PROVING ‘PERILS OF THE SEA’
The burden of proof as regards proving damages caused due to perils of the sea is always on the insurer. The insurer has to prove on a balance of probabilities that the ship was lost or damaged as the case may be, due to perils of the sea.
The Courts in various cases have stated that the mere proof of incursion of seawater into the insured vessel leading to its demise, is not sufficient to prove the presence of ‘perils of the sea’. It is so because mere entry of seawater in not a peril of the sea, but it has to be shown that the incursion was accidental or fortuitous.
The House of Lords in the famous case of Rhesa Shipping Co. S.A. v. Herbert David Edmunds, was faced with a situation where during a voyage on calm
This attention has garnered the interest of law and was the reason for national laws and international conventions to govern the shipping industry in general and seaworthiness in particular. This has resulted in some confusion as to whether seaworthiness means the same in different branches of Maritime Law. This section will deal with the relevance of seaworthiness in different branches of Maritime Law, its meaning and nature. It is the duty of the carrier to provide a seaworthy vessel. Although, not required in all seafaring activities, it still has a serious impact on different aspects of maritime law, e.g. Marine Insurance, Carriage of Goods by Sea, Salvage, etc. Hence, the definition of the term is important to define the term, and its different aspects, so as to recognize the consequences of the compliance with or the breach of such a duty.
Importance of the duty under Carriage of Goods by seaworthy; failing to do so will have a serious implication on his right to claim compensation for the loss he suffered. But does the meaning of seaworthiness under Marine Insurance differ from the one used for Carriage by Sea? The Marine Insurance Act states in Section 39(4) thus ‘A ship is deemed to be seaworthy when she is reasonably fit in all respects to encounter the ordinary perils of the seas of the adventure insured’. The section did not specifically point out what seaworthiness should include, it preferred to say instead that the ship should be reasonably fit in all respects. The reason behind this is explained by the drafter of the Act, Sir Mackenzie Chalmers, who said: “the words ‘in all respects’, in Section 39(4) include ‘manning, equipment and stowage’, but these additional words were cut out in the Lords, being regarded as unnecessary and probably restrictive”
While the Act used broad terms to define seaworthiness, it left to the courts the job of identifying what is a seaworthy vessel, according to the facts and circumstances surrounding each case. In one of the early cases on this issue, Dixon v. Sadler , seaworthiness of the vessel was defined thus: “she (the vessel) shall be in a fit state as to repairs, equipment,
“The Wreck of the Sea-Venture,” written by Peter Linebaugh and Marcus Rediker in their book Many Headed Hydra, tells the story of the shipwreck of the Sea-Venture en route to Virginia in 1669, which left the passengers of the ship stranded on Bermuda without a ship to continue the journey to Virginia. While the members of the Virginia Company made a boat to continue the journey, the remaining passengers of the Sea-Venture had to cooperate with one another in order to survive. The authors’ thesis in this document is the shipwreck of the Sea-Venture and the actions taken by the sailors portray the themes of early Atlantic settlement. For example, the sailing of the Sea-Venture was caused by expropriation. The Virginia Company advertised the New
This is a work about a maritime accident that occurred in the North Sea the early fall of 2007. In a chain of reactions, the accident harvested three lives; when it could have been prevented all from beginning and the normal operation could have gone through without me writing an assignment about it six and a half year later.
Document 2,Navigation Act of September 13, 1660 (An Excerpt) highlights Britain’s attempt to control commerce through international trade restrictions. The Navigation Act of September 13, 1660 which reinforces the Navigation Ordinance of 1651, an English government policy that banned foreign ships and third-party countries ships from transporting goods from outside Europe to England or any of its colonies. Under the Navigation Act, three-quarters of the ships’ crews must be English and products not produced by England could only be shipped from the colonies to England or other English colonies.
The early European explorers desired to reach out into the world and discover new pathways of the sea. Although, they most often did not have the funding needed for a ship, supplies, and a crew t...
Issue: 1) Is the defendant liable for restraining the plaintiff from leaving the yacht against her will 2) when the defendant refused the plaintiff the only possible means of reaching the shore 3) even though the defendant did not employ physical
In order to understand a plot of a story, one must be able to know what is going on in the story. In the selection, The Seafarer, the author recounts the tale of his disoriented life at sea. He douse the passage with aspects of emotion, value , and connotation. Without these qualities in The Seafarer, the story would be drastically changed. The way the author incorporates this information is through the story's setting. Setting is significant to The Seafarer because it allows readers to better visualize, understand, and ultimately relate to the plot of the story.
The liability for negligent misstatement may arise from pure economic loss. According to Steele (2010), ‘Economic losses will be regarded as “pure” if they do not flow from any personal injury to the claimant nor from physical damage to his or her property’. The boundaries between “pure” economic loss and the loss which is “consequential” from damage were established by the Court
To make a successful claim for this form of negligence there are four requirements that must be met; establishing a duty of care, proof of that duty of care being in breach, damages (this can include economic loss) and establishing that the beach has caused the damage. If a single one of those requirements are not met or are absent, the case will fail.
Container shipping industry is kind of international trade and destined restricted by los of regulation, such as ocean environment law, nation’s imports & exports law.
Introduction This submission will discuss the problems created by the Doctrine of Judicial Precedent and will attempt to find solutions to them. Whereas, English Law has formed over some 900 years it was not until the middle of the 19th Century that the modern Doctrine was ‘reaffirmed’. London Tramways Co. Ltd V London County Council (1898). Law is open to interpretation, all decisions made since the birth of the English Legal System, have had some form of impact whether it is beneficial or not The term ‘Judicial Precedent’ has at least two meanings, one of which is the process where Judges will follow the decisions of previously decided cases, the other is what is known as an ‘Original Precedent’ that is a case that creates and applies a new rule. Precedents are to be found in Law Reports and are divided up into ‘Binding’ and ‘Persuasive’.
terms firstly, where it involves two other contracts respectively. Then, I will mainly analyse the duties of the shipper in the contract of carriage. Next, the most discussion will be referred to the contract of marine insurance on the relationship between the assured and insured, as well as the insurance cover. Finally, I will analyse letters of credit as a method of pay... ... middle of paper ... ...
More than forty thousand merchant ships, and countless number of smaller coastal craft, ply world oceans which comprise nearly seventy percent of the earth’s surface. Each year approximately ten million containers of cargo, containing raw materials to finished goods are transported by seas. The ships are owned by different states, private companies or individuals and manned by mixture of seafarers from different countries, mixed together from various nationalities. These ships are perhaps the most autonomous entities on earth as rule of law allows frequent change of their allegiance or identity by choosing a flag to suit their requirement.
The concept of salvage entails the provision of assistance to a maritime property, mainly a ship, cargo or both which is facing a potential threat, officially described as “danger”; the main point differentiating salvage from towage. Danger, referring to either a present or a potential hazardous situation, has to be evidenced in court by the salvor in order for a claim to be considered as a salvage claim (Institute of Maritime Law, 2008, p.186).
The freight rate is the price of the carrier that pays by the charterer or ship owner. Freight rate is compulsory and it is measures by the value of goods, point of destination and the travel distance due to land, air or ocean. Freight rate also include with the custom clearance process. It is demanded by the fluctuation of supply and demand, the bargaining power of shipper, the competitors with other logistic company and the availability or alternative of transport modes (lorry, train and ship) (The Challenges Facing The Maritime Transport Industry,
Marine Insurance is defined by section 7 of the Marine Insurance Act of 1909 as: