Cargo
Transport : Carriage & Insurance : What constitutes delivery
? ::- is it physical unloading of goods or mere
submission of documents or something much more !!
In
the sport of Cricket, a delivery is the ball that has been bowled – the single action
of the ball being hurled towards the batsmen.. in Marine cargo movement, it is
much more complex and technical… In any cargo movement, there may not be a
Buyer – Seller relationship; the goods may not be insured - but
most likely there would be a transport contract i.e., the agreement between the
consignor and the carrier [again there could be exceptions where the owner of
the goods also might be the Carrier !]
The
duration clause in the Inland Transit clause (A/B] would read that -
“
** This insurance attaches from the time the goods leave the warehouse and/or
the store at the place named in the policy for the commencement of transit and
continues during the ordinary course of transit including customary
transshipment if any
i.
until delivery to the final warehouse at the destination named in the policy or
ii.
in respect of transits by Rail only or Rail and Road, until expiry of 7 days
after arrival of the railway wagon at the final destination railway station or
iii.
in respect of transits by Road only until expiry of 7 days after arrival of the
vehicle at the destination town named in the policy
---------------------------
whichever shall first occur.** ”
What
constitutes delivery has been the subject matter of discussion and litigation
in many instances !
Going
by the Carrier Act of 1865 – the liability of the common carrier commenced from
the moment of acceptance of goods either by them or by their authorized
agents. An implied acceptance was construed to have taken place the
moment they permit the goods to be placed at the usual place of storage.
Upon
acceptance, the carrier becomes charged with the responsibility of safe
carriage to the destination and discharging them safely. The Carrier had
to fulfill this responsibility even if the route were to become expensive and
unprofitable for them due to any alteration of circumstances beyond their
control. The responsibility would begin with the receipt of goods and not
with the commencement of transit and would end by carriage to the place of
destination and providing consignee a reasonable time for taking away the
goods. What would constitute “reasonable” is always a ‘question of fact’
pertinent to each case….. and the point of delivery would also be determined by
the contract of carriage terms – whether at the place of the consignee or the
place of the carrier !
If
the goods remain at the custody of the Carrier after such reasonable time
pending consignee taking them away, after expiry of such reasonable period, the
Carriers ceases to be a carrier but becomes a custodian of the cargo akin to a
bailee.
What
is stated above and sought to be emphasized above, is the position of the
Carrier and that should not alter the liability or the extent of the liability
of an Insurer….
In India the document (thought
not a standardized one) issued by the Road carrier is known as ‘Lorry
Receipt (LR)’ and sometimes as Goods consignment Note (GC); elsewhere is
it called Waybill or Consignment note or CMR note. By whatever name, it
the document evidencing the contract between the Carrier and the entity
entrusting the goods and is not a document of title. In Europe, it
is CMR – for there is the Convention on the Contract for the International
Carriage of Goods by Road - an United Nations convention signed in Geneva on 19 May 1956. The terms
and conditions pertaining to transportation of cargo by road stands ratified by
all European countries and some outside Europe such as Lebanon and Iron. The CMR waybill
reportedly is a standard document.
More
of that and on the liability of the Carrier according to CMR and based on a
judgement in Nederlands in another post……………
With
regards – S. Sampathkumar.
18th
Aug 2011.
Dear Sampath,
ReplyDeleteThank you for writing interesting blogs on marine insurance. They are food for my thought.
-
With regard to delivery, I came across a case where the brief facts are as follows -
A truck driver reaches the gate of the destination point at night, and the security guard asks him to wait until dawn - when the concerned staff would arrive and allow entry of the truck into the premises. After about 2 hours, the truck driver changes his mind and takes a 'u turn'. He disposes off the cargo (known best to him), abandons the truck.
In your opinion does this not constitute delivery - trigerring a claim under a marine policy?