Steps Followed In Freight Claim In The UK
Steps Followed In Freight Claim In The UK
Ocean carrier’s liability for loss or damage is governed by international laws or conventions such as the Hague rules. The UK also has laws t hat govern sea transport in general.
Freight claims are made by first trying to get the background of the agreements made between the various parties in the deal. This sometimes takes long because the period that that the claim is being made and the time when such agreements were drawn are very long and going back to fetch the details involves a lot of work in the archives. What that therefore means is that the person or company doing the claims should be prepared for a long period of the many steps that freight claims take Pollard (1999).
This can be very involving and it is even made worse by the fact that improper procedure could make you loose all what you are trying to have after maybe spending much more in trying to get it. This could run a company into serious losses. The contracting parties have t o be informed of every steps that a legal claim takes. The ship owners also know of the dangers of such steps and cause a lot of problems in making claims. The contracting party in are the ship owning company the hiring companies the consignee and any other parties that were directly involved n the consignment especially if they did a written agreement.
The issue of freight cannot be differentiated with the general principles that guide the carrier’s liability and the bill of lading. The “document of title” which h entitles the owner too demand the goods upon being delivered on the boat is the very same document that should guide the manner in which the shipping company should be disciplined enough to do just the same.
The carriers normally duties are t o receive, load, deliver and take care of the load right fro m the time it comes to his possession to when it is delivered. The document referred to above will guide international freight claims and lending the UK included. Some of the questioners that a re asked while claims arte made will include which of the parties are liable to fright payment, how much has t o be paid in the event that cargo is lost or damaged. In the case of VC and O the cargo will have t o be treated as damaged though there are laws guiding international shipping of oil or oil products.
Rules on the seaway bills were introduced into the UK law in 1992 and are still in operation today. It is referred to carriage by sea act and governs all sea transport issues. The Hague rules date back to as early as 1924 and are still observed to date. There are also the 1968 Hamburg rules which help protect t the “economic value” in the bill of lading and the legal character in the document on international law. The minimum value of such carriers therefore differs from one to another and should be respected that way (Pollard, 1999).
The next step would be establishing the minimum m amount that needs to be claimed from the shipping company so that it becomes easy for it initiate the case. The liability rules seeks to protect all interests of business persons involved in sea transport. The questions as to how t he cargo liability should be handled should not be a bother to the person doing the claim.
The law a so indicates how any person or the owner of the bill of lading should be demand the delivery of the goods subject to all the contractual liabilities involved. The interrelation between the sale and purchase agreements also plays a big role in determining the flow of the claim. In situation that the agreements were drawn to favor the company from which the claim is being made it will not be easy going through this application to be paid even for any damage incurred during the movement of such goods (Pendle, 2001).
The determination of freight is the next step. In liner traffic freight an individual customer may negotiate the amount depending on the market forces at a given time. There is a difference though between liner traffic and chartering, According to the UK law freight is always gotten through carriage and arrival of the goods being transported to the merchant. If a ship-owner fails to de liver the goods to the destined location then there will be no freight earned. This can complicate the claim procedure in the ca se being referred to here. Pollard (1999).
Given the distance that the vessel was being travelling there will be substantial reasons for the company to process claims because the various destinations served as payment points for transport eservices that were rendered and the company upon which claims is being made from had done enough business to be in a position to pay the claimant (Clark, 1998).
The security level of the vessel should be checked t o determine t he extent the paying company should be liable for any damages or loss of the goods that were suppose to be delivered. This can be a long process and involves a lot of documentation and many cases the state security personnel w ho in some cases have enough du ties in their hands, The security of any vessel and the goods t hat it carries s always a priority and should be take n seriously. That is why it is important for. Besides making the charterer liable to pay for any freight the law does not explicitly state or show that the shipper is fully obligated to do so. The owner of the goods can demand payment from the voyage operator the original shipper.
The claim will ultimately be paid especially in a situation where the ship-owner has a lien on car go for unpaid fright and had agreed to make a delivery. This is so regardless of the challenges that he is likely to face in the process of delivery of those goods. The [payment cn be made in full or can be divided periodically depending on the understanding between the two parties.
There are however a few cases where the shipper and the charterer can avoid liability of any kind while in business. This is in situations where the owner of the ship has protection for payment of due freight refereed to as “lien clause”.
The salvage process and the benefits to salvors
The salvor under the UK law requires states t hat property that is endangered in waters that are navigable has a right to be compensated from the owner. It is a very old law t hat was developed to motivate t hose who have participated in the salvage of endangered property. It is also mean t to discourage embezzlement by salvors who may want to take advantage of the situation during such times to enrich themselves. The right is attached to the property that is salvaged.
The elements of salvage claim.
There must be a peril to enable the company mitigate on the risks that could be involved, destruction or the depreciation of value of such property. The salvage must be done voluntarily and should not be necessarily completely salvaged. Even part of the salvage should be acknowledged. In the case in question the salvors will be paid in if due process is followed. The danger that the goods were subjected to need not be eminent or actual. If the vessel itself and t he crew has taken care of the situation then there is no need for any salvage and thus no compensation or payment of the same. In the salvor had a legal duty to assist they may not be compensated. But if they had just volunteered with the intention to safe the situation then they will be liable to second d element questions. There is for instance a past case involving towage which was compensated at a contract rate. The difference between salvage and towage is the former is un anticipated 00which causes the need for assistance. The case mentioned here was paid in this manner because the owner appreciated the work done by the salvor. But in situations where the salvor is acting without a direct or implied acceptance by the owner will not be paid. In the above case the salvor’s will be paid because the owner needed their assistance in the rescue of the voyage. This is an indication that he directly accepted the salvors to help. The salvor must undertake the salvage with resonable skills t o avoid further damage of the vessel. Any negligence will reduce the amount that should be paid. The salvor on the other hand it is not liable to losses that arise as a result of efforts t o salvage the goods.
Having to determine whether the salvors should be paid or not the next step becomes the amount that the y should be paid an d how much if so. Calculation of salvage follows. Many factors are considered when calculating salvage. The labor and the time spent doing the salvage is the first consideration towards compensation. The skill in salvaging g an d the efficiency is also important. The speed and the promptness in responding to salvage will in many times determine the success of the salvage. It is also factored in when calculating the salvage amount. The degree or extent of danger is also considered. The higher the amount of risk involved the higher the amount the salvors are paid. In the above case the salvors deserve to be paid if due procedure and law is observed (Pollard1999).
Modern propensity to criminalize the regulation of ship-source pollution
The recent tendency to criminalize pollution of ships is to some extent justified but is not justifiable also to some degree because of various reasons that support each case. Criminalizing turns a spotlight on the industry in general. It finds it’s achievements in causes great concerns t hat the criminalizing it will need that those practicing it should learn more about dealing with pollution cases of any kind.
The legislation that is there is relatively new and this will require that all those who go into contracts with regarding shipping especially of goods that are likely to cause pollution are careful not to put themselves in situations t hat can cause the m to be charged on those basis. There a re directives and complementary frameworks in dealing with shipping generally. The government also has a lot of measures in place to make sure that shipping is run in such a manner that water bodies are not affected by pollution. There is also the community or country responsibility to make sure that pollution in the sea does not go on uninhabited. There has to be some laws to guide the industry and general activities involving shipping.
Many journals that guide shipping and especially circumstances under which pollution becomes a criminal offence have been written. This has helped shade lots of light o n the topic that is comparatively little known or has been ignored for a long time. The number of people involved in sea transport compared to other form s of transport a re also few a and this has made it difficult to make practical the teachings on criminalizing pollution in the sea.
Internationally member states are required to criminalize the pollution of the sea and in the above case the country whose waters were polluted has a right to sue the company that caused the pollution and if possible demand compensation for all the damages and the work that will be done trying to clear the mess t hat pollution in the sea especially that caused by oil products causes. The numbers of cases that continue to be reported on sea pollution also continue to increase the more reason why it has t o be criminalized at leas t to mitigate on the risk that more accidents especially those that result from negligence can cause. It is also the state responsibility to bring such people and companies responsible for sea pollution to book regardless of whether they were in a position to change the situation or not what is important s the fact that the s ea has been polluted and it the state should demand an explanation of what might have happened. As court of law should therefore be given the responsibility to determine whether it is the right thing hold such people account table. In cases where t he y had little to do about it the country should not punish such companies involved in shipping. The best thing to do is to engage them in more lessons on how to prevent sea pollutio (Pollard 1999).
There are many instruments on ship source pollution that have been implemented so far in many continues. This should serve as an encouragement to the rest of the world that criminalizing shipping or sea pollution is t he way to go if the sea life has t o be maintained. The c omissions in the European parliament has previously made claims that the framework under which European member countries are subjected to the law on sea pollution should be amended to take care of the needs of all the countries and players in the same industry that may be dealing with circumstances that are unique in many y aspects given the different situations and shipping conditions around Europe and around the world. Previously before the adoption of European commissions and the European union there existed different laws in the various countries in Europe dealing g with the same subject. In fact some countries had not adopted pollution has a law in their countries and this could make it difficult to prosecute those who had to answer charges of polluting the sea. The problem therefore became how t o harmonize the laws to make sure that the differences and treatments in the various countries are reduced or totally avoided. In one of the cases involving the European Union the Commission and European Parliament claimed that this Framework Decision must be annulled since it should be for an EC instrument not an EU instrument to require Member States to use criminal sanctions for violations of EC environment law. In a nutshell, the question was: where should the splitting be between Community and intergovernmental? (Clark, 1998).
This dispute was referred to the Court of Justice. Pending the Court ruling, the negotiations on the ship source pollution proposal, which started in 2003, were threatened to be blocked but the Legislator decided ultimately to proceed with the adoption of the texts along the following lines:
The directive provides in its Article 4 that discharges are regarded as infringements, whilst the Framework Decision provides in its Article 2 that the infringements are regarded as criminal offences. In other words, the “incrimination” does not appear in the Community instrument, but in the intergovernmental instrument instead: the same splitting as for the environmental case referred to the Court.
Now the Court issued its ruling on the 13 September 2005 in this environmental case.
The Court confirmed the position of the Commission. Although, as a general rule, neither criminal law nor the rules of criminal procedure fall within the Community’s competence, that does not prevent the Community legislature, when the application of effective, proportionate and dissuasive criminal penalties by the competent national authorities is an essential measure for combating serious environmental offences, from taking measures that relate to the criminal law of the Member States; measures which it considers necessary in order to ensure that the rules which it lays down on environmental protection are fully effective (Clark, 1998)
This is an indication though many countries have bee n increasingly been participating in t he attempt to criminalize pollution in the sea it is still very difficult o find a situation that fits most regions around the world amicably. The situation in the Latin America North America Europe or Africa may not be the same. The willingness b y the states and its citizens to accept some facts on shipping have not been easy either. This makes it difficult for this law to eventually form part of the constitute ion inn many countries. The countries t hat find this worth doing though have been very supportive in making sure that other countries that do not have similar laws follow suit in doing so and this could really change sea transport for the better and make ship owners and all those involved in sea transport to be responsible enough for their actions.
The objective of sea transport ha s always been to make sure that goods especially the bulky ones that cannot be conveniently transported on air or by road are delivered to their destinations in an easy and comfortable manner. Sea transport presents that opportunity. The challenges that therefore come especially because of the developments in the sea including pollution have to be conclusively dealt with to avoid scenarios. Pollard (1999).
The negotiations on all the legislation has to be done in such a manner that all the operators should be sanctioned and brought to take responsibility of any pollution that their vessels cause in the sea. (Clark, 1998) The main reason why society is increasingly criminalizing pollution in the sea is because is to cover the whole chain of responsibility an d liability by these companies.
The unacceptable behavior is mainly because it is in line with the modern reckless attempt to improve modern penal law. The governments have to make sure though that the word serious negligence used in many constitutions is not used to mean only specific cases and therefore increase the chances of letting go many of the culprits w ho engage in acts that cause sea pollution. The most discouraging factor is the number of societies or countries that seem top condone the vice by not doing much to punish all those who are involved in sea pollution even in situations where there own (Clark, 1998).
Conclusion
The international standards on substance dictate that both master and servant be held accountable for any pollution activities in the sea and therefore make them feel, the directive to have this will fill the regulatory gap that many times leaves servants to be liable for the damages caused be ships whose owners are not keen to avoid (Pollard 1999).
MARPOL suggests that the owner of the ship and the servant the held accountable for the and especially if the owner of the ship ac ted with intent to cause the damage or, pollution that is witnessed. The main reason is mainly as a result of the many..In most third countries legislation that implements the desired goal of avoiding the pollution is present in very few countries. Even some countries that have a wide area of sea region is many times without such legislation that governs pollution (Pendle, 2001).
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