Introduction to Carriage of Goods by Sea In Malaysia
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What is the source of law for carriage of goods by sea in Malaysia?
In Malaysia, carriage of goods by sea is governed by the Carriage if Goods By Sea Act 1950. This Act adopted most of the Hague Rules 1924. It applies to all goods shipped out of any ports in Peninsular Malaysia. The act is limited to carriage of goods by sea under a bill of lading. For the state of Sarawak, the Merchant Shipping (Implementation of Conventions Relating to Carriage of Goods by Sea and to Liability of Shipowners and Others) Regulations 1960 was used to govern carriage of goods. This Regulations is similar to the Carriage of Goods Act 1950 with exception of the change in the liability limit. This piece of Regulation was also enforced in the state of Sabah. Currently the Carriage of Goods By Sea (Amendment) Bill 2019 is in process. This bill, when passed by Parliament, will widen the ambit of the 1950 Act to use of waybills and ship delivery notes for carriage of goods by sea and it will also incorporate the Hague-Visvy Rules of 1968 together with the SDR Protocol Amendments 1979.
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What is a bill of lading?
A bill of lading is a document which is used for showing proof of carriage of goods, used as a receipt of the goods on board a ship, it also evidence the terms of a contract of carriage of goods and finally it is a document which can be used to transfer title in the goods on board a ship. This agreement is usually entered into between the seller of the goods and the carrier.
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How is a bill of lading regulated in Malaysia?
In Malaysia a bill of lading is regulated via the now repealed Bills of Lading Act 1855 (UK Act), which is adopted through sections 3 and 5 of the Civil Law Act 1956 to regulate all states and federal territories in Malaysia except the states of Pulau Pinang, Melaka, Sabah, Sarawak and the Federal Territory of Labuan. The UK act governs transfer of contractual rights in bills of lading to the transferee of the bills of lading. For the states of Penang, Melaka, Sabah and Sarawak, the bills of lading is regulated by the Carriage of Goods By Sea Act 1992 (UK Act) which is also incorporated into Malaysian legal system via the provisions of the Act 1956 mentioned above. With regards to the Federal Territory of Labuan neither the 1855 Act nor the 1992 Act applies until today.
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What are types of cargo claims available to cargo owners?
The types of cargo claims available are those provided for in the Hague and Hague-Visby Rules; claims arising out of common law implied terms such as seaworthiness, cargoworthiness, duty not to deviate, duty not to carry on deck, duty to take reasonable care of cargo on board; contractual claims; and tortious claims like conversion and negligence. Cargo claims can be affected by bailment and agency which are within Part IX and X of the Contracts Act 1950; burden of proof within sections 101 to 114 of the Evidence Act 1950; and the effects of transfer of property between seller and the buyer as seen within sections 18 to 30 of the Sales of Goods Act 1957.
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What is charterparties?
Charterparties are agreement of carriage of goods usually entered into by the shipowner and the carrier or charterer to transport the goods from one location to another by sea. The types of charterparties include bareboat charterparties (the entire ship is leased to the charterer), voyage charterparties (lease of ship for a single trip) and time charterparties (lease of a ship for use for a fixed period of time)
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What regulates Charterparties in Malaysia?
In Malaysia a charterparty is governed by the Contracts Act 1950, case laws and the contractual forms that parties utilise to enter into the charterparty e.g Bimco Barecon 2017, NYPE 2015, Bimco Baltime 1939, Bimco Supplytime 2017, Bimco Gencon 1994 etc
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What are the type of claims available for a breach of charterparty?
The usual claim available for a breach of a charterparty is the claim under the Contracts Act 1950, the relevant case laws thereto and the damages provided with regards to the terms within the forms used to enter into the charterparty.
This article is written by our Principal Associate, Chakaravarthi
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