RIGHTS AND OBLIGATION OF PARTIES UNDER THE CONTRACT OF CARRIAGE OF GOODS BY SEA
TABLE OF CASES PAGES
Archbold (Freightage) Ltd. v. S. Spanglett Ltd
(1981) 1 Q.B. 374 41
Asfar v. Blindell (1896) 1 Q.B. 123 45
Boardance v. Phipps (1967) 2 A.C. 46 58
Casebourn v. Avery and Houston (1887) S.T.L.R. 795 41
Dakin v. Oxley (1864) 15 C.B.N. 648 44
Heskell v. Continental Express Ltd. (1950) 1 All
E.R. 1033 53, 54
Hong Kong Fir Shipping Co. Ltd. v. Kawosoki
Jisen Kaisha Ltd (1962) 2 Q.B. 26 26
Hunter v. Prinsep (1808) 10 East 378 43
Kopitoff v. Wilson (1876)1 Q.B.D. 377 24
Maxime Footwear Co. Ltd. v. Canadian
Government Merchant Ltd. (1959) 2 All E.R. 740 26
Naruma and Sons Ltd. v. Niger Benue Transport
Company Ltd. (1989) 2 NWLR (Pt. 106) 703 at 764 25,26
Notana v. Henderson (1872) LR 7 Q.B. 225 55
Okoronkwo v. Standard Bank of Nigeria Ltd (1947
N.C.L.R. 315 at 327 13
Rhodes v. Fielder, Jones and Harrison (1919)
89 LJ.K.B. 15 60
Sanders Bro’s v. Maclean (1883) 11 Q.B.D. 327 11
Scaramanga and Co. v. Stamp (1880)5 C.P.D.
295 at 315 31
TABLE OF STATUTES
Nigerian Statutes
Carriage of Goods Act Cap. C2, Laws of the Federation of Nigeria 2004.
Article 1
Article III
Rule 1 (a) (b) (c)
Rule 4
Rule 8
Article IV
Rule 1
Rule 4
Rule 6
Article V
Merchant Shipping Act Cap M II Laws of The Federation of Nigeria 2004, S. 363
Foreign Statutes
Australia Sea Carriage of Goods Act 1904
Canadian Water Carriage Act 1910
Hague – Visby 1968
Article IV
Rule 2
Rule 3
Rule 4
Harter Act 1895
Merchant Shipping Act of England 1844, S. 493
New Zealand Seaman Act 1908
United States of Carriage of Goods By Sea Act.
ABSTRACT
Transportation is an integral factor in international trade and the contract of carriage of goods by sea, forms part of the complex web of transactions witnessed at international trade. The purpose of this project is to illuminate the nature and the inherent features present in the contract of Carriage of Goods by Sea and to also highlight the rights as well as the duties owed by the parties. It also seeks to point the obligations the law imposes on the parties as well as the liabilities they would incur on the event of breach in this form of contract.
CHAPTER ONE
THE NATURE OF THE CONTRACT OF CARRIAGE OF GOODS BY SEA
1.1 INTRODUCTION
Man has always been by his nature an interactive and interdependent being, and trade has been one of those means by which he interacts and shows his interdependency. He engages in the exchange of goods and services for a valuable consideration.
The concept of international trade is not new to man, only that here, this form of exchange seems to resonate on a much broader platform involving a complex web of structures and processes which makes this sort of transaction possible and one of this structure is the carriage of goods by sea, thus it is important to point out that, this form of transportation of goods is not only vital to international trade, but it also forms an integral part of it, that the absence it would make international trade very difficult to undertake.
Though our focus is the rights and obligations of parties under the carriage of goods by sea, full appreciation of this rights and duties will not be attained, if some attention is not given to highlight the nature of this form of transaction.
1.2 DEFINITION
The contract of carriage of goods by sea can easily be seen as a contract involving two parties who for an agreed sum agree to be bound by the terms reached by them. But this definition may be very misleading, for though the contract of carriage involve this important element it is not the same as the usual contracts reached and agreed by parties.
Perhaps looking at some definitions posed by some authorities, more light would be shed on the nature of this kind of contract. Clive M. Schmitthoff tried to give a vivid description as to the nature of this contract, here he said that a contract of carriage entails a situation where an exporter concludes with a ship owner to carry goods in his ship from one port to another, usually overseas, such contract is known as the contract of carriage by sea. R.M. Goode on the other hand sees a contract of carriage involving two parties the shipper and the carrier. The shipper is the person to whom the carrier undertakes the duty of transporting the goods.
Black’s Law Dictionary defines it as an agreement for carriage of goods by water, which may employ a bill of lading, a charter party or both to ship goods.
Finally, Article 1 Carriage of Goods By Sea Act defines contract of carriage as those that:
“Apply only to contracts covered by a bill of lading or any similar document of title, in so far as such document relates to the carriage of goods by sea, including any bill of lading or any similar document as aforesaid issued under a pursuant to a charter party from the moment at which such bill of lading or similar document of title regulates the relations between a carrier and a holder of the same”.
1.3 The Distinction between Contract of Carriage of Goods by Sea from other common carriers
The contract of carriage by sea is an aspect of the shipping law which has attracted strategic significance because the bulk of international trade is transacted through this medium. Carriage of goods may be by land (railway transport and road transport), by air, or by sea. In this paper, we shall focus on the contract of carriage by sea.
In Nigeria, there is a conspicuous absence of legislation in this aspect of the law. The only statute regulating the field is the Carriage of Goods by Sea Act 1. The Act incorporated into our legal system, what is generally referred to as the Hague Rules
- 44, Vol. II, Laws of the Federation of Nigeria 1990.
The Rules were made at the International Conference on Maritime Law, held at Brussels, in October 1922 when Nigeria was still a dependent nation.
A proper study of the subject of carriage by sea will raise the preliminary consideration of the term “common carrier”.
A common carrier is a person, or an association of persons, who follows the public vocation of a carrier, and undertakes generally to carry the goods of any person from one place to another in consideration of a payment in money, provided that he has room in his conveyance. It is important that he must publicly profess to carry goods for hire as a business and not as a casual employment.
A common carrier may operate with respect to a particular class of goods so long as he undertakes to carry for every one. But where a person reserves to himself, the right to reject goods whether his conveyance was full or empty, then he is not a common carrier but may be a private carrier. See BELFAST ROPEWORK CO. V BUSHELL[1]. Thus, a common carrier is under a duty to accept goods tendered to him for carriage. As we shall see presently, a common carrier has the onerous responsibility which approximates to that of absolute liability. It is always necessary to distinguish between one who is a common carrier and one who is not. An ordinary or private carrier is liable only as a bailee of the goods carried, i.e. he is only liable for negligence on the part of himself or his servants, whereas a common carrier is saddled with strict liability. Common carriers therefore occupy a similar position to that of insurers of goods. To this rule of strict liability of the common carrier, there are some exceptions:
- The Act of God. Generally on unforeseen loss or damage arising from natural forces outside human control e.g. storm, earthquake, flood, etc.
Loss from war.
- Inherent defect in the goods.
- Negligence of the consignor
Notwithstanding these well known exceptions, it has always been the practice for carriers to mitigate the rigors of this strict rule by the use of exemption clauses in the contract of carriage. However, whenever the courts are called upon to interpret such clauses, they construe them strictly against the carrier. Thus, if the clause is vague or unclear, no effect would be given to it. [1] 1918 IK.B. 210.
