The fundamental breach of the contract of carriage of goods by sea : an analysis of the legitimate defences

Abstract

The aim of this research was to study and analyse the notion of fundamental breach of the contract of carriage of goods by sea. An analysis of the legitimate defences with regards to the such doctrine will be made. Moreover, there will be a thorough examination of the extent to which such legitimate defences apply. Primarily, there is a detailed analysis of the contracts of affreightment, mainly being the bills of lading and the charterparties. This includes a review of the functions and important clauses found in diverse types of bills of lading and charterparties. The second chapter of this thesis, focuses on the evolution and development of the doctrine of fundamental breach of the contract of affreightment along the years in different courts and its effects. The third chapter of this thesis, delves into the notion of deviation and deck stowage which amounts to fundamental breach of contract. Furthermore, there is the examination of the notion of the application of limitation of liability mainly focusing on the notion of the per package limitation. The extent to which such defence of per package limitation applies is analysed through various case law. The last chapter presents an outlook of all the conclusions reached in this thesis. Moreover, recommendations are made as a proposal for wider legislation on the regulation of fundamental breach of contract of carriage of goods by sea in Malta. These recommendations are put forward in order to amend the Maltese Carriage of Goods by Sea Act and the Commercial Code and to convert them into a more efficient source of law which aides and protects both the interests of the cargo owner and of the carrier in the same manner. This thesis will surely be of help to anyone who works in this sector, to be able to understand better the repercussions of fundamental breach.