The Cargo Letter |
Section A: Trade, Financial & Inland News | Section
B: FF World Air News |
Section C: FF World Ocean News | Section
D: FF in Cyberspace |
Section E: The Forwarder Broker World
In
re Tidewater Marine, Inc.
Fifth
Circuit Court of Appeals
April
18, 2001
Limitation of Liability Act: the
district court erred in declining to lift its stay against state court
proceedings against the vessel owner where the claimants had stipulated: (1)
that they would not enforce a state court judgment beyond the alleged value of
the vessel and her pending freight unless and until the district court
established a higher value or denied the owner's right to limitation and (2)
that none of their claims had priority over any other and that they would be
paid from the limitation fund on a pro rata basis; the district court erred in
concluding that persons who had failed to file claims directly against the
shipowner long after the accident were "potential claimants" that must
be included in the stipulation before a stay will be lifted; further, the
claimants were not required to include an exoneration stipulation to have the
stay lifted.
http://www.admiraltylawguide.com/circt/5thtidewater.html
Fairport
Int'l v. The Shipwrecked Vessel
Sixth
Circuit Court of Appeals
April
17, 2001
Abandoned Shipwreck Act ("ASA"):
the district court correctly found that the owner of the Captain Lawrence had
abandoned the 1933 wreck & thus title to the wreck had passed to the State
of Michigan under the Abandoned Shipwreck Act, 43 U.S.C ¤¤ 2101-06 ("the
ASA"); the facts supporting a finding of abandonment by clear &
convincing evidence included: (1) the Captain Lawrence was a relatively recent
wreck; (2) the Captain Lawrence sank in 40-60 feet of water; (3) it was
technologically feasible to recover the Captain Lawrence in 1933; (4) the owner
valued the Captain Lawrence at US$200 & wrote it off as a "total
loss" on the casualty report he filed; (5) the owner had no insurance on
the Captain Lawrence when it sank; (6) the owner declined lifesaving assistance
from the Coast Guard; (7) he never attempted to salvage the wreck; & (8) he
died intestate.
http://www.admiraltylawguide.com/circt/6thfairport3.html
United
States v. Ocean Bulk Ships
Fifth
Circuit Court of Appeals
April
10, 2001
Carriage of Goods by Sea Act
("COGSA"): Once a shipper establishes its prima facie case creating a
presumption of liability, the burden of proof under COGSA shifts to the
defendant-carrier, which must prove (1) that it exercised due diligence to
prevent the loss or damage to the cargo, 46 U.S.C. ¤ 1304(1), or (2) that the
loss or damage was the result of one of the Act's enumerated
"uncontrollable causes of loss." "If the carrier successfully
rebuts the shipper's prima facie case, then the presumption of liability
vanishes and the burden returns to the shipper to show that carrier negligence
was at least a concurrent cause of the loss or damage to the cargo. If the
shipper successfully establishes that the carrier's negligence is at least a
concurrent cause of the loss or damage, then the burden shifts once again to the
carrier, which must establish what portion of the loss was caused by other
factors. If the carrier is unable to prove the appropriate apportionment of
fault, then it becomes fully liable for the full extent of the shipper's
loss." In applying this burden shifting scheme, the court held that
defendants' surveyors' reports, three of the five of which failed to provide
even a speculative assessment concerning the cause of the missing and damaged
cargo at discharge, were either insufficient to rebut plaintiff's prima facie
case or, where some evidence of an excepted cause was indicated in the reports,
were insufficient in carrying defendants' burden to apportion the damage. Read
the decision.
http://www.admiraltylawguide.com/circt/5thusoceanbulk.html
Western
Digital Vs. British Airways Please click below to go back to the Cargo Letter home page. Return to the top of Section E Written from wire stories, the Associated Press,
Reuters, Hong Kong Shipping News Lloyds & other world sources.
English
Court of Appeal
April
2201
The English Court decided that the
contracting or actual carrier could be sued for loss of or damage to cargo by
the owner of the goods even though not named in the house air waybill. The
owner, Western Digital, claimed that the contract for air carriage had been made
by its forwarder, Lep Int'l, on its behalf. Lep had issued its own house air
waybills (HAWB) for 2 consignments lost during air carriage that named Western
Digital as consignor & Express Forwarding, a forwarder at the destination,
as consignee. The HAWBs referred to Lep's trading conditions printed on the
reverse side. These conditions included a clause that addressed the role of Lep
in making arrangements for the carriage of its customers goods ...........
shipper under a house bill of lading can sue the custodial carrier directly.
Read the complete decision.
http://www.forwarderlaw.com/Cases/houseawb.htm
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