INDIA Law and Practice Contributed by: Gautam Bhatikar, Deeksha Dev Singh and Isha Patil, Phoenix Legal
seaman or other members of the crew of a ship” within its definition of employees. In the unfortunate event of a seafarer’s death caused by wrongful acts, neglect or default, the Fatal Accidents Act, 1855 provides compensa - tion to the family, although it is not as compre - hensive as the ECA. Notably, a claim under the Fatal Accidents Act requires a suit to be filed in the Indian Civil Court. The Merchant Shipping Act, 1958 imposes an obligation on the Master of an Indian-flagged vessel to enter into an agreement with a seafarer, ensuring compliance with the Act’s provisions. This agreement is mandated to encompass terms addressing compensation for personal injury or death arising out of or in the course of employment. Section 346 of the Merchant Ship - ping Act, 1958 reinforces the joint and several liability of ship-owners in cases where loss of life or personal injuries occur due to the fault of a ship, emphasising the responsibility of owners to provide compensation to the affected individuals or their families. Seafarers with a maritime claim against the ves - sel/owner for loss of life or injury could exercise this right to arrest the vessel.
International Convention for the Unification of Certain Rules of Law Relating to Bills of Lad - ing 1968 (the Hague-Visby Rules). Significantly, the legislation increased the limits as prescribed in the Hague-Visby Rules. However, the Rules do not, in themselves, have the force of law in India. The courts have also allowed carriers to take defences enumerated under Article IV of the Hague-Visby Rules (eg, fire). For COGSA to become applicable, the port of loading has to be in India – ie, COGSA applies to ships carrying goods from Indian ports to foreign ports, or between ports in India. 3.2 Title to Sue on a Bill of Lading Only a consignee of the goods named in a bill of lading or an endorsee to whom the property in the goods has passed by virtue of the bill of lading has title to sue – eg, the notifying party will be able to sue on a bill-of-lading contract. Under Indian law, a mere right to sue cannot be assigned or transferred. However, the actionable claim itself can be assigned. It is important to recognise the difference between a right to sue and the claim itself. 3.3 Ship-Owners’ Liability and Limitation of Liability for Cargo Damages In India, the liability of ship-owners for cargo damages is governed by COGSA, under which ship-owners are liable for damage to or loss of cargo carried on their vessels, subject to certain conditions and limitations. If the ship-owner is the actual carrier, they are responsible for ensuring the safe carriage of the cargo from the port of loading to the port of dis - charge. In this case, the ship-owner’s liability for cargo damages is not limited, unless the dam - age was caused by an act of God, fire, perils of
3. Cargo Claims 3.1 Bills of Lading
The Indian Carriage of Goods by Sea Act 1925 (COGSA) incorporates the International Conven - tion for the Unification of Certain Rules of Law relating to Bills of Lading 1924 (the Hague Rules) in its Schedule. In 1993, India amended COGSA and included certain provisions of the Protocol to amend the
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