Question 1

Article 4(2)(a) of the Hague-Visby Rules provides that neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from act, neglect or default of the master, mariner, pilot or the servants of the carrier in the navigation or in the management of the ship.This provision is often called the 'nautical fault defence'. Consider the following situations:

a)Three ordinary crew members hired by the carrier and working on the carrier's ship, break into a shipping container belonging to Sweet-tooth Varieties Pty Ltd and consume large quantities of top-quality chocolate and nougat.

b)The pilot in charge of navigating the ship has had several glasses of wine just before he goes on shift and as the ship enters the narrow mouth of Port Phillip Bay he gives the wrong orders to the engineer and crew members on the bridge of the ship, so that the ship is driven onto rocks and a large hole is torn into the side of the ship.Water enters the hold of the ship and much of the cargo is damaged.

c)Tom is a seaman who has recently joined a radical sect.Many members of the sect, including Tom, are opposed to the long-distance transport of basic food stuffs; especially fruit and vegetables that they believe should be grown and consumed locally.Tom joins the crew of a ship that is carrying a load of asparagus and pears from Chile to Australia.On the second day of the journey, he sabotages the engine of the ship so that the trip is delayed for over a month, by which time the food has become ruined.

d)The chief engineer of the carrier's ship is addicted to smoking.Near the end of a long shift in the engine-room, she decides she needs to smoke a cigarette.When she tries to light her cigarette, however, a huge explosion results the engineer is killed, two other crew members are injured and a hole in the hull of the ship begins to leak so that much of the cargo (bulk dry rice and wheat) is damaged.

Required

You are required to provide a reflecting upon each of the above situations and indicating in which of those situations would the carrier be able to rely on Article 4(2)(a) to escape liability for loss of or damage to goods?In your report, please consider that you are reporting to either to:

the shipperor

the owner of the vesselor

the master of the vesselor

in the case of the vessel being operated under a bare-boat charter,the charterer.

You are encouraged to argue from the point of view of the party to whom you are reporting and emphasise the arguments which would be most in favour of that party's interests whilst at the same time explaining the fundamental application of the relevant legislation, regulations and any relevant cases. In other words, you are not asked to provide a judicial solution in each situation so much as how the facts might best be argued in the interests of the party to whom you are reporting given the fundamentals of the Hague-Visby rules and their application.

As the four situations all reflect the application of the Hague-Visby rules to the particular facts of each situation, you might approach the preparation of your report by explaining the nature of the approach adopted by the Hague-Visby rules to a carrier's liability for damage to or loss of cargo. Then you could examine each scenario and explain how and why you would argue for a particular interpretation on behalf of your chosen party.

(Hint - Article 3 of the Hague-Visby rules may also have a bearing on your answers).

Question 2

It could be considered that the nautical fault defence is something of an anomaly in the Hague-Visby rules.

Required

Explain the meaning of and reason for the nautical fault defence. What is the approach adopted in the Hamburg rules with regard to a carrier's liability and how does it differ from the approach adopted in the Hague-Visby rules.

(Hint: your answer to this question may be written in essay style).