Rights And Obligation Of Parties Under The Contract Of Carriage Of Goods By Sea

Project and Seminar Material for Law

Rights And Obligation Of Parties Under The Contract Of Carriage Of Goods By Sea


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.


Table of Contents


Pages

  • Title Page
  • Certification
  • Approval
  • Dedication
  • Acknowledgement
  • Table of Cases
  • Table of Statutes
  • Table of Contents
  • Abstract

Chapter One

The Nature of the Contract of Carriage of Goods by Sea

  • 1.1 Introduction
  • 1.2 Definition
  • 1.3 The Distinction Between Contract of Carriage of Goods by Sea from other Contracts 4
  • 1.4 Types of Contract of Carriage
  • 1.5 The Scope of the Act

Chapter Two

The Rights and Duties of Parties Under the Contract of Carriage of Goods by Sea

  • 2.1 The Rights and Responsibilities of the Carriage
  • 2.2 The Carrier’s Responsibilities
  • 2.3 The Carrier’s Immunities
  • 2.4 The Rights of the Carrier
  • 2.5 Limitation of Liability

Chapter Three

Duties of the Shipper

  • 3.1 Duty to Engage In Lawful Trade
  • 3.2 Duty to Tender Cargo
  • 3.3 Duty to Pay Freight
  • 3.4 Duty to Supply Information
  • 3.5 Duty Towards Dangerous Goods
  • 3.6 Rights of the Shipper
  • 3.7 Immunities of the Shipper

Chapter Four

The Role of Agents in the Contract of Carriage of Goods by Sea

  • 4.1 Definition of Agency
  • 4.2 Types of Agents
  • 4.3 Duties of An Agent
  • 4.4 Liability of Agents Under Carriage of Goods
  • 4.5 Independent Contractors

Chapter Five

Summary, Recommendations and Conclusion

  • 5.1 Summary
  • 5.2 Recommendations
  • 5.3 Conclusion
  • Bibliography

Chapter Five


Summary, Recommendations and Conclusion

5.1 Summary

From the foregoing chapters, we have been able to examine what constitute a carriage of goods contract and the obligations of parties in that contract.

In chapter one, we were able to distinguish between the contract of carriage from everyday contract and enunciate what constitute the nature of contract of carriage of goods by sea.

In chapters two and three, we were able to highlight the duties, the rights as well as the liabilities of parties, imposed by the act as well as the precedence laid down by common law.

Again in chapter four, we focused our attention on the importance of the agents whose role in this form of transaction can not be undermined.

The importance of the Carriage of Goods by Sea especially to parties involved in such agreement will continue to play a very important role in international sales transactions.

However, though its importance cannot be over emphasized, its also pertinent to point out some of the inherent flaws in the Hague Rule or the Carriage of Goods by Sea Act.

For example the rule does not afford protection to servants or agents of the carrier, when the issue of liability occurs. In most instances the carrier has to insert such terms of protection to auxiliary persons into the bill of lading, to cover any liability that may occur from the acts or omission from these persons. This however has been solved by the Hague – Visby Rule by virtue of Article IV (2) – (4) which protects the servants and agents of the carrier by paying the maximum liability which the Act stipulates.

Onyeakagbu A.I., draws our minds to an important fact, here he states that the developments of technological advancement in the shipping industry has rendered some of the concepts contained in the Rules anachronistic, as it could no longer meet the needs of time.

This position is true when considering the nature of this form of transaction. The system is one which engenders change, and such is seen in their practices and procedures. With constant change in the system, what we see is a different approach to issues and inevitability conflicts on different views by parties involved in such transaction.

Thus it could be frustrating if not difficult for parties to get any real remedy because in most cases the Act itself did not foresee this kind of problem.

Then again, there is the issue of value. The Carriage of Goods by Sea Act 2004, is still the same Act adopted in 1926, and the value the Act placed then cannot be said to practical in contemporary times. We see by virtue of Article IV (5), the Act stating 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…
What is actually suffered by some parties especially the shippers is that they are short changed and the real value of the good will not be attained, when there is a breach in the agreement.

All these problems led to a call for a review which saw the emergence of the Hague – Visby Rule and even more progressive by the Hamburg Rules in 1978, which to a large extent address the problems inherent in the Hague Rules and to a large extent struck a balance between the rights of the shippers and carriers, thus both the shipping nations as well as the cargo-owing nations had their interest properly identified and addressed.


5.3 Recommendations

The Carriage of Goods Act 2004 as to adopt a more progressive system that takes into consideration the various flaws already inherent in our Carriage of Goods by Sea Act.

Also, consideration should be given to the roles of agents and possibly independent contractors, as shown in the example of the Hague-Visby Rule which took care of this flaw inherent in the Hague Rule by adopting Article IV(2) – (4) as already enunciated in Chapter 4.

The Carriage of Goods by Sea Act 2004, fails to meet the needs of shippers, because of time it was adopted and the change in practice and regulation of the system together with the ever advancing speed of technology, which has made the system more complicated than that envisioned in 1926. Thus as an addendum to the first recommendation, the government through the legislature should adopt the Hamburg rule which to large extend encompasses the various interests of both the carrier as well as the shippers and other auxiliary persons in the carriage of goods by sea contract.


5.2 Conclusion

In conclusion, one recommends that rather than use the Hague Rule which is disguised as the Carriage of Goods by Sea Act 2004, the government and indeed the legislature should opt to adopt the Hamburg Rules, which is to a large extent move progressive than the Hague Visby Rule, in that it covers a large area which both the Hague and the Hague-Visby failed to consider, and which not only seek to protect the interest of parties, in such transactions, but also to protect our national interest, because to a large extent we are a cargo-owing nation, whose position is more to the side of the shippers.


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