Cargo damage remains a significant risk for Malaysian traders and shipowners. When goods arrive at Port Klang or Tanjung Pelepas in a damaged state, the Carriage of Goods by Sea Act (COGSA) provides the primary legal framework for seeking compensation. Navigating liability for cargo damage under the Carriage of Goods by Sea Act requires a precise understanding of the Hague Rules, which Malaysia has incorporated into its national legislation.
The Carrier’s Duty to Ensure Seaworthiness
Under COGSA, the carrier must exercise “due diligence” to make the ship seaworthy before and at the beginning of the voyage. If a shipowner fails to maintain the vessel’s holds or refrigeration systems, they face direct liability for cargo damage under the Carriage of Goods by Sea Act. The law does not demand perfection, but it does require that the carrier take all reasonable steps to ensure the ship can safely carry the specific type of cargo described in the Bill of Lading.
Available Exemptions and Statutory Defences
The carrier does not automatically pay for every loss. COGSA provides a list of “excepted perils” where the shipowner can avoid liability for cargo damage under the Carriage of Goods by Sea Act. These include “Perils of the Sea” (extraordinary weather), acts of war, or inherent vice of the goods themselves. To successfully claim these defences, the carrier must prove that the damage occurred despite their best efforts to manage the cargo properly.
Assessing the Financial Limits of Claims
Even when a court establishes liability for cargo damage under the Carriage of Goods by Sea Act, the carrier can often limit the total payout. Unless the shipper declares a higher value on the Bill of Lading, the law applies a “per package” or “per unit” limit. Our firm often helps clients navigate a limitation of liability for maritime claims in Malaysia to ensure that compensation figures align with statutory caps rather than the full commercial value of the lost goods.
Why Azhar Yong & Co is Your Best Choice
Choosing Azhar Yong & Co means securing a legal team that possesses rare technical insight. Because our firm includes a Master Mariner, we can scrutinise logbooks and engine room data to determine if a carrier truly exercised due diligence or if “perils of the sea” were actually preventable mechanical failures. We provide the most robust liability for cargo damage under the Carriage of Goods by Sea Act representation in Malaysia by bridging the gap between complex maritime operations and the courtroom. Our deep understanding of Malaysian port operations ensures your cargo claims are handled with unmatched precision and authority.
FAQs
Who carries the burden of proof for liability for cargo damage under Carriage of Goods by Sea Act?
The claimant must first prove the goods were delivered to the carrier in good condition and arrived damaged. The carrier must then prove they exercised due diligence to avoid liability for cargo damage under Carriage of Goods by Sea Act.
What is the time limit to file a claim for liability for cargo damage under Carriage of Goods by Sea Act?
Under the Hague Rules in Malaysia, you must generally bring a legal action within one year from the date the goods were delivered or should have been delivered.
Does the Carriage of Goods by Sea Act apply to deck cargo?
Usually, COGSA excludes cargo carried on deck if the contract specifically states so. However, the carrier may still face liability for cargo damage under Carriage of Goods by Sea Act if they stow the goods on deck without the shipper’s consent.
Can a carrier contract out of liability for cargo damage under Carriage of Goods by Sea Act?
No. Any clause in a Bill of Lading that tries to relieve the carrier of liability beyond what COGSA allows is generally considered null and void.
How does a limitation of liability for maritime claims in Malaysia affect my cargo claim?
Even if you prove liability for cargo damage under the Carriage of Goods by Sea Act, a limitation of liability for maritime claims in Malaysia may cap the payout based on the weight or number of packages involved in the shipment.