USA Law and Practice Contributed by: Seward & Kissel LLP, Seward & Kissel LLP
3.3 Ship-Owners’ Liability and Limitation of Liability for Cargo Damages Under the COGSA, a ship-owner may not be liable if it is not the contractual carrier. However, the vessel itself may be liable in rem in respect of it carrying the cargo and ratifying the terms of the bill of lading. 3.4 Misdeclaration of Cargo A claim for misdeclaration of cargo would be treated as a breach-of-contract claim under the governing bill of lading. Federal district courts have approved of such claims. See, for example: • MSC Mediterranean Shipping Co v Metal Worldwide, Inc, 884 F Supp 2d 1269, 1275 (SD Fla 2012) (granting summary judgment to the carrier for breach of contract arising from the shipper’s failure to accurately declare weight and contents of the subject contain - ers); and • Mitsui OSK Lines, Ltd v CB Freight Int’l, Inc, No 4:16-cv-05002-KAW, 2016 US Dist LEXIS 181186, at *16 (ND Cal 16 December 2016) (granting default judgment upon numerous misdeclarations and misdescriptions of cargo over a period of years). 3.5 Time Bar for Filing Claims for Damaged or Lost Cargo Cargo claims must be brought within one year from the date when the goods were delivered or should have been delivered, under Section 3(6) of COGSA: 46 USC Section 30701 note (formerly codified at 46 USC Section 1303(6)). That said, claims for indemnity or contribution will typically not accrue until liability is fixed by a judgment against or payment by the indemnitee.
• Jones Act claims for negligence or general maritime claims for unseaworthiness; • wage and hour claims supplied by the Fair Labor Standards Act; or • wrongful death claims under the Death on the High Seas Act.
3. Cargo Claims 3.1 Bills of Lading
The US Carriage of Goods by Sea Act (COG - SA) governs all contracts for carriage of goods by sea to or from ports of the United States in foreign trade (and bills of lading as evidence of such contracts): see 46 USC Section 30701, Note Section 13. The COGSA governs the car - rier’s liability to cargo interests whenever a bill of lading or similar document of title is the con - tract of carriage. The “carrier” is identified in the COGSA as “the owner, manager, charterer, agent or Master” of a vessel and can include all owners or charterers involved with carrying the cargo. The USA applies a version of the Hague Rules through the Carriage of Goods by Sea Act and the Harter Act. The USA has also signed the Rotterdam Rules, which are not yet ratified. The COGSA has been in place for generations and provides a reasonable and predictable cargo loss and damage liability regime. 3.2 Title to Sue on a Bill of Lading Regarding the question of who has title to sue on a bill of lading, such cargo claims are typi - cally brought by cargo-owners or their subro - gated insurers. The terms of the bill of lading or any additional negotiated provisions will govern and courts in the United States recognise valid assignments of title to sue.
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