PROBLL Essay Example
According to Sale of Goods Act 1896 (Qld) a contract of sale of goods is a contract by which the seller agrees to transfer or transfers the possessions in goods to the buyer for a money consideration, known as price. In the contract of sales of goods as per the Queens land Consolidated Act, sale is the act of when the property in the goods is transferred to the buyer from the seller. Consequently, when the goods are to be transferred in future, or when there are conditions to be fulfilled thereafter, the contract is referred to as an agreement to sell (Bridge 27). However, when the above contracts are breached in any case by the parties who are engaged in it, there exists likable remedies.
In the case of Kanga Pty Ltd who was seller entering into a contract with Sing Pty Ltd the buyer in Singapore which was based on the law of Queensland whereby there were occurrence of events during the shipment of goods to Singapore. As per Bridge (33), the refrigerator failed to work and hence the meat getting damaged along the way. The whole scenario is due to the conditions of goods which was evident that they were perishable. Coincidentally the damage occurred due to the electricity fault after the lightning struck the ship. And so, the whole case under Sale of Good Act 1896 can be referred to subject matter of the contract where the goods have perished before sale but there was an agreement to sell goods before they were delivered.
Apparently, the contract between the two firms of selling and buying the specific goods which was basically the meat led to perishing of the same good. Therefore, the goods perished without the fault of either the two firms. According to Duhl (99), the damage happened in unlikeable circumstance and so the seller Kanga Pty Ltd as no longer to answer to their description in the agreement before the risk passes to the buyer Sing Pty Ltd then the contract is considered void and it should be avoided. Contrary which does not appear in the following event, if the goods were damaged willingly on the side of a solo party, then the liability can be shifted accordingly to the seller for their negligence or inappropriate actions.
According to this situation, the part of the delivery is lost due to their perishable feature. The buyer may be in a position of accepting the 50 tonnes of cheaper kangaroo meat which were still in a better condition. Even though the whole agreement was based on the buyer receiving the whole package intact, the buyer firm might still be responsible for accepting the other part of undamaged package (Treitel 115). The amount received is obviously different than otherwise contracted and so the sale would only be voided if it was considered undividable. For instance, if the buyer agreed to purchase the whole 100 tonnes of meat but the damage occurred where 50 tonnes of meat had gone bad, then the sale is automatically indivisible. Sing Pty Ltd is then not obligated to complete the purchase of the remaining 50 tonnes of the cheaper kangaroo meat. However, Kanga Pty Ltd likely could obligate the buying firm to complete the purchase for the other remaining undamaged package.
As a general rule, the risk of goods is assumed by the owner of the goods. As per the Sale of Goods Act the seller is liable for all the risks that the goods accompany. Duhl (100) claims that only remains the same until the goods are transferred to the buyer, at this point, the risk is transferred along with the particular goods. All of these happens unless otherwise agreed by both parties. For instance, in this case neither the seller nor the buyer is deemed to be at fault and so the statutes and how the contract applies cannot be tramped whatsoever.
On the other hand, the limitations of the parties’ liability may be created in different circumstances of the situation. When the buyer in this case tries to base their claims based on the contract, the seller might not be liable at some point for the damages. Whether the damages are arising out of or connected with this Agreement or the Goods Act or when the damages exceed the price of purchase, the seller shall not be held liable. The contract is said to be void since the seller had no knowledge about the damages or rather the losses that were about to occur (Treitel 122). And so, this means that there is no answer that would be provided by Kanga Pty Ltd as of their description in the contract.
Under the Sale of Goods Act according to Queens Land law, the contract is only void if it is indivisible while on the other hand, if the contract is divisible, then it is not void. Therefore, when the situation of goods is divisible, and some part of the goods to be delivered to the buyer are available good condition, they should be accepted by the buyer (Treitel 114). The whole state happened without either of the parties’ faults and therefore it was in form of an agreement to sell and the contract is considered void making the seller Kanga Pty Ltd to bear the loss. Therefore, there are claims under the Sale of Goods Act that can be solved depending on the circumstances and the nature of the problems.
According to this case, the whole scenario is bound to Article III in reference to the amended Hague Visby Rules aligns which explains the responsibilities of the carrier. For some few years, article III have clarified a lot of responsibilities for those sailing ships. These errands are all found in The Hague Visby rules. The rules apply either in favor of the ship owner or against the ship owners depending on the circumstances at hand during the happening at that period. On the other hand, in the same Hague rule, there are a few weaknesses which are contained as far as those in use are concerned (Ülgener 33). This arose to the reason why it was slightly amended to Hague-Visby rules.
However, in Article III of Hague-Visby rules, the carrier shall be bound to exercise due diligence of the voyage before and at the beginning. The responsibilities that the carrier was bound to include making the ship sea worthy, the ship is supposed to have minimum manning as stated by the minimum safe manning documents. Also, the ship before any trip, it should in perfect state and in good working condition and this consisted of the ship equipment onboard. The supplies should also be counter checked so that the ship is safely run everything is on board (Girvin 20). Lastly, the holds must be fit to receive the cargo delivered and should also be clean and the carrier after loading of cargo it is necessary there is issue to the shipper a bill of lading.
For instance, the SS Pacific ship was not in the best condition because not enough time had been allocated to maintenance works during port stays. The Hull of the ship had cracks that were not detected or fixed. During the trip, the SS Pacific took on a substantial amount of water which drowned 456 cattle. This case evidently comes when clearly identifying the responsibilities of the carrier before the voyage. Article III states that the carrier is bound to make the ship sea worthy. Sea worthiness is the good state whereby the ship is ready to take the full trip with the whole no matter the period it will take to reach the destination where delivery is supposed to be made.
The duty of the shipper before the entire trip was to ensure that the cracks on the ships were repaired in before the take off. Fixing the whole problem would prevent plenty of water from entering the ship. Whenever such measure is taken all the 456 cattle would not have drowned at the time they were in the middle of the sea. The manner of the cargo carried during the voyage made it necessary for the owner of the ship to ensure that the vessel has proper degree of fitness (Ülgener 46). It is a condition that makes the owner of the ship to be careful and prudent whenever the vessel commences the trip in regard of all the probable circumstances. Hence as per the amended Hague-Visby rules the shipper would be held liable for the loss of the cattle which drowned in the sea.
In addition, to other shippers, physical fitness of the does not guarantee the essential standard of sea worthiness. It also depends on other features too. There other factors may comprise of the type of cargo carried, the nature and the age of the ship, the predicted means of voyage and all other absolute features and conditions. The unseaworthiness may lead to an automatic breach of duty. However, according to Hague-Visby rules lists other separate features that are likely to bring major concerns when dealing with sea unworthiness when preventing any form of breaching the contract made with the other party (Hull 25). For example, a competent crew, sufficient containers for the voyage, storage which affects the safety of the ship and deficient systems onto dry land or on board.
Also in a case whereby the SS Pacific was now moving very slowly and sea pirates boarded and took control of the ship and its cargo. The captain took evasive action but the evasive action was ineffective because it was carrying too much water. With all the happenings, the whole voyage was delayed including the arrival. However, because the trip was accompanied with various faults and unexpected occurrences, the delay would still be considered a breach of contract and the shipper would still be held liable. Roberts et al. (55) claim that it was when the ship was captured by the pirates which then later led to more day extended for the arrival of the cargo and the amount of cargo carried including the equipment on board. This then leads to another important point in article III whereby if the shipper does give any information related to cargo loaded or rather the cargo remaining. Because of all the inaccuracies, Article III indemnifies the carrier of all the losses and delays.
According to Hull (17), the carrier is only discharged from all the liabilities unless he or she is sued within a period of one year from the delivery of the particular cargo. And notice of the damage or loss of goods should be given within a time span of three days. Therefore, in this scenario, the lost livestock in the sea, the shipper is supposed to give a notice of three days where delivery would be done in Indonesia. The action remains advisable for shippers to avoid being liable at whatever cause (Hull 19). Therefore, confirming the remaining number of equipment on board makes it necessary for the other party to adhere to The Hague-Visby rules before indemnifying the shipper.
The duty of sea unworthiness is considered broken in several circumstances depending upon the applicable rule as per The Hague-Visby rules or express terms. The duty of the carrier is to provide a sea worthy vessel and if he does not go with the rule, the carrier shall be held liable if at all any loss or damage to the cargo is felt (Roberts et al. 51). It still applies even if the articular defect was not discoverable or concealed by due diligence. Also, by a virtue of Article III and IV of The Hague Visby Rules are applicable then it would be necessary that the duty be replaced by other duty so that it can exercise due diligence for the ship to be of sea worthy before and at the beginning of the voyage. Lastly, failure by the owner of the ship to ensure sea worthiness by any of the related parties, establishes the liability for the damages that may arise to the cargo.
Since the livestock and cargo were carried under bills of lading and the contracts excluded the carrier from liability for damage or loss to the livestock and cargo. And no mention was made in the contracts on whether the abattoir equipment would be carried on deck. Ülgener (73) states that the bills of lading issued by a carrier are mostly the documents offered for acknowledging the goods delivered. Therefore, the terms received by the other party included exclusion of the damages which were likely to occur. And so, the carrier never became liable whatsoever. It was considered so as the terms were laid in under the bills of lading. Generally, it holds the title and of the contract of carriage of goods.
Always, after the cargo is loaded the bill of lading remains issued by the carrier and then delivered to the shipper incase the he demanded the bill of lading. It is possible that provided the shipper takes the documents before he is allowed to surrender the same as opposed to the issue the bill of lading (Berlingieri 119). Once the cargo is delivered there are procedures to complete the contract. The carrier is entitled to acquire the document which includes the bill of lading. Therefore, the part on the contract which never included the mentioning of whether abattoir shall be carried on board gave the carrier opportunity to make the part of contract null and void (Roberts et al. 111). So, there was no breach of contract whatsoever but the bill of lading still remains important as per The Hague-Visby rules.
Inconclusion, the whole scenario of goods being perishable is due to the conditions of goods which was evident and so liability becomes void on the other party. On the other hand, the obligation of the carrier to the indemnity does not limit the carrier’s responsibility and liability. Other than the shipper, all the liabilities of the carrier remains on the contract of carriage.
Berlingieri, Francesco. «A comparative analysis of the Hague-Visby rules, the Hamburg rules and the Rotterdam rules.» Paper delivered at the General Assembly of the AMD, Marrakesh (2009): 5-6.
Bridge, Michael G. The international sale of goods: law and practice. Oxford University Press, 2007.
Bridge, Michael G., ed. Benjamin’s sale of goods. Vol. 11. Sweet & Maxwell, 2012.
Duhl, Gregory M. «International Sale of Goods.» Browser Download This Paper (2009).
Girvin, Stephen. Carriage of goods by sea. Vol. 7. Oxford University Press, 2011.
Hull, Jim, and VADM USCG. «Bill of Lading.» (2005).
Macleod, John, and James Devenney. Consumer sales law: the law relating to consumer sales and financing of goods. Routledge, 2009.
Roberts, Ralph L., and Steve F. Naghshineh. «Bill of lading transmission and processing system for less than a load carriers.» U.S. Patent No. 6,401,078. 4 Jun. 2002.
Treitel, Guenter Heinz. The law of contract. Sweet & maxwell, 2003.
Ülgener, M. Fehmi. «Obligations and Liabilities of the Carrier.» The United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea. Springer, Berlin, Heidelberg, 2011.
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