The Cargo Letter

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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


OUR "E" Section: The Forwarder Broker World


7. New U.S. Transport Related Legal Cases

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
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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Written from wire stories, the Associated Press, Reuters, Hong Kong Shipping News Lloyds & other world sources.