Responsibility for Cargo Ashore

Comparative Overview

International Overview

There is no international convention presently in force with respect to responsibility for cargo before loading and after discharge. Nevertheless, the subject has been addressed by the United Nations Commission on International Trade Law (UNCITRAL)in the United Nations Convention on the Liability of Operators of Transport Terminals in International Trade, adopted in Vienna on 19 April 1991 (not yet in force). States required for coming into force: 5. States party as at 1 May 2005: 3 – Egypt, Gabon and Georgia. See UN Treaty website.

Canada

The Canada Shipping Act, 2001, S.C. 2001, c. 26, at sect. 250, has a cursory provision on responsibility before and after discharge. The provision is not of public order and so can be contracted out of in the bill of lading. The Supreme Court of Canada, on 26 June 1986, in Int’l Terminal Operators v. Miida Electronics v. The Buenos Aires Maru) [1986] 1 S.C.R. 752 at p. 779, 1986 AMC 2580 at p. 2601, ruled that responsibility after discharge falls under “Canadian maritime law” which is “uniform throughout Canada” and encompasses “the common law principles of tort, contract and bailment.” The Supreme Court of Canada, on 26 November 1998, in Ordon et al. v. Grail [1998] 3 S.C.R. 437 at pp. 489-490, (1998) 232 N.R. 201 at pp. 261-262, 166 D.L.R. (4th) 193 at p. 229, 1999 AMC 994 at pp. 1019-1020, confirmed its holding in Chartwell Shipping Ltd. v. Q.N.S. Paper Co.. [1989] 2 S.C.R. 683, 101 N.R. 1, 26 Q.A.C. 81, refd. to pp. 695-97, finding that “Canadian maritime law” is comprised “of principles deriving in large part from both the common law and the civilian tradition.”

United States

The United States has an excellent law in respect of the responsibility of carriers for cargo before and after discharge-the Harter Act 1893, Act of February 1893, c. 105, 27 Stat. 445, formerly 46 U.S. Code Appx. 190-196, now 46 U.S. Code 30701-30707. Note that the Harter Act was codified in 46 U.S. Code as Chapter 307 (“Liability of Water Carriers”) by the “Act to complete the codification of title 46, United States Code, ‘Shipping’, as positive law”, being the Act of 6 October 2006, Public Law No. 109-304, 120 Stat. 1485. In the codification, certain changes were made to simplify, clarify and modernize the language and style of the statute, but the changes were to intended to modify the substance of the enactment. State legislation in respect of the liability of warehousemen, etc. also plays a role.

United Kingdom

The former Merchant Shipping Act 1894, (1894) 57 & 58 Vict. c. 60 at sects. 492 to 501 dealt with delivery of cargo and incidentally with the responsibility for the cargo when it had been landed. These sections were repealed in 1993 (The Merchant Shipping Act 1993, c. 50, s. 1(1), Sch., Pt. XV). The common law rules on torts, contract and bailment generally apply before loading and after discharge.

France

France has an excellent law in respect of cargo ashore, being Law No. 66-420 of 18 June 1966 at arts. 15 and 27, supplemented by Decree No. 66-1078 of 31 December 1966 at arts. 38 and 39. Carriers, stevedores and terminal operators are responsible for goods in their charge ashore but they may limit liability. Suit in contract is only possible against the terminal operators or stevedores by the person who hired their services: art. 52 of the Law of 18 June 1966. When it is the carrier who has hired the stevedore, the carrier will be held responsible for loss or damage to the cargo.

China

The MCPRC deals with the period of responsibility at art. 46 (port to port for containerized goods; tackle to tackle for non-containerized goods), which essentially modifies art 4 of the Hamburg Rules (where the period of responsibility is from port to port for all cargoes).

By William Tetley, Q.C