introduction to carriage of goods: bills of … · • under the carriage of goods act c2 lfn 2004...

INTRODUCTION TO CARRIAGE OF

GOODS: BILLS OF LADING

PRESENTED ON 29 JUNE 2011

AT A MARITIME LAW SEMINAR ORGANIZED BY

THE NIGERIAN MARITIME LAW ASSOCIATION

BY

MRS. MFON EKONG USORO, OOM

2

Outline

• Introduction

• Contract of carriage

– International Coventions on Carriage of Goods by Sea

– Implied Obligations in a Contract of Carriage

• Bill of Lading

– Features of Bill of Lading

– Effect of erroneous detail in a Bill of Lading

– Duties and Liabilities of the Carrier under the contract of carriage

– Demise or Identity Carrier Clause

– Arguments for Invalidating the Demise and Identity of Carrier Clauses

• Codification and Application of the Liabilities Regime of the Conventions in Nigeria

• Dispute Settlement

• Conclusion

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Introduction

• Carriage is the transportation of goods from one place to

another. This may be by land, air or sea and involves the

loading, stowage, unloading and delivery of cargo.

• Under the Carriage of Goods Act C2 LFN 2004 (COGSA),

carriage of goods covers the period from the time when the

goods are loaded on to the time when they are discharged from

the ship.

• In this paper, we will examine the bill of lading vis-à-vis its

functions and the major role it plays in the carriage of goods by

sea in Nigeria and international trade as a whole.

• We will also consider the liability regimes of the various

international conventions which govern carriage of goods by

sea alongside its application in Nigeria.

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CONTRACT OF CARRIAGE

• A contract of carriage is an arrangement between a shipowner

and a shipper by which the shipowner agrees to carry goods of

the shipper in his ship for a consideration of a payment known

as freight.

• The contract of carriage under the COGSA applies only to

contracts covered by a bill of lading or any similar document of

title in so far as such documents relate to the carriage of goods

by sea including any bill of lading or similar document.

• Where the shipowner gives the party the use of the whole or

part of the ship for the carriage of his goods, such a party is

known as a charterer and the contract is called a charterparty.

On the other hand, where the shipowner agrees to ship the

goods of a party as a carrying service, such a party will be

known as the shipper and the terms of the contract will be

evidenced by a bill of lading.

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International Conventions on

Carriage of Goods by Sea

There are four major legal regimes which govern

the carriage of goods by sea:

The Hague Rules (1924)

The Hague-Visby Rules (1968)

The Hamburg Rules (1978)

The Rotterdam Rules (2009)

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International Conventions on n


HAGUE RULES

• The Hague Rules was the first attempt made at unifying

rules relating to carriage of goods by sea. It aimed

specifically at the unification of rules relating to obligations,

liabilities, rights and immunities attaching to carriers under

the bills of lading.

• The main objective of the Hague Rules was to protect cargo

owners from excessive exclusion of liability by carriers which

was prevalent in that period.

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THE HAGUE-VISBY RULES

The changing mechanics of International trade (emergence of

containerization, political independence, judicial

pronouncements) necessitated a review of the Hague Rules.

•The Hague-Visby Rules, unlike its Hague counterpart,

mandatorily applies to any contract for carriage of goods by sea

falling under the specified circumstances, no matter the

applicable rule of contract. Its scope covers both inward and

outward shipment of goods

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8



THE HAMBURG RULES

• The modifications to the Hague Rules effected by the Brussels

Protocol in 1968 did not gain universal approval. Some

interests principally in developing countries were not satisfied

with the reform of the Hague Rules by Visby Amendments

and thought a new comprehensive approach.

• The United Nations Commission on International Trade Law

(“UNCITRAL”) thus initiated the re-examination of the rules

regulating carriage of goods by sea. The Convention known as

the „Hamburg Rules‟, became effective on 1 November 1992.

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9



THE ROTTERDAM RULES

• The development of faster ships, quicker port turn-arounds, the use of

e-commerce and other developments led to the negotiation of a new

Convention- International Convention on Contracts for the

International Carriage of Goods Wholly or Partly by Sea which is

referred to as the Rotterdam Rules.

• The aim of the Rules is two-fold-

• modernize the regime generally for the traditional “tackle-to-tackle”

and “port-to-port” carriage of goods.

• introduce innovative solutions to meet the demands of carriage of

goods on “door-to-door” terms by which the carrier undertakes

responsibility for not only the maritime leg but also the

intermediate and final land, inland waterway or air leg, from receipt

of the goods from the shipper until final delivery to the receiver.

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Implied obligations in a

Contract of Carriage

• Certain implied obligations which derive from the common law are

incorporated into the contract in the absence of any contrary

agreement. Some of the implied obligations are:

Implied obligation as seaworthiness

• Under the Common Law, the shipowner has the obligation to make

available a seaworthy vessel which means to provide a vessel that is fit

to meet and undergo the perils of the sea and other incidental risks.

• This obligation extends beyond the physical condition of the vessel

and includes the competence of the crew, adequacy of the facilities

and the cargo worthiness of the vessel.

• This point was emphasised in The Framlington Court [1934] A.M.C.

272 at 277, where the court held that:

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“Seaworthiness is a relative term depending for its application upon the type of

vessel and the character of the voyage. The general rule is that the ship must be

staunch and strong and well equipped for the intended voyage. And she must

also be provided with a crew, adequate in number and competent for the voyage

with reference to its length and other particulars, and have a competent and

skilled master of sound judgment and discretion”.

• In situations where the Hague-Visby Rules apply, the obligation

of the ship owner under Article III (1) is limited to a duty to

exercise due diligence.

Implied obligation of reasonable dispatch

• The shipowner or carrier has a duty to complete the contract

timeously. This means proceeding on the voyage, loading and

discharging the cargo within the agreed timelines. Where there

is no express indication as to time, the law implies that the

contract should be performed within reasonable time.

Implied obligations in a Contract

of Carriage

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Implied obligations in a Contract

of Carriage

• Where the contract is not performed within the agreed time or

reasonable time, the injured party is entitled to compensation

for any unreasonable delay.

Implied obligation not to deviate from the agreed route

• The shipowner or carrier are required to undertake that while

performing its obligations under the contract of carriage, it

will not deviate from the contract of voyage or deviate to any

other route which may materially increase the risks of

damage or loss to the cargo.

• Where this is not expressly provided, it is implied that the

proper route is the direct geographical route between the

ports of loading and discharge.

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Implied obligations in a Contract of

Carriage

Implied obligation not to deviate from the agreed route

• The shipowner or carrier are required to undertake that while

performing its obligations under the contract of carriage, it will not

deviate from the contract of voyage or deviate to any other route which

may materially increase the risks of damage or loss to the cargo.

• It is the usual custom for the parties to expressly state in the contract

the specific route of the voyage. Where this is not expressly provided, it

is implied that the proper route is the direct geographical route

between the ports of loading and discharge.

• In the case of Reardon Smith Line v. Black Sea and Baltic General

Insurance [1939] A.C. 562 Lord Porter stated

“it is the duty of the ship, at any rate when sailing upon an ocean voyage from

one port to another, to take the usual route between those two ports. If no

evidence be given, that route is presumed to be the direct geographical route but it

may be modified in many cases, for navigational reasons, evidence may always

be given to show what the usual route is, unless a specific route be prescribed by

the charterparty or bill of lading”.

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Carriage

Implied obligation to nominate a Safe Port

• Where a charterer has the right to nominate a port, he is under an

obligation to nominate a safe port. A port is considered safe if the

particular ship can use it within the relevant period without being

exposed to danger which cannot be avoided by good navigation and

seamanship.

• The shipowner has a duty to refuse a nomination where he is aware

that a particular port is unsafe. Where he enters into the nominated

port with the full knowledge that the port is unsafe, he will be

estopped from recovering compensation for any damage

subsequently suffered by his vessel.

Implied obligation not to ship dangerous goods

• The charterer has an implied obligation under Common law not to

ship dangerous goods without notifying the carrier or shipowner of

the nature of the goods.

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Carriage Implied obligation not to ship dangerous goods

• The charterer has an implied obligation under Common law

not to ship dangerous goods without notifying the carrier or

shipowner of the nature of the goods.

• Under the Rules, where the dangerous goods are shipped

without the consent of the carrier, the carrier can land and

destroy the goods without paying compensation to the

shipowner and the shipper will be liable for all damages and

expenses arising from such shipment

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Bill of Lading

What is a Bill of Lading?

• A bill of lading is a written evidence of a contract for the carriage

and delivery of goods transported by sea for freight.

• It is issued by the carrier to the shipper to acknowledge that the

goods have been received for carriage or shipped, and enables the

shipper to sell the goods though not in his custody at the material

point in time.

• In the case of B.M. Ltd. v. Woermann- Line (2009) 13 NWLR

(Pt.1157) 149 at 178 pars E-G, S.C the Court defined a bill of

lading as

“A writing signed on behalf of the owner of the ship in which goods are

embarked, acknowledging the receipt of the goods, and undertaking to

deliver them at the end of the voyage subject to such conditions as may

be mentioned in the bill of lading. The bill of lading is therefore a written

contract between those who are expressed to be parties to it.

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Bill of Lading

A Bill of lading has three major functions. It serves as:

• A receipt for the goods shipped;

• As evidence of the contract of carriage; and

• A document of title

Receipt For The Goods Shipped

• As a receipt, it contains statements as to quantity and

description of the goods as well as the condition in which the

goods were received.

• In the case of Ogwuru v. Co-op Bank, of E/N Ltd. (1994) 8

NWLR (Pt. 365) 685 at 687, pars. E-F, C.A, the Court stated

with regards to a bill of lading that:

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17

Bill of Lading

“it serves as receipt and that the goods therein have been taken on

board. Needless to say that bill of lading in its role as a “receipt” is

prima facie evidence of the truth of the statement contained in it. And

where a party disputes the content of the bill of lading the burden is

on that person to prove the error in the bill of lading.”

Receipt as to Quantity

• At common law, a bill of lading is prima facie evidence of the weight

or quantity of goods shipped. Where the quantity of goods shipped

is in question, the carrier has to establish that the goods were not

shipped as described in the bill of lading.

Receipt as to condition

• A bill of lading states the condition of the cargo at the point of

shipment. It usually contains the words “shipped in apparent good

order and condition…”.

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Bill of Lading

• In Compania Naviera Vascongada v. Churchill & Sim [1906] 1 K.B.

237, where a „clean‟ bill of lading was issued to the shipper who

indorsed it to a third party. The carrier was estopped by the statement

in the bill of lading from saying that the timber was in bad condition

when loaded and was therefore liable to the indorsee for the damage.

Receipt as to leading marks

• The bill of lading will usually record any identification or quality

marks appearing on the goods shipped. The shipowner will not be

estopped from denying that the goods were shipped under the marks

as described in the bill unless such marks are not essential to their

identity or description.

• The shipper can demand that the shipowner acknowledge such marks

and where the marks are not essential to their description, the

shipowner is under no obligation to acknowledge the quality marks

attached to the goods.

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Bill of Lading

As evidence of the contract of carriage

• On a standard bill of lading, the contractual terms

• between the shipper and carrier are set out on the reverse side of

the bill and constitute evidence of the contract of carriage between

the parties.

• The contractual terms are usually agreed orally by the parties before

the issuance of the bill of lading. It is the general view that the bill of

lading is not the contract but merely provides evidence of the

contract.

• The burden of proof lies with the party that alleges that the bill does

not represent the contract between the parties and in most cases the

burden is difficult to discharge. But once the bill is indorsed for value

to a bonafide third party, the bill becomes conclusive evidence of the

terms of the contract.

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Bill of Lading

As a document of title

• A bill of lading will function as a document of title where it is

drafted as an order bill. In such instances, the bill is written „to

order‟ of the consignee and the shipowner or carrier agrees to

deliver the goods to a named consignee.

• It is also sometimes serves as a document of transfer and governs

all the legal aspects of physical carriage, and like a cheque or other

negotiable instrument, it may be endorsed to effect the ownership

of the goods actually being carried.

• In Sanders v. Maclean (1883) 11 QBD 327, it was stated by

Bowen LJ that a “Bill of lading is a key which in the hands of a

rightful owner is intended to unlock the doors of the warehouse,

floating or fixed, in which the goods may chance to be and its

endorsement and delivery is a symbolical delivery of the cargo”.

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Features of Bill of Lading

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• A bill of Lading is usually addressed to the Consignee and may

be consigned to the order of the shipper.

• In general, the importer's name is not shown as consignee. The

bill of lading has also a provision for incorporating notifying

party. This is the person whom the shipping company will

notify on arrival of the goods at destination.

• The bill of lading also contains other details such as the name

of the carrying vessel and its flag of nationality, the marks and

numbers on the packages in which the goods are packed, a

brief description of the goods, the number of packages, their

weight and measurement.

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Effect of erroneous details in a bill

of Lading

23

• A bill of lading may be amended or corrected after it has been

issued, where it contains a significant error.

• In making the correction, the carrier cannot substitute another

bill of lading with terms inconsistent with the terms of the

original bill. A surrender and cancellation of the initial bill of

lading must be procured before the issuance of a further

original bill of lading.

• The carrier can make the necessary correction on the face of the

bill of lading and sign the correction. In some cases, a separate

document is issued containing the necessary correction.

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Duties And Liabilities Of The Carrier

Under The Contract Of Carriage

24

• The carrier or the master or agent upon receipt of goods is

required on demand of the shipper, to issue a bill of lading

which will show among other things, the leading marks

necessary for the identification of the goods as furnished by the

shipper before loading starts, together with either the number of

the packages or pieces of the quantity or weight.

• This obligation is mandatory and important to the shipper,

consignees and indorsees, for it lays the foundation for

statements in the bill of lading which may subsequently estop

the carrier from disputing receipt of the designated articles in

the apparent condition stated.

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Demise or identity of Carrier

Clause

25

• A Demise clause in a bill of lading for carriage of goods by sea simply

states that where a ship is not owned or chartered by demise to the

company issuing the bill of lading, then the contract evidenced by the

bill is solely with the owner or demised charterer.

• The demise clause states that the voyage/time charterer who issues

the bill of lading is not a party to the contract of carriage and is thus

not a carrier.

• It restricts the rights of suit of the shipper or consignee of lost or

damaged cargo, merely permitting them to take an action in contract

against shipowner, even though it is the charterer who has concluded

the contract of carriage, collected the freight, and performed most of

the duties of a carrier.

• An alternative method by which the charterer can avoid liability is to

insert an identity of carrier clause in the bill of lading.

• The above clause makes the shipowner personally liable in order to

arrest the ship.

• However these clauses restrict the rights of suit of the shipper or

consignee for lost or damaged cargo.

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Arguments for Invalidating the Demise and

Identity of Carrier Clauses

26

The Demise and Identity of Carrier Clauses are inconsistent with the

UCP 500 as they do not conform with the requirement to identify the

name of the carrier.

They breach Article III Rule 8 of the Hague-Visby Rules (or Similar

Provisions) which specifically prohibits a party from limiting or

excluding its liability under a contract of carriage beyond the

limitation regime found within the Rules themselves.

Joint and Several Contractual Liability

• In most cases, the shipowner and the charterer share the duties of a

carrier; the charterer is usually responsible for loading, discharging

at the ports visited (and any deviations), while the shipowner is

responsible for care of the cargo during the voyage.

• This in effect means that the carriage of goods by sea is in reality a

joint venture between shipowners and charterers, and that they are

thus jointly and severally liable to third parties.

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Comparative Analysis of the Liability

Regime of the International Conventions

S/

N

SUBJECT HAGUE

RULES

HAGUE-VISBY

RULES

HAMBURG

RULES

ROTTERDAM

RULES

1 Scope of

Application

limits the application

of the to bills of

lading issued in any

of the contracting

states.

Article 5 extends the

scope to apply to bills of

lading issued between

ports in two different

states if:

issued in a contracting

state, or

he carriage is from a

port in a contracting

state, or

the contract contained

in or evidenced by the

bill of lading provides

that the rules of this

Convention shall

apply.

Much wider scope

and departs from the

tackle-to-tackle scope

of the previous rules

to port-to-port scope.

extends to cover

any contract of

carriage evidenced by

a bill of lading or other

documents evidencing

the contract of

carriage by sea.

extended the

scope to include

other modes of

transport, such as

air and land.

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S/

N

SUBJECT HAGUE RULES HAGUE-VISBY

RULES

HAMBURG

RULES

ROTTERDAM

RULES

2. Goods and

Deck Cargo

Article 1 defines

“Goods” to exclude

live animals and deck

cargo.

Does not extend the

meaning of goods to

include livestock and

deck cargo.

Extends the

definition of goods to

include live animals

and goods

consolidated in a

container.

Deck cargo was not

excluded.

Article 25 (a-c)

allows for the

carriage of goods on

the deck of a ship.

limits the liability

of the carrier for loss

of or damage to

such goods, or delay

in delivery caused

by special risks.

3. Dangerous

Goods

Article 4 rule 6

defines “Dangerous

Goods” as “goods of

an inflammable or

explosive nature…”

No amendment to the

provision of the Hague

Rules with respect to

dangerous goods.

Places an obligation

on the shipper in Article

13 to label dangerous

goods and inform the

carrier of the

dangerous nature of

the goods.

Where the shipper

fails to do so, he will be

liable to the carrier.

The provisions

under the Hamburg

Rules were adopted

by Article 32.

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S/

N

SUBJECT HAGUE

RULES

HAGUE-VISBY

RULES

HAMBURG

RULES

ROTTERDAM

RULES

4. Content of a

bill of lading

Bill of lading shallbe prima facieevidence of thereceipt of the goodsby the carrier. Carrier is notbound to state anyinaccuracy as tonumber, weight,mark or quantity ofgoods received ofwhich he has noreasonable means ofchecking.

Bill of lading shall be

conclusive evidence of the

terms when transferred to

a third party acting in good

faith.

The Carrier or his

agent must insert a

reservation of any

inaccuracy in the bill of

lading.

Article 36 adopts

the provision under

the Hamburg Rules

though with some

modification.

Inaccuracy does

not affect the legal

character or validity

of the document.

5. Period of

liability

Article 1(e) limits

the period of liability

from the loading to

the discharge of the

goods from the

ships.

The Rule is silent on

this provision. This period was

extended by Article

4(2) from the time the

shipper has taken

control of the goods to

the time the goods are

actually delivered at

the port of discharge.

The period of

liability is the same

as is applicable

under the Hamburg

Rules.

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S/

N

SUBJECT HAGUE

RULES

HAGUE-VISBY

RULES

HAMBURG

RULES

ROTTERDAM

RULES

6. Limitation of

liability

Article 4(5) limits

the liability of the

carrier to £100 per

package or unit or

the equivalent of

that sum in other

currency based on

the gold standard.

The only

exception is the

declaration of value

by the shipper

before shipment.

Article 2 introduced a

weight-based criterion for

the determination of

liability.

The monetary value to

be claimed shall not

exceed the equivalent of

10,000 francs per

package or unit or 30

francs per kilo of gross

weight of the goods lost or

damages whichever is

higher.

Article 6(1)(a)

extended the

provision by limiting

the liability of the

carrier from loss of or

damage to goods.

Liability limited to

the equivalent to 835

units of account per

package or other

shipping unit or 2.5

units of account per

kg of gross weight of

the goods lost or

damaged, whichever

is higher.

Carrier ’s liability

is limited to 875

Special Drawing

Right (SDR)units per

package or 3 SDR

units per kilogram of

the gross weight of

the cargo, whichever

is the higher.

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S/

N

SUBJECT HAGUE

RULES

HAGUE-VISBY

RULES

HAMBURG

RULES

ROTTERDAM

RULES

7. Liability of

carrier

(basis)

Carrier liability

limited to voyage

and discharge with

exemptions which

are specified under

Article 4(2) and (3).

No significant

modification of this

provision under this

Rule.

Article 5 of the

Rules extended

carrier liability to

loss or damage of

the goods while in

his custody and

also to delay in the

delivery.

Economic loss

due to delay in

delivery is

recoverable and is

limited to a

multiple of 2.5

times the freight

payable on the

goods delayed.

8. Nautical

Fault

Defence

A carrier or his

agent may escape

liability by claiming

the myriads of

defences under

Article 4 Rule 2(a).

Article 3 provides

for the defences and

limits of liability of

the carrier by

extending it to apply

in actions for claims

in tort or contract.

Removal of

nautical fault

defence.

Removal of

nautical fault

defence.

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S/N SUBJECT HAGUE

RULES

HAGUE-

VISBY RULES

HAMBURG

RULES

ROTTERDAM

RULES

9. Applicability to

e-commerce

• No provision

for e-commerce•No provision for e-

commerce.

• Extended application

to paperless and

electronic means of

communication such as

telegraph and telex.

•Recognised other

transport documents

such as way bills and

electronic trading

systems.

10 Arbitration •No provision for

Arbitration or

dispute

resolution.

•No provision for

Arbitration or dispute

resolution

• Provides for the

Arbitration as a means of

settling disputes arising

under the convention.

• Article 75 includes the

right of parties to agree

after a dispute has

arisen to resolve it by

arbitration in any place.

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S/N SUBJECT HAGUE

RULES

HAGUE-VISBY

RULES

HAMBURG

RULES

ROTTERDAM

RULES

11 Jurisdiction No provision for

jurisdiction. No provision for

jurisdiction.

The Rules provided

for institution of

action.

Gives parties wide

discretion on choice

of court.

Article 21 of the

Rules adopted the

provisions of the

Hamburg Rules.

12 Limitation of

action

Limitation

period is one year

of delivery or

within one year

from the date

delivery should

have taken place.

Adopted the one year

limitation period with a

slight variation in respect

of indemnity claims.

Claimant must

commence his action for

indemnity within 15

months after its discharge.

Extended the time

bar for instituting a suit

from one year to 2

years from date of

delivery or when cargo

ought to have been

delivered.

Adopted the

Hamburg provision.

The time starts

running from the

date of delivery or

in cases where the

only part of the

goods is delivered,

on the last day on

which the goods

should have been

delivered.

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Codification And Application Of

Liability Regimes In Nigeria.

34

The Hague Rules

• The Hague Rules became part of our National Legislation on the 18

March 1926.

• If the carrier was held liable for cargo loss or damage the amount

payable under the Rules was not to exceed 100 pounds sterling.

• The relevant provision under the Nigerian Carriage of Goods by Sea

Act is Article IV Rule 5 which provides that,

“Neither the carrier nor the ship shall in any event be or become

liable for any loss or damage to or in connection with goods in an

amount exceeding N200 per package or unit, or the equivalent of

that sum in other currency, unless the nature and value of such

goods have been declared by the shipper before shipment and

inserted in the bill of lading…”

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Codification And Application Of Liability

Regimes In Nigeria

35

• However, by way of exception to this general rule, the liability of the

carrier or ship may exceed N200.00 (Two Hundred Naira) per package

where the value of the goods were declared prior to shipment and

stated on the bill of lading.

• The Hague Rule talks about “per package” or “per unit”. The meaning

of this came up for consideration in the Court of Appeal case of

Nigerian Shipping Line v. Gilbert Emenike (1987-1990) 3 N.S.C.

163 where it was held that package consisted of unit of carriage as

distinct from unit of existence.

• However, this position of law was departed from by the same Court in

the M/V “Caroline Mearsil” & Ors. V. Nokoy Investment Ltd.

(2007) 7 NWLR (Pt. 666) 587 C.A,

The Limitation Figure as domesticated from the Hague Rules

• The existence of the limitation figure of N200.00 (Two Hundred Naira)

in Nigeria‟s statute books has resulted in uproar amongst the cargo

interest lobby. The amount is considered too meager to qualify as

compensation for loss of any magnitude whatsoever.

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Regimes In Nigeria

36

The Limitation Figure as domesticated from the Hague Rules

• The existence of the limitation figure of N200.00 (Two Hundred Naira)

in Nigeria‟s statute books has resulted in uproar amongst the cargo

interest lobby. The amount is considered too meager to qualify as

compensation for loss of any magnitude whatsoever.

The application of COGSA

• It is important to note that it is not in every case brought before the

Nigerian Courts that the Nigerian Carriage of Goods by Sea Act will

apply. This is clearly stated in Section 2 of the Nigerian Carriage of

Goods by Sea Act.

• The Carriage of Goods by Sea Act is applicable only to contracts of

carriage where the port of loading is Nigeria without reference to the

port of discharge.

• However, where parties have by their express contract chosen Nigerian

Law, then the courts have been favourably disposed towards applying

Nigerian Law.

Mfon Ekong Usoro


Regimes In Nigeria

37

Limit of liability for claims in the Merchant Shipping Act, 2007

• The Merchant Shipping Act No. 25 of 2007 (“MSA”) is one of the

principal legislations that govern the shipping industry in Nigeria.

• The MSA in its section 356 makes provisions for the computation of

limits of the liability of the Carrier/shipowners for damage or loss to

good, personal injury and loss of life at sea.

• The provision was incorporated from Article 6 of the Convention on

Limitation of Liability for Maritime Claims, 1976 as amended by

Article 3 the Protocol of 1996.

Mfon Ekong Usoro


Regimes In Nigeria

38

Other Liability Regimes.

• Nigeria did not ratify the Hague - Visby Rules and the Hamburg Rules

so the need to codify the provisions into our legislation did not arise.

• However, Nigeria signed the Rotterdam Rules on 25 of September

2009 with 15 other countries. International treaties ratified by Nigeria

only become part of her municipal legislation when incorporated by an

enabling legislation.

• This requirement is clearly stated in Section 12 of the Constitution of

the Federal Republic of Nigeria 1999 which provides in subsection (1)

that no treaty between the Federation and any other country shall

have the force of law except to the extent to which any such treaty has

been enacted into law by the National Assembly.

• Thus, for the Rotterdam Rules to take effect in Nigeria, it must be

enacted into law by the National Assembly just as it was done with the

Hague Rules.

Mfon Ekong Usoro

Dispute Settlement

39

• Most contracts of affreightment include a clause providing that any

dispute arising thereunder shall be referred to arbitration. The

settlement of dispute through the means of arbitration as an

alternative to resolution by litigation is an obvious innovation of the

Hamburg Rules and equally followed by the Rotterdam Rules.

• The Hague Rules and the Hague-Visby Rules are silent on the means

of Arbitration settlement. However, the Hamburg Rules introduced

arbitration for settlement of dispute, for as long as an incorporating

charter party arbitration clause must be comprised in the bill of

lading as “special annotation.”

• The Rotterdam Rules further included the right of the parties after a

dispute has arisen, to agree to resolve it by arbitration in any place.

• The Rotterdam Rule gives a wide choice of forum in which a claimant

can institute a judicial or arbitral proceeding, provided such a law

court is competent in terms of its own domestic law.

Mfon Ekong Usoro

Conclusion

40

• An attempt has been made in this paper to examine the role of a bill

of lading in the carriage of goods by sea.

• The importance of the bill of lading is underscored by the number of

International Conventions that has been enacted to regulate its use

in international trade.

• The Nigerian COGSA does not represent the present state of affairs

in international trade on carriage of goods. There is a need to

overhaul the legislation in Nigeria as regards the Carriage of goods

by sea to embrace the recent trends in International Trade.

Mfon Ekong Usoro

41

THANK YOU

Mfon Ekong Usoro

introduction to carriage of goods: bills of … · • under the carriage of goods act c2 lfn 2004...

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