LLM CARRIAGE OF GOODS BY SEA

14 May LLM CARRIAGE OF GOODS BY SEA

LLM Carriage of Goods by Sea

Preparation of Answers
Write no more than 4,500 words (including footnotes and headings). There is no need for a separate bibliography if all books and articles are referenced in footnotes.

Assessment Criteria

assessed on the basis of:
1. research skills in identifying and accessing appropriate legal sources, where appropriate using electronic resources;
2. knowledge and comprehension of the subject;
3. ability to analyse and evaluate relevant legal materials, including international conventions, statutes, case law and standard form contracts;
4. ability to apply sea carriage principles, with appropriate legal authorities, in the solution of complex practical problems in their commercial context;
5. ability to draft sound legal advice based upon such problems, using word processing in formal work; and
6. ability to display clarity and objectivity in their writing.
Grade Mark Criteria
1 1%-19% fails to identify the relevant legal issues or understand most of the relevant law.
2 20%-47% demonstrates fundamental deficiencies in identifying or understanding the relevant law.
3 48%-49% makes a genuine attempt to answer the question by making legal analysis and shows some knowledge of the relevant law but either (a) fails to identify or deal with a significant number of key legal issues; (b) does not show an understanding of the underlying principles; (c) is largely unable to apply the law to the facts of a problem; or (d) the written communication is unclear and incoherent.
4 50%-64% identifies the key legal issues and deals with them in an acceptable fashion. S/he demonstrates adequate knowledge of the relevant law, at least partial understanding of the underlying principles and/or policy issues and partial ability to apply the law to a factual problem. The written communication is clear and coherent.
5 65%-74% The same as for 4 but also (a) deals with most of the key legal issues in an orderly, logical fashion; (b) s/he makes accurate and frequent reference to relevant legal authorities; (c) s/he shows a substantial understanding of the basic principles and/or policy issues as well as good ability to apply the law to a factual problem; and (d) s/he makes well-reasoned arguments in respect of some key legal issues.
6 75%-84% The same as for 5 but also (a) there is substantial evidence of close critical understanding of the law, its content, policy context and/or its application to new situations; and where relevant (b) there is evidence that the student has synthesised a variety of different legal sources.
7 85%+ The same as for 6 but also (a) the knowledge of the law is profound, detailed and complete; (b) the understanding and/or application of the law and its basic principles and policies is incisive, creative and original; and (c) the ability to analyse a factual problem in accordance with legal knowledge is advanced.
In particular, all sources must be fully acknowledged.

You will also need to use the printed “Course Materials” for access to any standard form contracts to which reference is made (I will attach this separately on Monday).

Submission of Answers
You may care to consult my “LLM Legal Writing guide” attached.
I request particularly that you read the “LLM Carriage Takeaway Exam General Feedback Information 2015” attaches, which is based on my feedback to students on their performance in previous takeaway carriage exams (including common errors).

Your 2015Task

You are a lawyer asked to advise Brislaw Shipping. You have received the following communication from its Legal Department.

Brislaw Shipping
Titanic Road
St Lucia
Queensland
To: Legal Adviser
St Lucia Law
31 October 2015

Dear Adviser

We would like you to provide us with some preliminarylegal advice, based on the attached information, about a number of potential disputes concerning the Australian registered shipsBrislaw1 and Brislaw2, owned by us. We are aware that the full facts and documentation may not all be available, but for now you are asked to proceed on the basis of the facts and documentation provided. If there is any ambiguity, do the best you can with the material and indicate what other information you would need and how it would affect your advice.

For your guidance I have providedtwo Attachments (with sub-attachments), which summarise the available facts and information as we know them.

Please advise on the legal issues. You are not asked to advise on any matters of procedure or enforcement (e.g. arrest), or on detailed issues of evidence, or commercial practice, or details of foreign law. We are not sure if it is relevant, but we understand that Australia is a party to the Hague-Visby Rules, like New Zealand and the UK, but we have no information on Vietnam (and we assume that she is not party to any carriage convention). Please concentrate on the basic legal issues under the various carriage contracts and on the information available.

Although you are instructed to advise Brislaw Shipping, I would emphasise that we want a balanced view of the legal position affecting all parties mentioned.

As we are under pressure in the Office, it is important that you do not exceed 4500 words, including any footnotes. You may be able to complete it in less! We appreciate that you cannot cover all matters in equal detail, so please ensure you deal with the main issues, giving full reasons for any conclusions. Obviously, where appropriate, we would expect you to give the legal authority for any statements of law, e.g. the relevant case or statutory provision.

Regards

Sue
Sue Grabbit-Runne
BrislawLegal Department

Attachment No. 1

Haiphong-Brisbane Voyage

Available Facts and Information

Unfortunately, we are still awaiting full information and documentation. Please work from the information available below and in Attachments 1.1-1.6.

As we understand the position, when Brislaw 1 arrived in Haiphong there was a shortage of rice for export and, after some delay, Binge was able to ship only 20,000 tons, although the agreed laytime was exceeded by 4 days. During the loading operation, the master apparently noticed that some of the rice was damp, but received assurances from Binge (see Attachment 1.4). Two identical bills of lading were issued (see Attachment 1.3 for one of them).

Binge kept one of the bills itself, and apparently indorsed the other one and transferred it toPontinental, a trading company with Brisbane facilities. After we allowed Binge and Pontinentals surveyor to inspect the cargo on discharge, they appear to think there is some damage to it (see email received by us in Attachment 1.5) They have not yet formally presented the billsin Brisbaneto obtain delivery of the cargo, and we have been asked by Tradox not to deliver until their claims have been met (see Attachment 1.6).

Can you try to sort out this legal mess by clarifying who can claim what, from whom, and where?It is a bit complicated, I know, but do the best you can at this stage!

Sue
Attachment No. 1.1

From: sgr@brislawshipping.co.au
Sent: 1August 2015 1500
To: Tradox [hugh.sless@tradox.co.uk]
Subject: Brislaw 1 charter -Recap

Dear Hugh

Fixture confirmed on unamendedNYPE 1993 for 24 months, as per previous emails for our vessel Brislaw 1 to yourselves, Tradox, as time charterers.

Sue
Brislaw Legal Department

Attachment No. 1.2
From: Tradox [hugh.sless@tradox.co.uk]
Sent: 1September 2015 1230
To: Binge [ian.solvent@binge.co.au]
Subject: Brislaw 1 charter -Recap

Dear Ian

I confirm that a fixture with Binge, as voyage charterersand Tradox as disponent owners of Brislaw 1, on basis of previous emails and your amendment below.

Hugh
Tradox Chartering Dept

__________________________________________________________________
From: Binge [ian.solvent@binge.co.au]
Sent: 1 September 2015 1015
To: hugh.sless@tradox.co.uk
Subject: Brislaw1 charter -final terms

Dear Hugh

Thanks for your email of 29 August with all the details of the fixture to shipa cargo of 25,000 tons of bagged rice at Haiphong for delivery in Brisbane. Basis Gencon 1994, including cl 2, 7 and 8, subject to following and logical amendments.
• Cl.19 to read “Law and ArbitrationAny dispute arising under the charterparty to be referred to arbitration in London.”
• Cl.7 Demurrage at $10,000 per day.

Regards,

Ian Solvent
Head Chartering Office
Binge Ltd
Brisbane

Attachment No. 1.3 (Face)

Shipper CP BILL OF LADING TO BE USED WITH CHARTERPARTIES
Binge
B/L No.783947vv
Consignee

To Order
Notify address
Vessel Port of loading
BRISLAW1 Haiphong

Port of discharge
Brisbane

Shippers description of Goods. Gross weight

10,000 tonnes bagged rice

Shippers load stow and count
Freight payable as per
CHARTERPARTY dated3 September 2015…………
.
FREIGHT ADVANCE Received on account of freight:
…… Freight prepaid …………………..
SHIPPED at the Port of Loading in apparent good order and condition on board the Vessel for carriage to the Port of Discharge or so near thereto as she may safely get the goods specified above.
Weight, measure quality, quantity, condition, contents and value unknown.
IN WITNESS whereof the Master or Agent of the said Vessel has signed the number of Bills of Lading indicated below all of this tenor and date, any one of which being accomplished the others shall be void.
FOR CONDITIONS OF CARRIAGE SEE OVERLEAF
Freight payable at
Freight prepaid Place and date of issue
3 September 2015,Haiphong
Number of original Bs/L
One (1)
Signature
G.Down
Binge Shipping Agencies
As agent for and on behalf of Master
Attachment No. 1.3 (Reverse)

CP BILL OF LADING

(1) All the terms and conditions liberties and exceptions of the Charter Party, dated as overleaf, including the Law and Jurisdiction clause, are herewith incorporated.

(2) General Paramount Clause

The International Brussels Convention 1924 as amended by the Protocols signed at Brussels in 1968 and 1979 – the Hague-Visby Rules – shall apply to this contract.
Attachment No. 1.4

From: Binge [ian.solvent@binge.co.au]
Sent: 3 September 2015 0930
To: jo.nah @brislaw1.co.au
Subject: Brislaw 1 indemnity

Dear Captain Nah

I understand that you think that there may be some damp problems with the rice cargo currently loading. We have been assured by suppliers that this is perfectly normal for the climate and well within industry tolerances. None of us want the ship to be held up by letter of credit problems, so we would be obliged if you did not clause the bill with any reference to dampness, as this would be misleading and cause inconvenience for all.

As discussed over the phone, I confirm that in consideration of you issuing clean bills, Binge hereby agrees to indemnify you and Brislaw Shipping against all and any claims that may be made by any person as a result of you signing clean bills. Neither of us expects any problems at all, but this indemnity is governed by Australian law and subject to the jurisdiction of the Federal or Supreme Courts in Queensland.

Regards,

Ian Solvent
Head Chartering Office
Binge Ltd
Brisbane
Attachment No. 1.5

Cargo Recoveries (Qld)
1 Graspem Street
Brisbane

30 October 2015
To: Brislaw Shipping,
Titanic Road
St Lucia
Queensland

Dear Sir/Ms

We have been instructed by the insurers of the cargo rice lately laden on the Brislaw 1 for a voyage from Haiphong to Brisbane. The insurers have been authorised by cargo owners Binge and Pontinental(who received 10,000 tonnes each) to commence proceedings in their names against Brislaw Shipping.

Cargo surveyors have confirmed that the cargo of rice has been seriously damaged by water and is showing extensive white fungal growth (probably mildew). It is likely that the cargo is now worthless, but we are endeavouring to find a distressed cargo purchaser. Cargo owners and insurers hold the carrier liable for this loss which must have happened during the carriage, as the bills record shipment in good condition. We have not yet been able to present the bills and take delivery as we gather there is some problem with Tradox.

Before issuing proceedings we look forward to receiving your response on liability.

Yours faithfully
Clem Ite
Clem Ite
Senior Claims handler
Attachment No. 1.6
From: Tradox [hugh.sless@tradox.co.uk]
Sent: 29October 2015 1530
To: Brislaw [sgr@brislawshipping.co.au]
Subject: Brislaw 1

Dear Sue

As you have probably gathered, we have demurrage and deadfreight claims in respect of the Haiphong voyage and wish to exercise our rights against voyage charterer Binge and bill of lading holder Pontinental. In the circumstances, please do not deliver the cargo until we instruct you otherwise.

Hugh
Tradox Chartering Dept
Attachment No. 2

Auckland- Brisbane Shipment

Available Facts and Information

Unfortunately, we are still awaiting copies of the original carriage documentation. So it is necessary to work from the information available below (see Attachments 2.1-2.5). See in particular the Letter from Pontinental (Attachment 2.2); also the Booking Note (Attachment 2.3)and copy of Bill of lading (Attachments 2.4 and 2.5) enclosed with their letter.

We should note that in relation to Generator No 2, our surveyor believes that the lashings between the generator and the pallet were loose.

We should add that on arrival in Auckland, our agents Brislaw Agencies (NZ)have properly refused to deliver to Pontinental unless the bills of lading are produced.

Again, its a bit complicated but do your best in advising on the legal position in relation to potential cargo claims and where they may be brought.

You shipped on Brislaw 2 three very large and complex electrical generators (worth $150,000 each) on a voyage from Brisbane to Auckland in New Zealand and covered by three bills of lading. For your information, we attach a copy of one of the three bills of lading issued (all were identical as you know).

You have so far refused to deliver the cargo to us, despite the fact that we have shown to Brislaw Agencies (NZ) three delivery orders issued by Tradox Agencies. Although we cannot at the moment produce the original bills of lading as they appear to be stuck in the banking system, you know that we are the named consignee. We have appointed a surveyor who has reported to us with the following information.

Despite the shipper requesting underdeck stowage (see Booking Note attached), we now understand that Generator No 1 was shipped on deck and suffered from sea water rusting.

Generator No 2, which was shipped underdeck, was badly damaged on discharge. Our surveyor ascertained from the master that it had shifted when the ship made a heavy contact with the Brisbane quayside during berthing in heavy weather.

Generator No 3, also shipped underdeck, was being unloaded by a shore crane when it was negligently dropped onto the quay by the crane driver and was seriously damaged.

In the light of the above we give notice that we are seriously considering legal action against Brislaw, Tradox, or Binge – or all three.

Yours

Fred Karno

F Karno
Claims Manager
Pontinental Ltd
Attachment No. 2.3 (Booking Note)

Agents BRISLAW LINER BOOKING NOTE

Brislaw Agencies (NZ)
24 Port Road, Auckland Place and date:10 September 2015

Vessel
Brislaw 2
Carrier (full style and address)
Brislaw Shipping, Titanic Road, St Lucia, Queensland Time for shipment (about)
15 September
Port of loading
Brisbane
Port of discharge
Auckland
Merchant* (full style and address)

Binge Ltd
24 Port Avenue, Port of Brisbane.
Merchants representatives at loading port (full style and address)

Binge Agencies (Brisbane), 24 Port Road, Brisbane

Container No./Seal No. Marks and Numbers (if available)
Number and kind of Packages; description of cargo
Three (3) Alstom Electrical Generators (model Al25XXX) to be in three (3) open top containers, with plastic shrink wrap covering

Gross weight, kg
(if available)

9000 kg each Measurement, m3
(if available)
Freight details and charges
Special items, if agreed

Request goods to be shipped underdeck
Freight (state pre-payable or payable at destination)
AU$1800 Pre-payable

It is hereby agreed that this Contract shall be performed subject to Carriers standard BL terms terms which shall prevail over any previous arrangements and which shall in turn be superseded (except as to deadfreight) by the terms of the Bill of Lading.

Signature (Merchant)
Ian Solvent Signature (Carrier)
Attachment 2.4 (Bill – Face)

B/L No.459933mh
_______________________________________________
Shipper COMBINED TRANSPORT BILL OF LADING
Binge Ltd
Reference No.bin335566

Consignee
To Order
Notify Party (see clause 22)
PontinentalLtd123 King St, Auckland and
Bank of Auckland, 999 Queen St, Auckland

Place of receipt Applicable only when document used as Multimodal Transport B/L. (see clause 1)
Vessel Port of loadingPort of discharge
BRISLAW2 Brisbane Auckland
_____________
Place of delivery Applicable only when document used as Multimodal Transport B/L. (see clause 1)

Marks and Nos. Number and kind of packages; description of goods Gross weight Measurement

Container No IND14614, Seal 141414 9000 kg
1 x 20 ftopen top container with plastic shrink wrap covering
Said to Contain One (1) Alstom Electrical Generator (model Al25XXX)

Cargo is carried on deck entirely at shippers risk
Above particulars as declared by Shipper, but without responsibility of or representation by Carrier (see clause 14)
SHIPPED, as far as ascertained by reasonable means of checking, in apparent good order and condition unless otherwise stated herein, the
total number or quantity of Containers or other packages or units indicated in the box entitled “Carriers Receipt” for carriage from the Port of
Loading (or the Place of Receipt, if mentioned above) to the Port of Discharge (or the Place of Delivery, if mentioned above), such carriage
being always subject to the terms, rights, defences, provisions, conditions, exceptions, limitations, and liberties hereof (INCLUDING ALL
THOSE TERMS AND CONDITIONS ON THE REVERSE HEREOF NUMBERED 1-26 AND THOSE TERMS AND CONDITIONS CONTAINED IN THECARRIERS APPLICABLE TARIFF) and the Merchants attention is drawn in particular to the Carriers liberties in respect of on deck stowage
(see clause 18) and the carrying vessel (see clause 19). Where the bill of lading is non-negotiable the Carrier may give delivery of the Goods
to the named consignee upon reasonable proof of identity and without requiring surrender of an original bill of lading. Where the bill of
lading is negotiable, the Merchant is obliged to surrender one original, duly endorsed, in exchange for the Goods. The Carrier accepts a duty
of reasonable care to check that any such document which the Merchant surrenders as a bill of lading is genuine and original. If the Carrier
complies with this duty, it will be entitled to deliver the Goods against what it reasonably believes to be a genuine and original bill of lading,
such delivery discharging the Carriers delivery obligations. In accepting this bill of lading, any local customs or privileges to the contrary
notwithstanding, the Merchant agrees to be bound by all Terms and Conditions stated herein whether written, printed, stamped or
incorporated on the face or reverse side hereof, as fully as if they were all signed by the Merchant.
IN WITNESS WHEREOF the number of original Bills of Lading stated on this side have been signed and wherever one original Bill of Lading
has been surrendered any others shall be void.
Carriers Receipt (see clause 1 and 14). Total numberof containers or packages received by Carrier.
Three(3) Freight payable at
Prepaid Place and date of issue
Brisbane 17 September2015
Number of original Bs/L
Three (3)
Signature
G.Down
TradoxAgencies
As agent
___________________________________________________________________

Attachment No. 2.5 (Bill Reverse)

Terms and conditions of carriage
Multimodal transport bill of lading
1. Definitions
“Carriage” means the whole or any part of the carriage, loading, unloading, storing, warehousing, handling and any and all other services whatsoever undertaken by the Carrier in relation to the Goods.
“Carrier” Brislaw Shipping of Titanic Road, St Lucia Queensland, Australia.
“Container” includes any container (including an open top container), flat rack, platform, trailer, transportable tank, pallet or any other similar article used to consolidate the Goods and any connected equipment.
Freight” includes all charges payable to the Carrier in accordance with the applicable Tariff and this bill of lading.
“Goods” means the whole or any part of the cargo and any packaging accepted from the Shipper and includes any Container not supplied by or on behalf of the Carrier.
“Hague Rules” means the provisions of the International Convention for the Unification of Certain Rules relating to Bills of Lading signed at Brussels on 25th August 1924 and includes the amendments by the Protocol signed at Brussels on 23rd February 1968, but only if such amendments are compulsorily applicable to this bill of lading. (It is expressly provided that nothing in this bill of lading shall be construed as contractually applying the said Rules as amended by said Protocol).
“Holder” means any Person for the time being in possession of this bill of lading to or in whom rights of suit and/or liability under this bill of lading have been transferred or vested.
“Merchant” includes the Shipper, Holder, Consignee, Receiver of the Goods, any Person owning or entitled to the possession of the Goods or of this bill of lading and anyone acting on behalf of such Person.
“Multimodal Transport” arises if the Place of Receipt and/or the Place of Delivery are indicated on the reverse hereof in the relevant spaces.
“Ocean Transport” means the same as Port-to Port Shipment.
“Package” where a Container is loaded with more than one package or unit, the packages or other shipping units enumerated on the reverse hereof as packed in such Container and entered in the box on the reverse hereof entitled “Carriers “Receipt” are each deemed a Package.
“Person” includes an individual, corporation, or other legal entity.
“Port-to-Port Shipment” arises when the Carriage is not Multimodal.
“Subcontractor” includes owners, charterers and operators of vessels (other than the Carrier), stevedores, terminal and groupage operators, road and rail transport operators, warehousemen and any independent contractors employed by the Carrier performing the Carriage and any direct or indirect Subcontractors, servants and agents thereof whether in direct contractual privity or not.
“Terms and Conditions” means all terms, rights, defences, provisions, conditions, exceptions, limitations and liberties hereof.
“US COGSA” means the US Carriage of Goods by Sea Act 1936.
“Vessel” means any water borne craft used in the Carriage under this Bill of Lading which may be a feeder vessel or an ocean vessel.
2. Carriers Tariff
The terms and conditions of the Carriers applicable Tariff are incorporated herein. Attention is drawn to the terms therein relating to free storage time and to container and vehicle demurrage or detention. Copies of the relevant provisions of the applicable Tariff are obtainable from the Carrier upon request. In the case of inconsistency between this bill of lading and the applicable Tariff, this bill of lading shall prevail.
3. Warranty
The Merchant warrants that in agreeing to the Terms and Conditions hereof he is, or has the authority to contract on behalf of, the Person owning or entitled to possession of the Goods and this bill of lading.
4. Subcontracting
4.1 The Carrier shall be entitled to sub-contract on any terms whatsoever the whole or any part of the Carriage.
4.2 The Merchant undertakes that no claim or allegation whether arising in contract, bailment, tort or otherwise shall be made against any servant, agent, or Subcontractor of the Carrier which imposes or attempts to impose upon any of them or any vessel owned or chartered by any of them any liability whatsoever in connection with the Goods or the Carriage of the Goods whether or not arising out of negligence on the part of such Person, and, if any such claim or allegation should nevertheless be made, to indemnify the Carrier against all consequences thereof. Without prejudice to the foregoing every such servant, agent, and Subcontractor shall have the benefit of all Terms and Conditions of whatsoever nature herein contained or otherwise benefiting the Carrier including clause 26 hereof, the law and jurisdiction clause, as if such Terms and Conditions (including clause 26 hereof) were expressly for their benefit and, in entering into this contract, the Carrier, to the extent of such Terms and Conditions, does so on its own behalf, and also as agent and trustee for such servants, agents and Subcontractors.
4.3 The provisions of the second sentence of clause 4.2 including but not limited to the undertaking of the Merchant contained therein, shall extend to all claims or allegations of whatsoever nature against other Persons chartering space on the carrying vessel.
4.4 The Merchant further undertakes that no claim or allegation in respect of the Goods shall be made against the Carrier by any Person other than in accordance with the Terms and Conditions of this bill of lading which imposes or attempts to impose upon the Carrier any liability whatsoever in connection with the Goods or the Carriage of the Goods, whether or not arising out of negligence on the part of the Carrier, and if any such claim or allegation should nevertheless be made, to indemnify the Carrier against all consequences thereof.
5. Carriers Responsibility: Port-to-Port Shipment
5.1 Where the Carriage is Port-to-Port, then the liability (if any) of the Carrier for loss of or damage to the Goods occurring between the time of loading at the Port of Loading and the time of discharge at the Port of Discharge shall be determined in accordance with any national law making the Hague Rules compulsorily applicable to this bill of lading (which will be US COGSA for shipments to or from the United States of America) or in any other case in accordance with the Hague Rules Articles 1-8 inclusive only.
5.2 The Carrier shall have no liability whatsoever for any loss or damage to the Goods while in its actual or constructive possession before loading or after discharge, howsoever caused. Notwithstanding the above, in case and to the extent that any applicable compulsory law provides to the contrary, the Carrier shall have the benefit of every right, defence, limitation and liberty in the Hague Rules as applied by clause 5.1 during such additional compulsory period of responsibility, notwithstanding that the loss or damage did not occur at sea.
5.3 Where US COGSA applies then the provisions stated in the said Act shall govern before loading on the vessel or after discharge therefrom, as the case may be, during Carriage to or from a container yard or container freight station in or immediately adjacent to the sea terminal at the Port of Loading and/or Discharge. If the Carrier is requested by the Merchant to procure Carriage by an inland carrier in the United States of America and the inland carrier in his discretion agrees to do so, such carriage shall be procured by the Carrier as agent only to the Merchant and such carriage shall be subject to the inland carriers contract and tariff. If for any reason the Carrier is denied the right to act as agent at these times, his liability for loss damage or delay to the Goods shall be determined in accordance with clause 6 hereof.
5.4 In the event that the Merchant requests the Carrier to deliver the Goods:
(a) at a port other than the Port of Discharge; or
(b) (save in the United States of America) at a place of delivery instead of the Port of Discharge, and the Carrier in its absolute discretion agrees to such request, such further Carriage will be undertaken on the basis that the Terms and Conditions of this bill of lading are to apply to such Carriage as if the ultimate destination agreed with the Merchant had been entered on the reverse side of this bill of lading as the Port of Discharge or Place of Delivery.
6. Carriers Responsibility – Multimodal Transport
Where the Carriage is Multimodal Transport, the Carrier undertakes to perform and/or in his own name to procure performance of the Carriage from the Place of Receipt or the Port of Loading, whichever is applicable, to the Port of Discharge or the Place of Delivery, whichever is applicable, and, save as is otherwise provided for in this bill of lading, the Carrier shall be liable for loss or damage occurring during the Carriage only to the extent set out below:
6.1 Where the stage of Carriage where loss or damage occurred is not known.
(a) Exclusions
The Carrier shall be relieved of liability for any loss or damage where such loss or damage was caused by:
(i) an act or omission of the Merchant or Person acting on behalf of the Merchant other than the Carrier, his servant, agent or Subcontractor,
(ii) compliance with instructions of any Person entitled to give them.
(iii) insufficient or defective condition of packing or marks,
(iv) handling, loading, stowage or unloading of the Goods by the Merchant or any Person acting on his behalf,
(v) inherent vice of the Goods,
(vi) strike, lock out, stoppage or restraint of labour, from whatever cause, whether partial or general,
(vii) a nuclear incident,
(viii) any cause or event which the Carrier could not avoid and the consequences whereof he could not prevent by the exercise of reasonable diligence.
(b) Burden of Proof
The burden of proof that the loss or damage was due to one or more of the causes or events specified in this clause 6.1 shall rest upon the Carrier. Save that if the Carrier establishes that, in the circumstances of the case, the loss or damage could be attributed to one or more of the causes or events specified in clause 6.1(a)(iii), (iv) or (v), it shall be presumed that it was so caused. The Merchant shall, however, be entitled to prove that the loss or damage was not, in fact, caused either wholly or partly by one or more of these causes or events.
(c) Limitation of Liability
Except as provided in clauses 7.2(a), (b) or 7.3, if clause 6.1 operates, total compensation shall under no circumstances whatsoever and howsoever arising exceed USD 500 per package where Carriage includes Carriage to, from or through a port in the United States of America and in all other cases 2 SDR per kilo of the gross weight of the Goods lost or damaged.
6.2 Where the stage of Carriage where the loss or damage occurred is known. Notwithstanding anything provided for in clause 6.1 and subject to clause 18, the liability of the Carrier in respect of such loss or damage shall be determined:
(a) by the provisions contained in any international convention or national law which provisions:
(i) cannot be departed from by private contract to the detriment of the Merchant, and
(ii) would have applied if the Merchant had made a separate and direct contract with the Carrier in respect of the particular stage of the Carriage during which the loss or damage occurred and received as evidence thereof any particular document which must be issued if such international convention or national law shall apply; or
(b) in case of shipments to or from the United States of America by the provisions of US COGSA if the loss or damage is known to have occurred during Carriage by sea to or from the USA or during Carriage to or from a container yard or container freight station in or immediately adjacent to the sea terminal at the Port of Loading or of Discharge in ports of the USA; or
(c) by the Hague Rules Articles 1-8 only inclusive where the provisions of clauses 6.2(a) or (b) do not apply if the loss or damage is known to have occurred during Carriage by sea; or
(d) if the loss or damage is known to have occurred during Carriage inland in the USA, in accordance with the contract of carriage or tariffs of any inland carrier in whose custody the loss or damage occurred or, in the absence of such contract or tariff by the provisions of Clause 6.1, and in either case the law of