CARRIAGE OF GOODS BY SEA CONTENTS

1.0    Introduction

2.0    Objective

• Main Body
• Common Carriers
• Duties and Liabilities of a Common Carrier
• The Hague Rules on Carriage by sea

4.0    Conclusion

5.0    Summary

6.0    Tutor Marked Assignment

7.0    References/Further Reading

INTRODUCTION

The law relating to contract of carriage is today becoming increasingly important in international trade. The most important aspect of the   law of carriage is the carriage of goods by sea, and it is the main point of discussion in this unit. The role of the common carrier, his duties and liabilities as well as the laws relating to the carriage of goods by sea, the Hague Rules as it relates to the carriage of goods by sea shall also be discussed

There are two types of carriers in the carriage of goods by sea. They are private and common carriers.

OBJECTIVES

The purpose of this unit is to discuss the nature of carriage of goods by sea in commercial transactions as it exist globally. At the end of this course unit, the learner should be able to define common carriers and explain their duties and liabilities in contracts of carriage  of goods by sea.

MAIN BODY

Common Carrier

A common carrier is one who is engaged in the trade of carrying   goods as a regular business, and also holds himself out as ready to carry for anybody who may wish to employ him. In Great Northern Railway Co. v. L.E.P. Transport and Depository Ltd (1922) 2 K.B 742, the court held that a common carrier is a person who undertakes to transport from place to place, for hire, the goods of such persons as  he think fit to employ him.

A common carrier may also operate with respect to a particular class of goods so long as he undertakes to carry for everyone. In Ingate v. Christie (1950) 3.C and K 61, the defendant had the word lighterman posted up over the door of his office. It was established in evidence that he carried for anyone who engaged his craft. It was held that he was a common carrier.

Duties and Liabilities of the Common Carriers

The provision of common law as it relates to liability of the common carrier was absolute in relation to the safety of goods entrusted to  him. A common carrier is the insurer of the safety of  the  goods carried and therefore he is liable for any damage to or loss of them, whether occasioned by his negligence or not. For this reason, he needs to exercise proper care and skill in carrying out his duty. Such duties may be summarized as follows:

• the duty to accept and carry goods offered to him, in the  absence of lawful excuse and to charge no more than a reasonable price. The duty to carry implies that the carrier must not necessarily deviate from his customary route, and if he does so, he may be liable for deviation and become responsible for all losses.
• duty that the goods are safe, for he is an insurer of the
• to deliver the goods to the consignee at the place to which his is directed, otherwise he will be liable with misdelivery or conversion.

It is important to note that there are exceptions to the common position. They include:

• Act of God: this as the first exception, is that the  shipowner is not responsible for loss or damage resulting from an ‘Act of God’.

Before an act will qualify as an Act of God, it must fulfill  the following conditions stated in Nungent v. Smith (1876) 1C.P.D 423, Any accident as to which a common carrier  can show that it is due to natural causes directly and exclusively independent of human action, and it could not have been prevented by any amount of foresight and pains and care reasonably to have been expected from him.

• Kings Enemies: these are acts done by states or peoples with which the sovereign may be at war, at any time during the carriage of the goods.
• Inherent Vices: goods susceptible to damage or tendencies to easy deterioration; a carrier is not responsible for a loss or damage which has resulted from an inherent defect of the thing carried. See Nungent v. Smith (Supra).

There are situations where the common carrier exceptions do not apply. These are:

• Negligence: A carrier will be relieved from liability for damages to the goods arising from an act or omission on the part of the consignor.
• Deviation: Where the expected causes have occurred upon a departure from the proper prosecution of the voyage, as where  in the course of a deviation, the ship is lost by an Act of King’s enemies, the shipowner is not excused unless he can show that the loss must have occurred even if there had been no
• Unseaworthiness: The shipowner remains responsible for loss and damage to the goods, if the ship was not in a seaworthy condition when the voyage was commenced and if the loss would not have arisen but for that unseaworthiness.

The Hague Rules on Carriage by Sea

It is an international regulation, aimed at reconciling the interests of shipowners, cargo owner and insurers alike. The basic aim of the Act is to relieve a shipowner from his common law absolute liability. He is therefore liable only for negligence and is granted certain immunities. The major provisions of the Act are as follows:

• There shall no longer be any implied warranty of seaworthiness, except the carrier is expected to exercise due diligence to make the ship seaworthy at the beginning of the voyage.
• The carrier must properly and carefully load, handle, care and discharge the goods carried.
• And he must issue an appropriate Bill of Lading after loading of the goods.
  • Removal of the goods at the port of discharge into the custody of the person entitled to delivery is prima facie evidence that the goods have been delivered as described in the bill of lading.

There are certain rights and immunities enshrined in the rule but for the protection of the shipper and they are as follows:

1. The shipper shall not be responsible for loss or damages sustained by the carrier or the ship arising or resulting from any cause without the act, fault or neglect of the shipper, his agent or his servant
2. Any deviation in saving or attempting to save life or property at sea, or any reasonable deviation shall not be deemed to be an infringement or breach of these rules.
3. Goods of an inflammable, explosive or dangerous nature which the carrier, master or agent of the carrier has not consented to carry may at any time before discharge be  landed at any place or destroyed.

CONCLUSION

The carriage of goods by sea is a sensitive commercial transaction  that cannot be treated with impunity. Much care need be taken in  this area of commercial law. It is important to note that carriage of goods by sea has been largely governed by common law. All the strict common law liability and the exceptions to them are not left out of   the transaction.

The importance of this area of law cannot be overemphasized, as it is the major carrier of goods world over.

SUMMARY

In summary the carriage of goods by sea is a vital aspect of commercial transaction. The common carrier as a public carrier of goods, from one point to another, the duties of the carrier to exercise due diligence and the exceptions to the liabilities of the carrier are all important aspects of the law.

The role of the Hague Rule in the carriage of goods by sea cannot be overemphasized, the right and immunities imposed on the shipper  and as well as carrier have been discussed.

TUTOR MARKED ASSIGNMENT (TMA)

1. Explain the duties and liabilities of a common carrier and the exceptions available to the strict
2. Briefly explain the rights and immunities available to a shipper under the Hague Rules

REFERENCES/FURTHER READING

1. Sofowora, General Principles of Business and Coop Law, Soft Associates,
2. Sale of Goods Act,
3. Rawlings, Commercial Law, University of London Press,
4. Okany Nigeria Commercial Law, Africana-Fep Publisher, Limited, 1992.