CHINA Law and Practice Contributed by: John Wang, Xu Jun, Song Jia and Zhao Yuxuan, Wang Jing & Co
• exercise due diligence to make the ship seaworthy before and at the beginning of the voyage; • perform duty of care for cargo properly; and • make no unreasonable deviation. However, the actual carrier may not have the obligation to issue the B/L or deliver the cargo, subject to their charterparty with the charter - ers. In addition, the contractual carrier shall be responsible for the entire carriage, while the actual carrier is responsible for their segment only. They can both seek recovery from each other under Article 65 of the CMC. Limitation of Liability for Cargo Damages Article 56 of the CMC states: “The liability of the carrier for the loss result - ing from loss of or damage to goods shall be limited to an amount equivalent to 666.67 Units of Account per package or other shipping unit, or 2 Units of Account per kilogram of the gross weight of the goods lost or damaged, whichever is the higher, except where the nature and value of the goods had been declared by the shipper before shipment and inserted in the bill of lad - ing, or where a higher amount than the amount of limitation of liability set out in this Article had been agreed upon between the carrier and the shipper... Where the article of transport is not owned or furnished by the carrier, such article of transport shall be deemed to be one package or one shipping unit”. According to Article 61, the above limitation of liability applies to both the contractual and the actual carrier. In addition, according to Articles 204 and 207, except for the unit limitation for the carrier, the ship-owner (including the charterer and the ship
operator) and the salvor could be protected by the limitation of liability for maritime claims stipu - lated in Article 210 of the same law. However, the carrier or the person liable will not be entitled to the benefit of limitations of liabilities stipulated in Articles 56 and 207 if the loss, damage or delay in delivery of the goods resulted from an act or omission of the carrier or the person that was done with the intention to cause that loss, damage or delay, or recklessly and with the knowledge that such a loss, dam - age or delay would probably result under Articles 59 and 209. “A person liable” in Article 209 refers to the per - son themself and does not include their serv - ant and agent. Therefore, the ship-owner is still entitled to benefit from the limitation of liability for a maritime claim if it is proved that the loss, damages or delay in delivery of goods resulted from the wilful or reckless acts of the Master, crews or agent, rather than themself. 3.4 Misdeclaration of Cargo The shipper shall indemnify the carrier against any loss resulting from the misdeclaration of general and dangerous cargo. In practice, for general cargo, in order to lodge a successful claim, the carrier needs to prove that the damage was caused by the fault of the shipper or their servant or agent. However, for dangerous goods, the court would normally apply the principle of strict liability. Per the case (2016) Supreme Court Min Shen No 1271, the Supreme Court held that, for danger - ous cargo, if (i) the shipper, including the actual shipper and non-vessel operating common car - rier, fails to notify or notifies the actual carrier inaccurately; (ii) the actual carrier has fulfilled its
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