To what extent realistically can NVOCCs undertake the traditional responsibilities of a carrier, and can a claim stemming from delay of cargo delivery fall under COGSA? A US court had to deal with these questions in The Thorco Alliance [2018].
Summary of events: Vessel suffered a ME breakdown mid-voyage due to which cargo had to be transshipped. Transshipment costs had to be borne by the cargo interests initially, who were then reimbursed by their insurers. The insurers, as subrogees, were now seeking to recover that money from the carrier (NVOCC in this case), and alleged unseaworthiness and lack of due diligence on part of the carrier.
The court first questioned as to why a NVOCC, who is an intermediary, should be held responsible for unseaworthiness of a vessel when he has no direct physical control over her. Without burdening itself with answering this tedious question it simply said that delays are not addressed by US COGSA and given the express exclusion in B/L, the carrier is free of costs and liabilities for delay.
Notwithstanding the outcome, there is still a question mark over the responsibilities and liabilities of NVOCCs as carriers.
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