In the present case, it is seen that the goods have gone both by road as well as by sea before they actually reached the buyer. The facts state that Bildia had agreed to freight the motors overland from Mannheim to Rotterdam and from Rotterdam it was to be loaded on a ship to Melbourne. Although it is important to understand the legalities of carriage by road for the purposes of this essay we shall, however, concentrate only on legalities and rules involved in the carriage of goods by sea from Rotterdam to Melbourne.
Prior to discussing the actual rules that govern carriage of goods by sea, it is important to understand the provisions in the Convention regarding carriage of goods. According to the provisions of the Convention, the seller is under an obligation to ensure that the goods or documents are delivered to the buyer at the time and place so specified by the latter. Article 32 of the Convention deals with the modalities regarding delivery of goods through carrier.
It states that it is the responsibility of the seller to ensure that goods are properly handed over to the carrier with appropriate markings so that it can be distinguished at the receiving end. Also where the seller is responsible to arrange for transport, the Convention states that the seller should enter into such contracts that are necessary for such carriage and the terms of contract should be such as are regularly used in such type of transport. In the present case, the terms of contract as specified, state that the seller has total responsibility of ensuring that the goods are delivered at the place specified by the buyer.
In pursuance of the terms of contract, the seller has arranged for sea transport through a Netherlands Shipper Dragenlines BV. Carriage of Goods by Sea is broadly covered by the United Nations Convention on the Carriage of Goods by Sea (the Hamburg Rules), Hamburg, 1978. These rules specify the liabilities of the carrier and the shipper in case of loss or damage caused to goods in their possession. The provisions of the Hamburg rules specify that the Shipper is not liable for any damage caused to the goods unless such loss is through fault or commission or omission of any act on the part of the Shipper, his agents etc.
It is also pertinent to note that Article 4 of the Hague-Visby Rules states that any damaged that is caused as a result of unseaworthiness then neither the shipper nor the carrier will be responsible for the same unless such damage is caused because of the recklessness on the part of the carrier to ensure the seaworthiness of the ship. (Hague-Visby Rules 1968) If damage is caused due to some omission or commission on the part of the shipper or carrier then there is a claim for damages against them else not. In the present case, we can see that the damage caused to the motors was due to the careless stowage of the same by the Shipper.
However, the seller had sent the sea-carriage documents in advance to the buyer in order to claim delivery of the goods. Under such circumstances by applying the provisions of Sea-Documents Carriage Act 1998, we can safely state that the rights and liabilities of the seller with respect to the goods has safely passed on to the buyer. On the basis of this argument it is safe to infer that the buyer can sue the shipper for the damages caused during transport. However, another pertinent point that is to be noted is the fact that though the document is with the buyer, the ownership of the goods is still with the seller.
Hence the transfer of sea-carriage document without transfer of title makes it impossible for the new holder of sea-carriage document to claim damages. (2105 words)
Roder Zelt-Und Hallenkonstruktionen GMBh v. Rosedown Park Pty Ltd. And Reginald R Eustace (1995) 17 ACSR 153 Sale of Goods (Vienna Convention) Act 1987 (NT) <http://www. austlii. edu. au/au/legis/nt/consol_act/sogca1987308> currency date not stated (30 April 2007) Sea-Carriage Documents Act 1998 (NT) <http://www. austlii. edu. au/au/legis/nt/consol_act/sda1998202> currency date not stated (30 April 2007) The Hague-Visby Rules