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Third party liability and exemption clauses in the contract of carriage by sea

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Futer, John Frederick William (1983) Third party liability and exemption clauses in the contract of carriage by sea. Unspecified thesis, University of Tasmania.

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Abstract

Sea carriers in the past, have extended liability to their servants,
agents and sub-contractors through Himalaya clauses in the bills
of lading. However, there has been a complicated legal debate over third
party liability and exemption clauses in the contract of carriage by sea.
Complicated issues have made it difficult to determine who bears responsibility
for the goods from carriage to delivery. This will affect the
introduction of adequate insurance rates, which will in turn, apply to efficient
rates of carriage.
Some of the difficulties had been overcome by an established principle
of vicarious liability. However, this principle was short lived, as
it was severely restricted and later, well defunct.
The Privy Council decision of A. M. Satterthwaite and Co. Ltd. v New Zealand Shipping Co. Ltd., did successfully transfer indemnity to a
third party. However, the High Court decision of Port Jackson Stevedoring
Pty. Ltd. v Salmond and Spraggon (Australia) Pty. Ltd. failed to apply
the Eurymedon doctrine. Therefore, although the Enrymedon was not over
ruled, there was still opposition to third party indemnity under bills of
lading. The High Court initiated a search for fine distinctions involving
the capacity issue, construction of the agreement, consideration, agency
and fundamental breach.
The New York Star was appealed to the Privy Council, which reversed
the decision of the High Court. The status of third party liability was still somewhat unsettled until the matter was again tested and upheld
in Broken Hill Proprietary Co. Ltd. v Hapag-Lloyd Aktiengesellschaf
and others, and Sidney Cooke Ltd. v Hapag-Lloyd Aktiengesellschaf and
Another, decisions.
The principles in the House of Lord's decision in the New York
Star, which allowed the exclusion of stevedores under a bill of lading,
were transferred to the road haulage industry in Celthene Pty. Ltd. v
W.K.J. Hauliers Pty. Ltd. and Another, and upheld in Life Savers (Australasia)
Ltd. v Frigmobile Pty. Ltd. and Another.
It is apparent from these recent decisions, that a properly worded
limitation or exclusion clause, can operate to exempt the carrier's servants,
agents and independent contractors, from liability for damage or
loss of goods. Such an understanding makes it easier for cargo owners to
ascertain the risk they undertake when shipping their freight, and to
arrange for appropriate insurance coverage. The carrier, knowing that
his servants, agents and independent contractors employed from time to
time, are exempted from liability, can set competitive rates of carriage,
and discard high insurance costs.

Item Type: Thesis (Unspecified)
Keywords: Bills of lading, Limited liability
Copyright Holders: The Author
Copyright Information:

Copyright 1983 the Author - The University is continuing to endeavour to trace the copyright
owner(s) and in the meantime this item has been reproduced here in good faith. We
would be pleased to hear from the copyright owner(s).

Additional Information:

Thesis (M.Trans.Ec.)--University of Tasmania, 1984. Bibliography: l. 51

Date Deposited: 08 Dec 2014 23:58
Last Modified: 11 Mar 2016 05:56
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