburg Rules and the Hague/Hague-Visby Rules?

• The Hamburg Rules are more pro-shipper • Under the Hamburg Rules, carrier liability protections are automatically extended to the servants or third-party contractors of the carriers

What is the role of a non-vessel operating common carrier (NVOCC)?

• To consolidate cargo from numerous shippers into larger groups for shipment by an ocean carrier • Issue a bill of lading to each shipper

What is a common carrier?

A company that contracts with the public for transportation of goods or people. Ex. Commercial airlines, overnight courier services, and international shipping lines.

What is force majeure clause?

A standard clause in a marine contract exempting the parties from liability for nonperformance resulting from a condition beyond their control, such as government interference, wars, and acts of God.

What is containerization?

Allows a single container to be used in different modes of trainsit

When does the third party not need to be mentioned in contract under COGSA?

As long as the contract refers to a well-defined class of readily identifiable persons that it intends to benefit

When is seaworthiness determined?

At port of departure

Why are freight forwarders not liable to a shipper for anything that occurs to the goods being shipped?

Because a freight forward does not issue a bill of lading

What happens when the carrier is able to rebut a shipper's prima facie case under COGSA?

Burden shifts to shipper to show that the carrier's negligence, at the least, a concurrent cause of the loss

What does "tackle-to-tackle" mean?

It doesn't extend to losses that occur prior to loading or subsequent to discharge from a vessel.

) What remains as the paramount of the COGSA?

Ocean bill of lading

What is the limitation period under the Hamburg Rules?

Two years

How is the carrier's liability under COGSA Hague Rules determined?

1. An amount (under $500) per package is multiplied by # of packages listed or descried in the bill of lading 2. Carrier's liability may be based on the amount declared by the shipper on the bill of lading

What three functions does a freight forwarder serve for importers and exporters?

1. Arranging for the shipment of goods with carriers 2. Acting as a freight consolidator 3. Processing required documentation

How is the application of COGSA different in the UK from the US?

1. COGSA in the US applies to all shipments from and to US ports vs. COGSA doesn't automatically apply to shipments from a foreign port to the UK 2. COGSA applies to shipments from one port in the UK to another vs. Harter Act covers shipments from one US port to another unless parties agree to be governed by COGSA

What are 4 additional principles to determine a COGSA package?

1. Court should look to the parties' contractual agreement in the bill of lading 2. A COGSA package is the result of some amount of preparation for the purpose of transportation, which also facilitates handling 3. A container can be considered a COGSA package only in light of a clear agreement to that effect 4. When goods are placed in containers without being described as separately packaged, they are classified as "goods not shipped in packages" for COGSA purposes

What do the duties include as listed by COGSA?

1. General duty on the carrier to issue a bill of lading where receiving goods from the shipper 2. Bill must include basic information including leading marks provided by the shipper for the ID of the goods, quantity, weight, and condition

What three alternative legal regimes are there in ocean carriage?

1. International Convention for the Unification of Certain Rules Relating to Bills of Lading (Hague Rules) 2. Hague-Visby 3. United Nations Convention on the Carriage of Goods by Sea (Hamburg Rules)

What are the three areas where the common carrier is held to be fully liable for all damages?

1. Material deviation 2. Failure to give fair opportunity to declare a higher value 3. Misdelivery

What are the two concerns posed by containerization in relation to application of COGSA?

1. Multimodal transport raises questions about the continued relevancy and importance of the traditional ocean bill of lading 2. Can a container filled with packages of goods be itself considered a single package for purposes of calculating per package liability?

What are the 4 parameters of seaworthiness under COGSA?

1. Ship must be appropriate for the type of carriage 2. Ship must be properly equipped for the reception, carriage and preservation of the goods 3. Common carrier must staff the vessel with a competent crew 4. Carrier must properly and carefully load, handle, stow, keep, and discharge the goods carried

What procedural issues does any prospective plaintiff face once goods have been lost or damaged?

1. Who has the burden of proving damages and how can such proof be rebutted? 2. What parties have standing to sue the carrier?

What kind of exemptions does COGSA provide?

17 exemptions that fully exempt the common carrier from all liability for damage to or loss of the goods

What have courts generally decided on containers when determining packages?

A container cannot be considered a package

What does the marine insurance industry provide?

A variety of insurance policies to protect ship and cargo owners from an assortment of exposures including damage to goods, ship, others' property and liability for injury and health

What do multimodal transport operators do?

Also known as combined transport operators, arrange for the shipment of goods via different modes of transport by entering into separate contracts with the individual carriers

How can a carrier rebut a shipper's prima facie case under COGSA?

By establishing either that it exercised due diligence to prevent the damage t the cargo by properly handling, stowing, and caring for it in a seaworthy ship or that the harm resulted from one of the excepted causes.

How can the common carrier generally prevent a material deviation claim for above deck carriage?

By inserting a clause paramount in the bill of lading

What is each type of common carrier or carriage contract governed by?

By its own unimodal transport convention

How does a freight forwarder act as an agent to the shipper?

By negotiating a freight rate with the carrier

What is the right to make claim against the carrier limited by?

By procedural requirements: party must give notice of loss either at the port of discharge or at the time of receving the goods from the carrier. If loss isn't apparent at the time of receiving the goods, then notice must be given in writing within 3 days.

How can a shipper establish a prima facie case under COGSA?

By proving that the carrier received the cargo in good condition but unloaded it in a damaged condition

What is the liability of the carrier and associated companies affected by?

By which version is applied - Hague-Visby or Hague Rules

What is the difference between COGSA and the Hamburg Rules in terms of what they apply to?

COGSA applies only to shipments covered by a bill of lading whereas the Hamburg Rules apply to any contracts of carriage by sea

What is a shortfall of deviation under COGSA?

COGSA doesn't define deviation and only distinguished between geographic deviations and other quasi-deviations. Courts are hesitant to expand quasi-deviation doctrine beyond the unauthorized on-deck stowage of cargo case.

Where do COGSA and the Hamburg Rules stand with delay in delivery?

COGSA makes no mention of liability for a delay in delivery. The Hamburg Rules designate delay as an equal ground for recovery

What happens when the goods are not packaged for shipment?

COGSA provides an alternative known as the customary freight unit (CFU)

How can shipper claim for a loss with MTOs?

Can claim for a loss gainst MTO regardless of where during transport process damage occurred

What did the cargo have to do until the advent of the containerization of cargo?

Cargo owner typically would enter into a new shipment contract with a new carrier each time the mode of transport changed

Under COGSA, who is liable for damages occurred after being discharged from the ship but before it is released from sea terminal?

Carrier

Under COGSA, who is liable for misdelivery?

Carrier

What do the Hamburg Rules say about the burden in the case of loss?

Carrier fault is presumed

What does the carrier have to do under the International Chamber of Commerce's Rules for Multimodal Transport Documents?

Carrier must prove during which stage of the multimodal transport the damage occurred

What is a quasi-deviation?

Certain types of breach of contract of COGSA that deprives the carrier of the goods the benefit of the package limitation under COGSA. Leads to loss of all of carrier's exemptions and limitation of liability

What is a possible defense to a material deviation in the route?

Change resulting from an emergency such as mechanical failure or governmental intervention

What is the relationship between clause paramount and the Harter Act?

Clause preempts the application of the Harter Act extending coverage to shipments between US ports

How is value determined under Hague-Visby Rules?

Commodity exchange price, current market price, or the normal value of goods of the same kind and quality

What happens when the ship becomes unseaworthy after it leaves the port of shipment?

Common carrier remains protected under COGSA

What elements comprise a COGSA claim against a negligent carrier for lost or damaged goods?

Contract from breach of contract of carriage and tort from the breach of the carrier's duty of care

What does a deviation from the carriage agreement by restowage do?

Convert carriers into quasi-insurers liable in full for any damage incurred as a result

Who decided if the common carrier fulfilled its responsibility to give fair opportunity to shipper?

Courts examine the bill of lading

How effective is Q-clause in real life?

Courts have rarely granted an exemption from liability under the Q clause

What does clause paramount say about COGSA coverage?

Coverage is extended beyond tackle-to-tackle to the entire period that the goods are in the possession of the carrier. Also extends protection to all 3rd parties involved with the transport of the goods by sea including stevedores

What was the Harter Act designed for and what is it at its core?

Designed solely to regulate the liability of seagoing carriers. It is a maritime law at its core

How should carrier undertake due diligence in determining seaworthiness?

Due dili in the preparation and inspection of the ship

What do the duties that COGSA lists pertain to?

Duties of the carrier pertain to its issuance of bills of lading

What did the Harter Act prohibit?

Enforcement of broad exculpatory clauses incorporated into the standard bills of lading by the shipping industry

What is the common problem that courts face in assessing COGSA damages?

Existence of a number of different packages

What is an Inchmaree clause?

Extends the list of covered perils, usually to include losses due to negligence of the crew and damage arising from a latent defect.

Why are alternative arrangements made for delivery of goods under COGSA?

For delivery to someone not holding a bill of lading. Common carrier to release the goods to a consignee, not in possession of the bill of lading, upon the presentment of a bank guarantee

Where does the Harter Act remain in force?

For goods shipped from one US port to another US port

What is considered goods not shipped in a package under COGSA?

Freestanding cargo not enclosed in a box or crate

What is COGSA's application timeframe?

From the time goods are loaded onto the ship until the time the cargo is released from the ship's tackle at port

What is Q-clause exception in COGSA?

Grants the carrier a general exemption for any damages that arise from a cause that was not the actual fault of the carrier or their agents

What exceptions are made under the Hamburg Rules?

Hamburg Rules eliminate exceptions and provide a presumption of carrier liability for loss except in case of fire

What are common marine insurance policies?

Hull, cargo, liability

What should the bill of lading include?

Identification of goods, # of packages/pieces, Quantity or weight as furnished by shipper, Conditions of goods

When does a carrier lose the $500 protection under COGSA?

If a deviation from the specifications contained in its contract of carriage with the shipper amounts to more than a reasonable deviation

What is the exception ot the enforcement of arbitration clauses in bills of lading?

If a forum selection clause and a choice of law clause are used in tandem to prevent a shipper from pursuing its statutory remedies under COGSA

How can the carrier avoid liability under the Hamburg Rules?

If it demonstrates it took all measures that could reasonably be required to avoid the occurrence and its consequences

When is the freight forwarder liable?

If it selects a third party, such as sa common carrier or customs broker, who proves to be incompetent

When does the per-package limitation and 17 exemptions removed?

If losses occur because of failure to perform due diligence in providing a seaworthy ship, carrier's commission of a material deviation, or failure of the carrier to provide a fair opportunity for the shipper to declare a value above the per-package limitation. Then the common carrier becomes liable for all damages

In what situation could the district court dismiss a contract claim on the grounds that the party does not have standing?

If the party is not named in the bills of lading

In what case is above deck not an unreasonable deviation?

If the ship is one designed for above-deck containerized carriage or if on-deck stowage is for the purpose of safety

How should an ambiguity on a bill of lading regarding the number of COGSA packages be resolved?

In favour of the shipper

According to the air waybill, how should the claims be made for damages from delays in the transportation of cargo?

In writing within 21 days from the cargo delivery date

What are the two most popular extensions of the hull insurance?

Inchmaree clause and running down clause

What does contractual liability coverage include under protection and indemnity policy?

Includes protection against passenger liability, liability for lost and damaged cargo, pollution, and general average

What does a forwarder's bill of lading do?

Issued by forwarder, the forwarder assumes the liability of a carrier or possibly of a multimodal transport operator. Carrier liability extends not only to the actual carriers but also to contractual carriers

When can misdelivery occur under COGSA?

It can occur when a country's import documentation allows for such a release or when the receiving party and the common carrier make alternative arrangements.

What do the Hamburg Rules do to account for what COGSA fails to account for in terms of time frame of liability?

It extends the period of responsibility to include when the goods are in the control of the carrier but not on the ship

What is an air waybill?

It incorporates by reference the pertinent international carriage convention, namely, the Warsaw Convention.

What is a negative repercussion of having the freight forwarder act as agent?

It may bind the shipper to modifications made by the carrer to the standard carriage contract

What determines the application of different carriage liability regimes in an international transport of goods transaction?

Leg of transport, Existence of different legal regimes for a given mode of transport

What do the Warsaw Convention and the Hague Rules both limit?

Liability for the common carrier

What is the major benefit to the shipper for having a multimodal transport operator?

MTO issues a single transport document for the entire transport

How has ocean carriage become more efficient and reasonable?

Most bills of lading now reflect the practice of above-deck carriage by the incorporation of a clause paramount

What is hull insurance?

Most common property coverage to protect the owner or charter party from losses due to damage to the vessel or its equipment. Perils-only type of policy that covers only for losses resulting from expressly listed causes.

What is the Warsaw Convention?

Most important multilateral treaty governing the liability of air carriers

What did the court say about multimodal containers for the calculation of COGSA liability of the common carrier?

Multimodal containers are generally not to be considered as packages

What happens if anything happens to the goods during the voyage?

NVOCC is liable to the shipper because of the bill of lading that it issued

What are the 17 COGSA exemptions?

Neglect, Fire, Perils of the sea, Act of God, War, Public enemies, Arrest, restraint or seizure under legal process, Quarantine restrictions, Act or omission of the shipper or owner of the goods or their agents, Strikes, Riots, Saving life or property at sea, Inherent defect, Packing insufficiency, Marking insufficiency, Latent defects not discoverable by due diligence, Any other not actually of carrier's fault

What did the Court find arbitration clauses under COGSA to be?

Not a type of disclaimer or limitation of liability that is generally prohibited under COGSA and therefore not subject to attack under COGSA

What is the timelimit for notice of loss under Hamburg Rules?

Notice of loss reported within 1 working day after delivery, 2 year statute or limitation

What guidance do the Hague-Visby Rules provide in defining the word package?

Number of packages is where a container, pallet, or similar article of transport is used to consolidate goods, the number of packages or units enumerated in the bill of lading as packed in such article of transport

Where does the burden of demonstrating any deviation from what freight forwarders do in the maritime context?

On the party who would show such deviation

What is on-deck carriage in terms of material deviation?

On-deck carriage of containerized cargo is not a deviation if the carrier proves an established custom of such storage

What is a through bill of lading?

One by which an ocean carrier agrees to transport goods to their final destination

What is a charter party?

One who leases the entire ship from the ship's owner

What is the statute of limitations on the notice of loss under COGSA?

One year statute of limitations. The party suffering a loss must commence suit within one year of the delivery of the goods.

What is the Harter Act's application timeframe?

Period between the discharge of the cargo from the vessel and proper delivery. Carrier liable for caring for the goods before they are loaded and after they are unloaded from the ship.

Under COGSA, what relieves the shipper's initial burden of proving that it had delivered cargo in good condition to the carrier?

Presenting a clean bill of lading

What do the statements made regarding requirements of the bill say?

Prima facie evidence that goods were delivered to the carrier so carrier becomes a guarantor of the information provided by the shipper and placed on the bill of lading

What does failure to give notice of loss mean under COGSA?

Prima facie evidence that the goods received were as indicated on the bill of lading

What does 3rd party liability coverage protect under protection and indemnity policy?

Protects against damages caused to others on account of marine collision

What is through-transport policy?

Provides indemnification for 3rd party damage caused during inland transit

What is the running down clause?

Provides protection from liability for damages to another vessel caused by a collision with the insured ship

What does inserting a clause paramount in the bill of lading mean?

Shipper agrees to allow the common carrier to decide whether the goods are to be carried below or above deck

What can the shipper do to avoid the classification of a container as a COGSA package?

Shipper can request a detailed description in the ibll of lading expressly stating the number of packages within each container

Who has the burden to prove by providing the bill of lading as evidence when there's a shortage to quantity or not in the condition per bill?

Shipper or the party receiving goods

What does a freight forwarder do or not do?

Simply facilitates the movement of cargo to the ocean vessel

What are specialized companies also known as under COGSA?

Stevedore companies

What does COGSA say about restrictive procedural requirements or attempts to limit its duties and liabilities?

That it is null and void and of no effect

What happens when a freight forwarder selects someone to perform transportation services?

That selection fulfills the forwarder's obligations in the absence of proof that the selection itself was negligent

What is the most established and important of the international carriage conventions?

The Hague Rules

Who has the burden of proving that there was fair opportunity to declare a higher amount to be insured under COGSA?

The carrier bears the initial burden of producing prima facie evidence

What does the Warsaw Convention say about the damaged cargo?

The carrier must be notified immediately no more than 14 days after receipt.

What does the Warsaw Convention limit?

The forum where lawsuits may be initiated, including states that are parties to the convention and where the carrier is incorporated or has its principal place of business

What is the benefit of having the comprehensive general liability coverage?

The insured is provided with the luxury of having legal services paid for by the insurance company, even on claims where insurance coverage is suspect

What period of time does COGSA not cover unless otherwise specified?

The period of time when the goods are in the possession of the common carrier before loading and after discharge

What is the period of coverage under COGSA limited to?

The time when the goods are loaded on to the time they are discharged from the ship

Who do inland carriers contract with since multimodal or intermodal shipping containers emerged?

They contract not with the owner of the goods but as a subcontractor to the steamship line who has offered a complete transport package

What are the two types of material deviation claims under COGSA?

Those involving the above-deck carriage of goods and those involving a change in the expected route of the ship

How is liability coverage provided in marine insurance?

Through protection and indemnity insurance, offered through associations of P&I clubs.

Which policy of P&I insurance became popular with the advent of container transport?

Through-transport policy

When is the seaworthiness determined?

Time of departure

What was the purpose of establishing COGSA?

To achieve international uniformity and to redress the edge in bargaining power enjoyed by carriers over shipper and cargo interests by setting out certain duties and responsibilities of carriers that can't be avoided even by express contractual provision

What does the article 7 of the Hague Rules allow the parties to do?

To agree to extend the period of application to the period "prior to the loading, and subsequent to the discharge

What does COGSA only apply to?

To carriage of goods by sea where the carriage contract provides for a bill of lading or any similar document of title

What is the primary objective of COGSA?

To limit the liability of the common carrier while ensuring a claim for damages by shippers

What was the primary objective of the Harter Act?

To prohibit clauses whereby carriers attempted to eliminate their liability for acts of negligence

Why should national maritime customs and shipping practices be understood even though the bill of lading is the universally accepted document of title?

To protect against misdelivery

What does protection and indemnity policy provide?

Two broad categories of protection: 3rd party liability and contractual liability protection

What was the predecessor to the Hague Rules, Hauge-Visby Rules, and the Hamburg Rules?

US Harter Act of 1893

What is the Carriage of Goods by Sea Act (COGSA)?

US domestic version of the Hague or Hague-Visby Rules

Which Law does the clause paramount select to be used to interpret the carriers' obligations and liabilities under the bill of lading?

US law

How do COGSA and the Harter Act differ in terms of caring for goods?

Under COGSA, a carrier of goods in international commerce must properly and carefully load, handle, stow, carry, keep, care for and discharge the goods carried. The Harter Act imposes a duty of proper loading, stowage, custody, care, and proper delivery

How is the common carrier protected in alternative arrangements?

Under COGSA, they are liable for misdelivery but are able to seek indemnification through the guarantee

What is the main difference between the Hague-Visby and Hague?

Under the Hague-Visby Rules, the limit of liability is significantly increased

When do indemnity policies become operative?

Upon payment by the insured

What are specialized companies under COGSA?

Used by common carrier to move the goods to and from the ship and to load and offload the goods

What is the Himalaya clause in COGSA?

Used to extend COGSA protection to third-party companies. Sufficient to extend coverage to a stevedore company and a consultant hired to supervise the stowage of the cargo

What risk is generally excluded from the standard hull and cargo policies?

War risk.

What is used to extend the period of coverage under COGSA?

Warehouse-to-warehouse clause

In what case would function govern over form with freight forwarders?

When a party that calls itself a freight forwarder is in fact performing the functions of a carrier

When do contracts bind parties other than the named parties under COGSA?

When both parties to the contract clearly express a mutual intent to benefit a 3rd party

What are the exceptions to the per-package limitation afforded to carriers?

When shipper is not given a fair opportunity to declare a higher per-package value for the goods

What does COGSA not take into account in regards to time frame of liability?

When the goods are in the control of the carrier before the loading and after the unloading of cargo

What does the Harter Act do that COGSA can't?

With COGSA covering carriers' legal responsibilities through discharge, Harter fills a potential gap between discharge and inland transit in those situations where goods, though on the dock, are still within the control and responsibility of the sea carrier

How soon should a loss claim be made under the Hamburg Rules?

Within one working day after delivery to the consignee