INDIA Law and Practice Contributed by: Gautam Bhatikar, Deeksha Dev Singh and Isha Patil, Phoenix Legal
the sea, or any other cause that is beyond their control. If the ship-owner is the contractual carrier, mean - ing that they have entered into a contract with a shipper for the transportation of the cargo, their liability for cargo damage is limited. Under COG - SA, the liability of a contractual carrier for loss or damage to cargo is limited to a sum not exceed - ing 666.67 Special Drawing Rights (SDRs) per package or unit, or 2 SDRs per kilogram of gross weight of the goods lost or damaged, whichever is higher. It is important to note that COGSA provides for a presumptive limit of liability, which means that the ship-owner’s liability for cargo damages is presumed to be limited to the amounts specified under COGSA, unless the shipper can prove that the damage was caused by the fault or neglect of the ship-owner. In summary, the liability of ship-owners for cargo damages in India is governed by COGSA, and the extent of their liability will depend on whether they are the actual or contractual carrier, and on the specific circumstances of the case. 3.4 Misdeclaration of Cargo A carrier can establish a claim against the ship - per for misdeclaration of cargo. The carrier has a right to be fully informed about the nature, quan - tity and condition of the cargo being carried, as this information is necessary for the carrier to assess the risk and make proper arrangements for the transportation of the cargo. If the ship - per misdeclares the cargo, and the carrier incurs damages or losses as a result, the carrier may be able to recover those losses from the shipper through a claim.
In India, COGSA governs the liability of carriers in the event of misdeclaration of cargo. Accord - ing to COGSA, the shipper is responsible for declaring the nature and quantity of the goods being shipped and the carrier is entitled to rely on the accuracy of that declaration, unless it has knowledge to the contrary. There have been several recent judgments in India regarding claims for misdeclaration of car - go. In one case, the Supreme Court of India held that a carrier is entitled to recover damages from the shipper for misdeclaration of cargo if the carrier can show that it relied on the shipper’s declaration and suffered damages as a result. In another case, the Bombay High Court held that a carrier can claim damages from the shipper for misdeclaration of dangerous goods, even if the carrier was aware of the nature of the goods but relied on the shipper’s declaration regarding their safe carriage. It is important to note that each case involv - ing a claim for misdeclaration of cargo will be determined based on its own facts and circum - stances. It is advisable to seek the assistance of a qualified legal professional in determining whether a claim for misdeclaration of cargo can be established in a particular case. 3.5 Time Bar for Filing Claims for Damaged or Lost Cargo The time bar for filing a claim for damaged or lost cargo in India is governed by the Limitation Act, 1963, which sets out the time limits within which a claim must be brought in order to be considered valid. For claims based on breach of contract, the time limit is three years from the date when the cause of action arose. For claims based on liability in tort, the time limit is three years from the date
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