An Introduction to Cargo Claims - 6 Essential Modules

Introduction

Cargo claims are probably the most frequent type of claim arising out of contracts of carriage.

Given the sheer volume of claims, the priority for all interested parties is to resolve them as quickly and as cost-effectively as possible.

This requires a cargo claim to be seen both in its legal and commercial context. An assessment of the legal merits of the claim is key. However, a good claim under the law is not of itself enough. There must be a reasonable prospect of a successful recovery to make the claim worth pursuing. Practical questions need to be asked. Is the defendant good for the money? Can you prove your claim? Can you get adequate security for your claim? Can you enforce a court judgment or arbitration award in the relevant jurisdiction?

Consequently, those pursuing claims evaluate their chances of successful recovery pragmatically. You must also consider how shipping law has been developing in terms of risk allocation for such claims. Recent cases such as Volcafe v CSAV on the burden of proof in cargo damage claims and the Santa Isabella on routing and cargo care issues illustrate the courts’ approach.

This set of 6 online modules will guide you through the key legal and practical considerations for pursuing cargo claims to a successful recovery.

What You Will Learn

The modules covered are as follows:

Module 1 - Bringing Your Claim in Contract

• Correct contract of carriage - charterparty/bill of lading or sea waybill - different claims under different contracts?
• Correct defendant - carrier/registered owner or demise charterer
• Chain of contracts - indemnities
• Title to sue - correct claimant
• Practical considerations and problem areas

Module 2 - Bringing Your Claim in Tort/Bailment

• When to sue in bailment
• Obligations in bailment
• Title to sue in bailment
• Attornment
• When to sue in tort
• Title to sue in tort: negligence, wrongful interference and conversion
• Limitations on claims in tort

Module 3 - Protecting Your Claim (Time Limits & Delays) & Defences

• Protecting your claim (time limits and delays):
• Statutory time limits
• Contractual time limits
• ICA
• Does time limit apply to your claim?
• Protecting time - commencing valid proceedings within time - appropriate jurisdiction
• Time extensions - practical considerations
• Time bars and delays - recent cases
• Defences:
• Time bars
• Exclusions/exceptions clauses
• Limitation
• Irrecoverable losses

Module 4 - Jurisdiction

• Contractual jurisdiction - express choice of jurisdiction
• Incorporation of jurisdiction clause into contract of carriage
• Conflicting jurisdiction clauses
• Where no express choice - implied choice
• Where local law will ignore jurisdiction clause
• Jurisdiction in relation to tort claim
• Choice of jurisdiction - favourable jurisdiction - forum shopping

Module 5 - Proving Your Claim

• Inaccurate bills of lading
• Paper shortages
• Burden of proof - recent cases
• Evidence gathering
• Apportionment under ICA
• Quantifying your claim - proof of loss

Module 6 - Enforcement & Security

• Risks of insolvency
• Arrest
• Freezing order - pre and post judgment
• Anti-suit injunction
• LOUs and bank guarantees
• Recognition of awards and judgments

This webinar was recorded on 25th August 2021