PAKISTAN Trends and Developments Contributed by: Faisal Daudpota, Daudpota International
a gear certificate). In tort, the focus is on the failure to meet a societal standard of care (negligence). • Damages available – Tort claims allow for “foresee - able” damages at the time of the act, whereas con - tract damages are limited to what was “reasonably foreseeable” at the time the agreement was signed. • Remedy caps – As seen in Beluga A , contractual relationships often involve pre-negotiated caps (eg, the USD80,000 disbursement account cap). Courts are generally unwilling to allow “pure economic loss” claims in tort to bypass these caps unless the tort is independent of the contract. The following paragraphs highlight the relevant differ - ences between breach of contract and maritime tort (negligence). Breach of contract • Origin of duty: voluntary agreement; • Primary remedy: expectation damages; • Proof required: breach of agreed terms; • Privity requirement: yes (generally); and • Foreseeability timeline: at contract formation. Maritime tort (negligence) • Origin of duty: imposed by law/society; • Primary remedy: compensatory/punitive; • Proof required: duty, breach, causation, damage; • Privity requirement: no; and • Foreseeability timeline: prior to the wrongful act. Warranty of seaworthiness and technical waivers The obligation to provide a seaworthy vessel is a “core” component of any contract for the carriage of goods by sea. Historically, in common law, this duty was absolute: the ship-owner warranted that the ves - sel was “tight and fit” for the purpose, and ignorance of a defect was no defence. Due diligence and doctrine of stages Most modern maritime disputes are governed by stat - utes like the Carriage of Goods by Sea Act (COGSA), which replaces the absolute warranty with an obli - gation to “exercise due diligence” to make the ship seaworthy before and at the beginning of the voyage. In the Beluga A litigation, the court had to decide if the breakdown of two out of four cranes constituted
a breach of this duty. The court’s conclusion – that the provision of valid (though non-conforming) cer - tifications, combined with the plaintiff’s acceptance of them, discharged any duty of care – suggests that “due diligence” is increasingly measured against the standard of technical documentation accepted by the parties at the outset. This introduces a significant first impression issue in domestic jurisprudence regarding the Doctrine of Stages. Under common law, a vessel must be sea - worthy at the beginning of each distinct stage of the adventure. If a vessel is fit for harbour but not for the open sea, the warranty is satisfied if the vessel is made seaworthy before “breaking ground” for the next stage. However, in the Beluga A context, the court held that because the plaintiff chose not to repudiate the contract when the non-conforming gear certificates were presented before loading, they were barred from asserting unseaworthiness after the “loading stage” had commenced. This creates a high threshold for claimants: a failure to object to technical deficiencies at the earliest possible stage may be construed as a permanent waiver of the seaworthiness warranty for that specific defect. Future outlook: resilience of Admiralty Law The issues identified in Beluga A – particularly the final - ity of technical waivers and the exclusivity of demur - rage – suggest a judicial trend towards protecting the autonomy of commercial parties to define their own risks. Simultaneously, the “cutting edge” challenges of autonomous shipping and geopolitical trade bans will require the courts to develop more “pro-arbitration” and “pro-enforcement” schemes to maintain the effi - ciency of global trade. The High Court of Sindh’s recent dismissal of the Belu- ga A arrest application provides a definitive roadmap: where a dispute arises from a sophisticated commer - cial agreement, the court will prioritise the “certainty and clarity” of that agreement over the “indeterminate liability” of tort. This approach ensures that the action in rem remains a powerful but disciplined tool for mari - time justice, rather than a mechanism for commercial disruption in an already volatile global environment.
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