CARGO RECOVERY
I. MARINE CLAIM
Japan ratified the Hague Visby Rules in 1993. International Carriage of Goods by Sea Act (COGSA) was amended in accordance with Hague Visby Rules.
1) The recoverable amount
COGSA Art.12-2 (Hague Visby Rules Art.4 para.5 (b))
The total amount recoverable shall be calculated by reference to the value of such goods at the place and time at which the goods are discharged from the ship in accordance with the contract or should have been so discharged.
The value of the goods shall be fixed according to the commodity exchange price, or, if such price, according to the current market price, or if there be no commodity market price or the current market price, by reference to the normal value of goods of the same kind and quality.
The CIF value clause that the recoverable amount shall be based on the CIF value of the cargo shall be valid unless the claimants proves that the commodity market price actually exists in Japan and such commodity market price at the discharging place and on the discharging day is higher than the CIF.
The limitation of the carrier’s liability
COGSA Art. 13 para. 1 (the same as Hague Visby Rules Art.4 para5 (a) )
The carrier shall not in any event be or become liable for any loss or damage to or in connection with the goods in an amount exceeding the equivalent 666.67 SDR per package or unit or 2SDR per kilo of gross weight of the goods lost or damaged, whichever higher.
(SDR is the Special Drawing Right defined by the International Monetary Fund 1 SDR = approximately USD1,7)
The limitation of liability under Japanese law is quite higher than that under US law, USD 500 per package or the customary freight unit. Japanese laws do not have the idea of “ the customary freight unit.” Therefore, there may be the case that US limitation is higher than Japanese limitation. For example, the cargo is cars or any heavy machines and the freight unit is kilogram.
The container and the limitation
COGSA Art.13 para.3(Hague Visby Rules Art.4 para.5c)
Where a container, pallet or similar article of transport is used to consolidate goods, the number of packages or units enumerated in the bill of lading as packed in such article of transport shall be deemed to the number of packages or units for the purpose of this package or the units are concerned.
Except as aforesaid such article of transport shall be considered the package or unit.
Breaking the limitation
COGSA Art.13-2 (Hague Visby Rules Art.4 para5 (e))
The Carrier shall not be entitled to the benefit of the limitation of liability provided by the Article 13 if it is proved that the damage resulted from an act or omission of the carrier done with intent to cause damage or recklessly and with knowledge that damage would probably result.
It is very difficult to break the limitation in Japan.
2) The notice
COGSA Art. 12 para.1 (Hague Visby Rules Art.3 para.6 subparagraph 1)
If there is any partial loss of or damage to the goods, the receiver or the B/L holder shall give to the carrier the notice in writing of the general condition of the loss or damage at the time of receipt. Provided, however, that if the loss or damage is not apparent, the notice must be given within three days of the delivery of the goods.
Even if the notice is not given in time, the right to claim is not prejudiced.
3) The time bar
COGSA Art. 14 para.1&2 (Hague Visby Rules Art 3 para.6 sub paragraph 4)
The carrier shall in any event be discharged from all liability whatsoever in respect of the goods, unless is brought within one year of their delivery or of the
date when they should have been delivered. This period may be extended if the parties so agree after the cause of action has arisen.
In the mistakenly delivered case, the time shall be counted from the date when the cargo should have been delivered not from the actual mistakenly delivered date.
4) The application of COGSA
COGSA Art. 1
The provisions of this Act shall be applicable to the carriage of goods by sea either the loading port or the discharging port is not within Japanese territory.
The COGSA shall be applicable to the international carriage of goods by sea not to the domestic water carriage.
The COGSA shall be applicable to the carriage to which the Japanese law is agreed to be the governing laws or if the contract is made in Japan or the bill of lading is issued in Japan without any governing law agreement.
The COGSA does not have the provision equivalent to the Hague Visby Rules Art.10.
“The provisions of the Convention shall apply to every Bill of Lading relating to the carriage of goods between ports in two different States if:
a) the Bill of Lading is issued in a Contracting State or
b) the carriage is from a port in a Contracting State
c) the Contract contained in or evidenced by the Bill of Lading provides that the rules of this Convention or legislation of any state giving effect to them are to govern the Contract”
Even though the bill of lading is issued in Japan or the loading port is in Japan, the US governing law clause is valid.
The COGSA shall be applicable to not only the B/L but also the waybill or the contract of affreightment (COA) case even to the charterparty.
However, in case of the charterpaty, the clause which may be beneficial to the carrier shall be valid, for example the wider immunity clause, lower limitation clauses etc.
The COGSA shall be applicable from the receipt of the cargo to the delivery to the consignee, which is wider application than that of Hague Visby (from tackle to tackle). However, before loading onto the ship or after discharge of the cargo from the ship, the wider immunity clause or the lower limitation clause shall be valid.
In case of US local clause (JIFFA B/L 35) that if the carriage from the US or to the US, US COGSA shall be applicable to the carriage regardless of the Japanese governing law clause (JIFFA B/L 4) , shall be judged invalid at a Japanese court as long as the US COGSA is more beneficial to the carrier than Japan COGSA. In most of the cases, the package limitation is related. USD 500 per package or freight unit under US COGSA and 666.67 SDR per package or unit or 2 SDR per kilo under Japan COGSA. Therefore, the limitation of the carrier’s liability shall be Hague Visby limitation the accident occurred at sea from Japan to US even if the US local clause exists. However the US limitation can be applicable to the case that the accident occurred before loading and after discharge of the cargo. Then, if the cargo accident happened in the US, the limitation should be USD 500 per package.
If the cargo accident happened inland in Japan, Hague Visby Limitation may apply to the carrier and no limitation may exist for inland actual carrier.
5) The jurisdiction clause
The Japanese Supreme Court held on November 28, 1975 that the international exclusive jurisdiction clause, which shall exclude Japanese jurisdiction and agree the court in the specified country as the exclusive jurisdiction, shall be valid in general;
if the case is not within Japanese exclusive jurisdiction; and
if the agreed court has the jurisdiction over the case.
The international excusive jurisdiction clause which identify the defendant’s domicile as the exclusive jurisdiction is valid in general;
unless the jurisdiction agreement is extremely unreasonable and against the public policy.
Therefore, the jurisdiction clause which does not specified the country like ‘ the Ship’s flag law country’ or ‘the carrier’s principal place of business’ or ‘ the country where the carrier’s registered office exists’ shall be invalid,
Even if the country is specified, the country is the Flag of convenience country and the non-signatory country of Hague or Hague-Visby Rules, the jurisdiction may be considered invalid.
6) The lien
The great advantage of Japanese jurisdiction would be that the cargo claimants is entitled to the effective lien under the Limitation of the Shipowners’ Liability Law.
The ship can be arrested in the Japanese territory regardless of the governing law or the B/L jurisdiction.
The claimants shall present the evidence that the ship is liable for the cargo claim.
The order to take away the ship’s national certificate from the ship can be obtained before the ship arrives at the Japanese ports (Civil Execution Law Art.115). The order shall be in valid unless the certificate is actually taken away within 14 days time.(CEL Art 120)
It is possible to obtain the order in Tokyo but it necessary to come the nearest court where the ship arrives to take away the certificate.
The order may be obtainable at Muroran, Sendai, Tokyo, Yokohama, Niigata, Nagoya, Osaka, Kobe, Hiroshima, Takamatu, Kitakyushu or Naha.(CEL Rules Art 77)
The claimant should file the application for the formal arrest order based on the lien within 5 days from the obtaining the national certificate.
If the certificate is taken away, the shipping company should deposit the sufficient amount to the bureau of legal affair or present the PI’s letter of guarantee upon the confirmation of the court. in order to release the ship.
It is quite effective way to obtain the security. If it is actually arrest the ship, the cost would be from Yen 1m to 2m. If the order is obtained, PI will present the L/G without actually arresting the ship. In such a case, the cost would be much less subject to the consumed time.
Or if the ship is coming to Japan, it is possible to request the PI to issue the LG with the pressure of the arrest of the ship.
It is valid only one year and no time extension is allowed.
Ⅱ IN-LAND CLAIM
Commercial Code provides the article about the in land transportation.
1. Claim based on negligence
(Commercial Code Art.577)
The in land carrier shall be liable for the cargo loss or damage unless they can prove no negligence existed during all transportation including receipt, delivery, warehousing and transportation on the part of the carrier including themselves, their forwarder, their employee and other persons who are involved in the transportation.
2. Claim Amount
(Commercial Code Art.580)
Recoverable amount should be calculated based on the price of the goods at the place and time when and where the goods should have arrived.
No limitation amount is provided in Commercial Code.
The limitation amount agreed in the contract should be valid, but it may be overcome if the carrier’s negligence is proved.
However, if gross negligence exists on the part of the carrier, the carrier should pay the full amount of loss.(Commercial Code Art.581)
[Rail Road]
(Carriage by Rail Rule Art.50)
The shipper shall declare the amount of compensation if the cargo is valuable or animals.
The cargo more expensive than Yen 40,000 per kilogram shall be regarded valuable.
(Carriage by Rail Rule Art. 73)
If the amount of compensation is not declared, the railway carrier shall not be liable more than the amount below, unless no gross negligence of the carrier is proved;
Valuables: Yen 40,000 per kilogram but not more than Yen 4,000,000.
Animals; |
Cow or Ox |
Yen |
250,000 per head |
Calf |
Yen |
100,000 per head |
|
Horse |
Yen |
150,000 per head |
|
Pig |
Yen |
25,000 per head |
|
Dog |
Yen |
30,000 per head |
|
Other beast |
Yen |
20,000 per head |
|
Other animal |
Yen |
2,000 per kilogram |
|
|
but not more than Yen 200,000 |
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3. Valuable cargo
Commercial Code Art 578
“In case of the valuable cargo, the carrier shall not be liable for the cargo loss or damage, unless the shipper declared the details and the value of the cargo.
The valuable cargo should be declared. The valuable cargo means the cargo ,which is light and small but quite valuable ie. money, check, company share, gold, silver, jewelry etc.
If the non-declared valuable cargo is damaged. The carrier shall not be liable,
But if the claimants can prove the negligence of the actual carrier, the claimants may be able to overcome the valuable cargo immunity and obtain recovery may be 40%-60% of the cargo value. The court takes the shipper’s fault of valuables into consideration.
4. Notice
(Commercial Code Art.588)
If the damage is not apparent, the consignee should present the notice in writing within 2 weeks. Otherwise, the consignee shall not claim against the carrier unless the carrier has known the damage at the time of delivery.
5. Time bar
(Commercial Code Art.589 &566)
The consignee’s right to claim should be time-barred one year time of the delivery unless the carrier has known the damage at the time of delivery.
However, if it is possible to prove the carrier’s negligence, we can commence proceedings against the actual carrier in tort.
Furthermore, it may be possible to prove that the carrier knew the damage at the time of the delivery.
The time shall be extended 6 months by presenting the notice to the carrier but just once.
Ⅲ AIR CLAIM
Japan ratified Montreal Convention.
US also ratified Montreal Convention.
Therefore, the air carriage between Japan and US shall be governed by Montreal Convention.
1. The strict liability
Montreal Art.18 para1 & 2
1. The carrier is liable for damage sustained in the event of the destruction or loss of or damage to, cargo upon condition only that the event which
caused the damage so sustained took place during the carriage by air.
2. However, the carrier is not liable if and to the extent it proves that the destruction, or loss of, or damage to, the cargo resulted from one or more of
the following:
(a) inherent defect, quality or vice of that cargo;
(b) defective packing of that cargo performed by a person other than the carrier or its servants or agents;
(c) an act of war or an armed conflict;
(d) an act of public authority carried out in connection with the entry, exit or transit of the cargo.
2.The Limitation of Liability
Montreal Art.22 para3
3. In the carriage of cargo, the liability of the carrier in the case of destruction, loss, damage or delay is limited to a sum of 17 Special Drawing Rights per kilogram, unless the consignor has made, at the time when the package was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless it proves that the sum is greater than the consignor’s actual interest in delivery at destination.
3. The notice
Montreal Art.31 para2
2. In the case of damage, the person entitled to delivery must complain to the carrier forthwith after the discovery of the damage, and, at the latest, within seven days from the date of receipt in the case of checked baggage and fourteen days from the date of receipt in the case of cargo. In the case of delay, the complaint must be made at the latest within twenty-one days from the date on which the baggage or cargo have been placed at his or her disposal.
4. Time bar
Montreal Art. 35 para1
1. The right to damages shall be extinguished if an action is not brought within a period of two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.
5. Jurisdiction
Montreal Art.33 para1
1. An action for damages must be brought, at the option of the plaintiff, in the territory of one of the States Parties, either before the court of the domicile of the carrier or of its principal place of business, or where it has a place of business through which the contract has been made or before the court at the place of destination.
6. Liable Carrier
Montreal Art.40
If an actual carrier performs the whole or part of carriage which, according to the contract referred to in Article 39, is governed by this Convention, both the contracting carrier and the actual carrier shall, except as otherwise provided in this Chapter, be subject to the rules of this Convention, the former for the whole of the carriage contemplated in the contract, the latter solely for the carriage which it performs.
7. Inland Transportation covered by Air waybill
Montreal Convention shall not be applicable to the inland part.
Therefore, it may be possible to break the limitation of 17 SDR per kilo subject to the wording of the Air waybill.
Usual air waybill may not be well worded.
IV Japanese jurisdiction
When you commence proceedings in Japan, usually the case will be finished within 1year or 1year and half by the settlement or the judgment.
It may take longer if the case is complicated or appealed to the higher court.
We can get the instruction on no-cure no-pay out of pocket basis or time charge basis. (We will charge the disbursements.)
Fee basis would be 20% to 30% of the recovery depending on the recovery amount. Time rate would be Yen 35,000 per hour.
We have very effective lien over the ship with respect to the maritime claim.
We can arrest the ship (not sister ships) in Japan if she is or going to be in Japan regardless of the flag, the governing law, the jurisdiction clause or the demise charter.
If the insurance money is paid, the subrogated underwriter shall be entitled to commence proceedings or obtain arrest order in his own name.
When commencing proceedings or obtaining arrest order, the power of attorney signed by the president or the executive director who are entitled to represent the company and the company certificate showing the company’s name, address and the company representative.
Our package limitation in marine claim is higher than that of US law.
If the B/L has Japanese governing law clause (usually issued by a Japanese carrier), we can overcome the US local clause limiting the carrier’s liability to USD 500 and recover 666.67SDR per package or 2 SDR per kilo as long as the accident occurred during the sea going voyage.
If the case is against the in land carrier, we may be able to break the limitation in the contract as long as the carrier’s negligence is proved.
Anyway, the defendant is a Japanese or the Japanese jurisdiction is agreed, Japan is a suitable jurisdiction to settle. The court fee is epending on the claim
amount;
claim amount less than Yen 100,000 |
minimum is Yen 1,000 |
Yen 1,000,000 |
Yen 10,000 (1000 per100,000) |
Yen 5,million |
Yen 30,000(1000 per 200,000) |
Yen10million |
Yen 50,000(1000 per 500,000) |
Yen 100million |
Yen 320,000(3000 per 1m) |
The other cost would be postage about Yen 10,000. |
|
If the court is not in Tokyo, traveling cost is necessary.
We have only limited discovery system. We should identify the documents in the opponents’ hand.
We do not have deposition system.
Documentary evidence is important.
In most of the cases, the judge will take the initiative to reconciliation at the reasonable level.
Usually, interest is disregarded in the reconciliation.
However, 5% interest will be allowed in the judgment from the date when the claim document was received by the defendant.
The lawyers’ fee is not recoverable from the defeated party.
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(*1)Limitation has been changed from 17SDR to 19SDR per kilo on Dec.2009
《Reference》
【External Links ： OKABE & YAMAGUCHI COUNSELLORS AT LAW】
Lecture by Lawyer Shuuji Yamaguchi at 「１st INTERNATIONAL CARGO RECOVERY CONFERENCE」 in New York on 13 June 2008.
