Act No. 6.pmd
CARRIAGE OF GOODS BY SEA ACT 2008
Arrangement of Sections
Part I – Preliminary
1. Short Title
2. Interpretation
Part 2 – Application of the Hague-Visby Rules
3. The Hague-Visby Rules to have the force of law
4. Application of the Hague-Visby Rules
5. Minister to specify amounts
6. Absolute warranty of sea worthiness not to be implied
7. Construction and Jurisdiction
8. Saving
9. Binding on the Crown
Schedule
Hague-Visby Rules
i
AN ACT
RELATING TO THE CARRIAGE OF GOODS BY SEA AND TO
GIVE EFFECT TO THE INTERNATIONAL CONVENTION FOR
THE UNIFICATION OF CERTAIN RULES RELATING TO ACTS
OF LADING
BE IT ENACTED by the King and Legislative Assembly of Tonga in the
Legislature of the Kingdom as follows:
Part 1 - Preliminary
1. Short Title
This Act may be cited as the Carriage of Goods by Sea Act 2008.
2. Interpretation
(1) In this Act, unless the contrary intention appears –
“Brussels Convention” means the International Convention for the
Unification of Certain Rules of Law relating to the bills of lading
done at Brussels on 25 August 1924;
“Hague-Visby Rules” means the Hague-Visby Rules incorporating
the English translation of the Brussels Convention, incorporating the
English text to the Amendments to that Convention by Articles 1
to 5 inclusive of the Visby Protocol and the SDR Protocol as set
out in the Schedule;
“SDR Protocol” means the Protocol amending the Brussels
Convention, as amended by the Visby Protocol done in Brussels on
21 December 1979;
I assent,
GEORGE TUPOU V,
1st June, 2009.
Tonga. No. 6 of 2008
[8th September, 2008]
SCHEDULE
HAGUE-VISBY RULES
Article 1
Definitions
In these Rules the following expressions have the meanings hereby assigned
to them respectively, that is no say.
(a) “carrier” includes the owner or the charterer who enters into a
contract of carriage with a shipper;
(b) “contract of carriage” applies only to contracts of carriage 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 water, including
any bill of lading or any similar document as aforesaid issued under
or 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;
(c) “goods” includes goods, wares, merchandise and articles of every
kind whatsoever, except live animals and cargo which by the contract
of carriage is stated as being carried on deck and is so carried;
(d) “ship” means any vessel used for the carriage of goods by sea;
(e) “carriage of goods” covers the period from the time when the goods
are loaded on to the time they are discharged from the ship.
Article 2
Risks
Subject to the provisions of Article VI, under every contract of carriage of
goods by water the carrier, in relation to the loading, handling, stowage,
carriage, custody, care and discharge of such goods, shall be subject to the
responsibilities and liabilities and entitled to the rights and immunities
hereinafter set forth.
Article 3
Responsibilities and Liabilities
1. The carrier shall be bound, before and at the beginning of the voyage,
to exercise due diligence to
(a) make the ship seaworthy;
(b) properly man, equip and supply the ship;
(c) make the holds, refrigerating and cool chambers, and all other parts
of the ship in which goods are carried, fit and safe for their reception,
carriage and preservation.
4 The Carriage of Goods by Sea Act – 6 of 2008
“Rules” means the Hague-Visby Rules incorporating the English
translation of the Brussels Convention, incorporating the English text
to the Amendments to that Convention by Articles 1 to 5 inclusive
of the Visby Protocol and the SDR Protocol as set out in the
Schedule;
“Visby Protocol” means the Protocol amending the Brussels
Convention done at Brussels on 23 February 1968.
(2) A reference in this Act to a non-negotiable document includes a reference
to sea waybill.
(3) A reference in this Act to the Rules is a reference to the English translation
of Articles 1 to 10 (inclusive) of the Brussels Convention 1924,
incorporating the English text to the amendments made to that Convention
by Articles 1 to 5 inclusive of the Visby Protocol and Article 11 of the
SDR Protocol as set out in the Schedule.
Part 2 – Application of the Hague-Visby Rules
3. The Hague-Visby Rules to have the force of law
The provisions of the Rules, as set out in the Schedule, shall have the
force of law in the Kingdom.
4. Application of the Hague-Visby Rules to contracts
The Rules shall apply to a contract of carriage of goods by sea that –
(a) is made on or after the commencement of this Act; and
(b) is a contract –
(i) of a kind referred to in Article 10 of the Hague-Visby Rules;
(ii) for the carriage of goods by sea from a port or place in the
Kingdom to another port or place in the Kingdom, being a
contract that is contained in or evidenced by a bill of lading
or similar document of title; or
(iii) contained in or evidenced by a non-negotiable document (other
than a bill of lading or similar document of title), being a contract
that contains express provision to the effect that the Rules shall
govern the contract as if the document as if the document were
a bill of lading.
5. Minister to specify amounts
(1) The Minister of Finance may specify and vary from time to time the
respective amounts that, for the purpose of Article 4, paragraph 5 of the
Schedule, are to be taken as the equivalent to the sums expressed in
Special Drawing Right which are mentioned in sub-paragraph (a) and (d)
of that paragraph.
(2) Where the Minister of Finance has not made a specification under
subsection (1), the respective amounts referred to in subsection (1) shall
be specified by the Reserve Bank of the Kingdom.
6. Absolute warranty of sea worthiness not to be implied
There shall not be implied in any contract for the carriage of goods by
sea to which the Rules apply by virtue of this Act any absolute
undertaking by the carrier of the goods to provide a seaworthy ship.
7. Construction and Juris-diction
(1) All parties to –
(a) a bill of lading or similar document of title; or
(b) a non-negotiable document described in section 4(b)(iii) relating to
such carriage of goods,
relating to the carriage of goods from any place in the Kingdom to any
place whether in or outside the Kingdom are deemed to have intended
to contract according to the laws in force at that place of shipment.
(2) Any stipulation or agreement (whether made in the Kingdom or
elsewhere) shall be illegal, null and void and of no effect in so far as
it purports to –
(a) preclude, lessen or limit the effect of subsection (1) in respect of
a bill of lading or a document mentioned in subsection (1)(b);
(b) preclude, lessen or limit the jurisdiction of the courts of the
Kingdom in respect of a bill of lading or a document mentioned
in subsection (1)(b); or
(c) preclude, lessen or limit the jurisdiction of the courts of the Kingdom
in respect of a bill of lading or a similar document of title or a
non-negotiable document described in section 4(b)(iii) relating
to the carriage of goods from any place within or outside the
Kingdom to any place in the Kingdom.
8. Saving
Nothing in this Act shall affect the operation of any law for the time
being in force limiting the liability of shipowners or others.
9. Binding on the Crown
The provision of the Act shall be binding upon the Crown whenever the
Crown is engaged in the carriage of goods by sea in a ship owned or
chartered by the Crown.
Passed in the Legislative Assembly this 8th day o September, 2008.
2 The Carriage of Goods by Sea Act – 6 of 2008 The Carriage of Goods by Sea Act – 6 of 2008 3
“Rules” means the Hague-Visby Rules incorporating the English
translation of the Brussels Convention, incorporating the English text
to the Amendments to that Convention by Articles 1 to 5 inclusive
of the Visby Protocol and the SDR Protocol as set out in the
Schedule;
“Visby Protocol” means the Protocol amending the Brussels
Convention done at Brussels on 23 February 1968.
(2) A reference in this Act to a non-negotiable document includes a reference
to sea waybill.
(3) A reference in this Act to the Rules is a reference to the English translation
of Articles 1 to 10 (inclusive) of the Brussels Convention 1924,
incorporating the English text to the amendments made to that Convention
by Articles 1 to 5 inclusive of the Visby Protocol and Article 11 of the
SDR Protocol as set out in the Schedule.
Part 2 – Application of the Hague-Visby Rules
3. The Hague-Visby Rules to have the force of law
The provisions of the Rules, as set out in the Schedule, shall have the
force of law in the Kingdom.
4. Application of the Hague-Visby Rules to contracts
The Rules shall apply to a contract of carriage of goods by sea that –
(a) is made on or after the commencement of this Act; and
(b) is a contract –
(i) of a kind referred to in Article 10 of the Hague-Visby Rules;
(ii) for the carriage of goods by sea from a port or place in the
Kingdom to another port or place in the Kingdom, being a
contract that is contained in or evidenced by a bill of lading
or similar document of title; or
(iii) contained in or evidenced by a non-negotiable document (other
than a bill of lading or similar document of title), being a contract
that contains express provision to the effect that the Rules shall
govern the contract as if the document as if the document were
a bill of lading.
5. Minister to specify amounts
(1) The Minister of Finance may specify and vary from time to time the
respective amounts that, for the purpose of Article 4, paragraph 5 of the
Schedule, are to be taken as the equivalent to the sums expressed in
Special Drawing Right which are mentioned in sub-paragraph (a) and (d)
of that paragraph.
(2) Where the Minister of Finance has not made a specification under
subsection (1), the respective amounts referred to in subsection (1) shall
be specified by the Reserve Bank of the Kingdom.
6. Absolute warranty of sea worthiness not to be implied
There shall not be implied in any contract for the carriage of goods by
sea to which the Rules apply by virtue of this Act any absolute
undertaking by the carrier of the goods to provide a seaworthy ship.
7. Construction and Juris-diction
(1) All parties to –
(a) a bill of lading or similar document of title; or
(b) a non-negotiable document described in section 4(b)(iii) relating to
such carriage of goods,
relating to the carriage of goods from any place in the Kingdom to any
place whether in or outside the Kingdom are deemed to have intended
to contract according to the laws in force at that place of shipment.
(2) Any stipulation or agreement (whether made in the Kingdom or
elsewhere) shall be illegal, null and void and of no effect in so far as
it purports to –
(a) preclude, lessen or limit the effect of subsection (1) in respect of
a bill of lading or a document mentioned in subsection (1)(b);
(b) preclude, lessen or limit the jurisdiction of the courts of the
Kingdom in respect of a bill of lading or a document mentioned
in subsection (1)(b); or
(c) preclude, lessen or limit the jurisdiction of the courts of the Kingdom
in respect of a bill of lading or a similar document of title or a
non-negotiable document described in section 4(b)(iii) relating
to the carriage of goods from any place within or outside the
Kingdom to any place in the Kingdom.
8. Saving
Nothing in this Act shall affect the operation of any law for the time
being in force limiting the liability of shipowners or others.
9. Binding on the Crown
The provision of the Act shall be binding upon the Crown whenever the
Crown is engaged in the carriage of goods by sea in a ship owned or
chartered by the Crown.
Passed in the Legislative Assembly this 8th day o September, 2008.
2 The Carriage of Goods by Sea Act – 6 of 2008 The Carriage of Goods by Sea Act – 6 of 2008 3
AN ACT
RELATING TO THE CARRIAGE OF GOODS BY SEA AND TO
GIVE EFFECT TO THE INTERNATIONAL CONVENTION FOR
THE UNIFICATION OF CERTAIN RULES RELATING TO ACTS
OF LADING
BE IT ENACTED by the King and Legislative Assembly of Tonga in the
Legislature of the Kingdom as follows:
Part 1 - Preliminary
1. Short Title
This Act may be cited as the Carriage of Goods by Sea Act 2008.
2. Interpretation
(1) In this Act, unless the contrary intention appears –
“Brussels Convention” means the International Convention for the
Unification of Certain Rules of Law relating to the bills of lading
done at Brussels on 25 August 1924;
“Hague-Visby Rules” means the Hague-Visby Rules incorporating
the English translation of the Brussels Convention, incorporating the
English text to the Amendments to that Convention by Articles 1
to 5 inclusive of the Visby Protocol and the SDR Protocol as set
out in the Schedule;
“SDR Protocol” means the Protocol amending the Brussels
Convention, as amended by the Visby Protocol done in Brussels on
21 December 1979;
I assent,
GEORGE TUPOU V,
1st June, 2009.
Tonga. No. 6 of 2008
[8th September, 2008]
SCHEDULE
HAGUE-VISBY RULES
Article 1
Definitions
In these Rules the following expressions have the meanings hereby assigned
to them respectively, that is no say.
(a) “carrier” includes the owner or the charterer who enters into a
contract of carriage with a shipper;
(b) “contract of carriage” applies only to contracts of carriage 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 water, including
any bill of lading or any similar document as aforesaid issued under
or 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;
(c) “goods” includes goods, wares, merchandise and articles of every
kind whatsoever, except live animals and cargo which by the contract
of carriage is stated as being carried on deck and is so carried;
(d) “ship” means any vessel used for the carriage of goods by sea;
(e) “carriage of goods” covers the period from the time when the goods
are loaded on to the time they are discharged from the ship.
Article 2
Risks
Subject to the provisions of Article VI, under every contract of carriage of
goods by water the carrier, in relation to the loading, handling, stowage,
carriage, custody, care and discharge of such goods, shall be subject to the
responsibilities and liabilities and entitled to the rights and immunities
hereinafter set forth.
Article 3
Responsibilities and Liabilities
1. The carrier shall be bound, before and at the beginning of the voyage,
to exercise due diligence to
(a) make the ship seaworthy;
(b) properly man, equip and supply the ship;
(c) make the holds, refrigerating and cool chambers, and all other parts
of the ship in which goods are carried, fit and safe for their reception,
carriage and preservation.
4 The Carriage of Goods by Sea Act – 6 of 2008
2. Subject to the provisions of Article IV, the carrier shall properly and
carefully load, handly, stow, carry, keep, care for and discharge the goods
carried.
3. After receiving the goods into his charge, the carrier, or the master or
agent of the carrier, shall, on demand of the shipper, issue to the shipper
a bill of lading showing among other things.
(a) the leading marks necessary for identification of the goods as the
same are furnished in writing by the shipper before the loading of
such goods starts, provided such marks are stamped or otherwise
shown clearly upon the goods if uncovered, or on the cases or
coverings in which such goods are contained, in such a manner as
should ordinarily remain legible until the end of the voyage;
(b) either the number of packages or pieces, or the quantity, or weight,
as the case may be, as furnished in writing by the shipper;
(c) the apparent order and condition of the goods:
Provided that no carrier, master or agent of the carrier shall be bound
to state or show in the bill of lading any marks, number, quantity,
or weight which he has reasonable ground for suspecting not
accurately to represent the goods actually received or which he has
had no reasonable means of checking.
4. Such a bill of lading shall be prima facie evidence of the receipt by
the carrier of the goods as therein described in accordance with paragraphs
3(a), (b) and (c).
However, proof to the contrary shall not be admissible when the bill
of lading has been transferred to a third party acting in good faith.
5. The shipper shall be deemed to have guaranteed to the carrier the accuracy
at the time of shipment of the marks, number, quantity and weight, as
furnished by him, and the shipper shall indemnify the carrier against all
loss, damages and expenses arising or resulting from inaccuracies in such
particulars. The right of the carrier to such indemnity shall in no way
limit his responsibility and liability under the contract of carriage to any
person other than the shipper.
6. Unless notice of loss or damage and the general nature of such loss or
damage be given in writing to the carrier or his agent at the port of
discharge before or at the time of the removal of the goods into the
custody of the person entitled to delivery thereof under the contract of
carriage, or, if the loss or damage be not apparent, within three days,
such removal shall be prima facie evidence of the delivery by the carrier
of the goods as described in the bill of lading.
If the loss or damage is not apparent, the notice must be given within
three days of the delivery of the goods.
The notice in writing need not be given if the state of the goods has
at the time of their receipt been the subject of joint survey or inspection.
5. (a) Unless the nature and value of such goods have been declared by
the the shipper before shipment and inserted in the bill of lading,
neither the carrier nor the ship shall in any event be or become liable
for any loss or damage to or in connection with the goods in an
amount exceeding 666.67 units of account per package or unit or
2 units of account per kilogram of gross weight of the goods lost
or damaged, whichever is the higher.
(b) The total amount recoverable shall be calculated by reference to the
value of such goods at the place and time at which the goods are
discharged from the ship in accordance with the contract or should
have been so discharged.
The value of the goods shall be fixed according to the commodity
exchange price, or, if there be no such price, according to the current
market price, or, if there be no commodity exchange price or current
market price, by reference to the normal value of goods of the same
kind and quality.
(c) Where a container, pallet or similar article of transport is used to
consolidate goods, the number of package, or units enumerated in
the bill of lading as packed in such article of transport shall be
deemed the number of packages or units for the purpose of this
paragraph as far as these packages or units are concerned. Except
as aforesaid such article of transport shall be considered the package
or unit.
(d) The unit of account mentioned in this Article is the Special Drawing
Right as defined by the International Monetary Fund. The amounts
mentioned in sub-paragraph (a) of this paragraph shall be converted
into national currency on the basis of the value of that currency
on the date to be determined by the law of the Court seized of the
case. The value of the national currency, in terms of the Special
Drawing Right, of a State which is a member of the International
Monetary Fund, shall be calculated in accordance with the method
of valuation applied by the International Monetary Fund in effect
at the date in question for its operations and transactions. The value
of the national currency, in terms of the Special Drawing Right, of
a State which is not a membe of the International Monetary Fund,
shall be calculated in a manner determined by that State.
Nevertheless, a State which is not a member of the International
Monetary Fund and whose law does not permit the application of
the provisions of the preceding sentences may, at the time of
ratification of the Protocol of 1979 or accession thereto or at any
time thereafter, declare that the limits of liability provided for in
this Convention to be applied in its territory shall be fixed as follows.
(i) in respect of the amount of 666.67 units of account mentioned
in sub-paragraph (a) of paragraph 5 of this Article, 10,000
monetary units;
The Carriage of Goods by Sea Act – 6 of 2008 58 The Carriage of Goods by Sea Act – 6 of 2008
Subject to paragraph 6bis the carrier and the ship shall in any event be
discharged from all liability whatsoever in respect of the goods, unless
suit is brought within one year of their delivery or of the date when
they should have been delivered. This period may, however, be extended
if the parties so agree after the cause of action has arisen.
In the case of any actual or apprehended loss or damage the carrier and
the receiver shall give all reasonable facilities to each other for inspecting
and tallying the goods.
6. bis An action for indemnity against a third person may be brought even
after the expiration of the year provided for in the preceding paragraph
if brought within the time allowed by the law of the Court seized of
the case. However, the time allowed shall be not less than three months,
commencing from the day when the person bringing such action for
indemnity has settled the claim or has been served with process in the
action against himself.
7. After the goods are loaded the bill of lading to be issued by the carrier,
master or agent of the carrier, to the shipper shall, if the shipper so
demands, be a “shipped” bill of lading, provided that if the shipper shall
have previously taken up any document of title to such goods, he shall
surrender the same as against the issue of the “shipped” bill of lading,
but at the option of the carrier such document of title may be noted at
the port of shipment by the carrier, master, or agent with the name or
names of the ship or ships upon which the goods have been shipped
and the date or dates of shipment, and when so noted the same shall
for the purpose of this Article be deemed to sonstitute a “shipped” bill
of lading.
8. Any clause, covenant or agreement in a contract of carriage relieving
the carrier or the ship from liability for loss or damage to or in connection
with goods arising from negligence, fault or failure in the duties and
obligations provided in this Article or lessening such liability otherwise
than as provided in these Rules, shall be null and void and of no effect.
A benefit of insurance or similar clause shall be deemed to be a clause
relieving the carrier from liability.
Article 4
Rights and Immunities
1. Neither the carrier nor the ship shall be liable for loss or damage arising
or resulting from unseaworthiness unless caused by want of due diligence
on the part of the carrier to make the ship seaworthy, and to secure that
the ship is properly manned, equipped and supplied, and to make the
holds, refrigerating and cool chambers and all other parts of the ship
in which goods are carried fit and safe for their reception, carriage and
preservation in accordance with the provisions of paragraph 1 of
Article 111.
Whenever loss or damage has resulted from unseaworthiness, the burden
of proving the exercise of due diligence shall be on the carrier or other
person claiming exemption under this article.
2. Neither the carrier nor the ship shall be responsible for loss or damage
arising or resulting from
(a) act, neglect, or default of the master, mariner, pilot or the servants
of the carrier in the navigation or in the management of the ship;
(b) fire, unless caused by the actual fault or privity of the carrier;
(c) perils, dangers and accidents of the sea or other navigable waters;
(d) act of God;
(e) act of war;
(f) act of public enemies;
(g) arrest or restraint of princes, rulers or people, or seizure under legal
process;
(h) quarantine restrictions;
(i) act or omission of the shipper or owner of the goods, his agent or
representative;
(j) strikes or lock-outs or stoppage or restraint of labour from whatever
cause, whether partial or general;
(k) riots and civil commotions;
(l) saving or attempting to save life or property at sea;
(m) wastage in bulk or weight or any other loss or damage arising from
inherent defect, quality or vice of the goods;
(n) insufficiency of packing;
(o) insufficiency or inadequacy of marks;
(p) latent defects not discoverable by due diligence;
(q) any other cause arising without the actual fault and privity of the
carrier, or without the fault or neglect of the agents or servants of
the carrier, but the burden of proof shall be on the person claiming
the benefit of this exception to show that neither the actual fault
or privity of the carrier nor the fault or neglect of the agents or
servants of the carrier contributed to the loss or damage.
3. The shipper shall not be responsible for loss or damage sustained by
the carrier or the ship arising or resulting from any cause without the
act, fault or neglect of the shipper, his agents or his servants.
4. 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 or of the contract of carriage, and the carrier
shall nor be liable for any loss or damage resulting therefrom.
6 The Carriage of Goods by Sea Act – 6 of 2008 The Carriage of Goods by Sea Act – 6 of 2008 7
Subject to paragraph 6bis the carrier and the ship shall in any event be
discharged from all liability whatsoever in respect of the goods, unless
suit is brought within one year of their delivery or of the date when
they should have been delivered. This period may, however, be extended
if the parties so agree after the cause of action has arisen.
In the case of any actual or apprehended loss or damage the carrier and
the receiver shall give all reasonable facilities to each other for inspecting
and tallying the goods.
6. bis An action for indemnity against a third person may be brought even
after the expiration of the year provided for in the preceding paragraph
if brought within the time allowed by the law of the Court seized of
the case. However, the time allowed shall be not less than three months,
commencing from the day when the person bringing such action for
indemnity has settled the claim or has been served with process in the
action against himself.
7. After the goods are loaded the bill of lading to be issued by the carrier,
master or agent of the carrier, to the shipper shall, if the shipper so
demands, be a “shipped” bill of lading, provided that if the shipper shall
have previously taken up any document of title to such goods, he shall
surrender the same as against the issue of the “shipped” bill of lading,
but at the option of the carrier such document of title may be noted at
the port of shipment by the carrier, master, or agent with the name or
names of the ship or ships upon which the goods have been shipped
and the date or dates of shipment, and when so noted the same shall
for the purpose of this Article be deemed to sonstitute a “shipped” bill
of lading.
8. Any clause, covenant or agreement in a contract of carriage relieving
the carrier or the ship from liability for loss or damage to or in connection
with goods arising from negligence, fault or failure in the duties and
obligations provided in this Article or lessening such liability otherwise
than as provided in these Rules, shall be null and void and of no effect.
A benefit of insurance or similar clause shall be deemed to be a clause
relieving the carrier from liability.
Article 4
Rights and Immunities
1. Neither the carrier nor the ship shall be liable for loss or damage arising
or resulting from unseaworthiness unless caused by want of due diligence
on the part of the carrier to make the ship seaworthy, and to secure that
the ship is properly manned, equipped and supplied, and to make the
holds, refrigerating and cool chambers and all other parts of the ship
in which goods are carried fit and safe for their reception, carriage and
preservation in accordance with the provisions of paragraph 1 of
Article 111.
Whenever loss or damage has resulted from unseaworthiness, the burden
of proving the exercise of due diligence shall be on the carrier or other
person claiming exemption under this article.
2. Neither the carrier nor the ship shall be responsible for loss or damage
arising or resulting from
(a) act, neglect, or default of the master, mariner, pilot or the servants
of the carrier in the navigation or in the management of the ship;
(b) fire, unless caused by the actual fault or privity of the carrier;
(c) perils, dangers and accidents of the sea or other navigable waters;
(d) act of God;
(e) act of war;
(f) act of public enemies;
(g) arrest or restraint of princes, rulers or people, or seizure under legal
process;
(h) quarantine restrictions;
(i) act or omission of the shipper or owner of the goods, his agent or
representative;
(j) strikes or lock-outs or stoppage or restraint of labour from whatever
cause, whether partial or general;
(k) riots and civil commotions;
(l) saving or attempting to save life or property at sea;
(m) wastage in bulk or weight or any other loss or damage arising from
inherent defect, quality or vice of the goods;
(n) insufficiency of packing;
(o) insufficiency or inadequacy of marks;
(p) latent defects not discoverable by due diligence;
(q) any other cause arising without the actual fault and privity of the
carrier, or without the fault or neglect of the agents or servants of
the carrier, but the burden of proof shall be on the person claiming
the benefit of this exception to show that neither the actual fault
or privity of the carrier nor the fault or neglect of the agents or
servants of the carrier contributed to the loss or damage.
3. The shipper shall not be responsible for loss or damage sustained by
the carrier or the ship arising or resulting from any cause without the
act, fault or neglect of the shipper, his agents or his servants.
4. 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 or of the contract of carriage, and the carrier
shall nor be liable for any loss or damage resulting therefrom.
6 The Carriage of Goods by Sea Act – 6 of 2008 The Carriage of Goods by Sea Act – 6 of 2008 7
2. Subject to the provisions of Article IV, the carrier shall properly and
carefully load, handly, stow, carry, keep, care for and discharge the goods
carried.
3. After receiving the goods into his charge, the carrier, or the master or
agent of the carrier, shall, on demand of the shipper, issue to the shipper
a bill of lading showing among other things.
(a) the leading marks necessary for identification of the goods as the
same are furnished in writing by the shipper before the loading of
such goods starts, provided such marks are stamped or otherwise
shown clearly upon the goods if uncovered, or on the cases or
coverings in which such goods are contained, in such a manner as
should ordinarily remain legible until the end of the voyage;
(b) either the number of packages or pieces, or the quantity, or weight,
as the case may be, as furnished in writing by the shipper;
(c) the apparent order and condition of the goods:
Provided that no carrier, master or agent of the carrier shall be bound
to state or show in the bill of lading any marks, number, quantity,
or weight which he has reasonable ground for suspecting not
accurately to represent the goods actually received or which he has
had no reasonable means of checking.
4. Such a bill of lading shall be prima facie evidence of the receipt by
the carrier of the goods as therein described in accordance with paragraphs
3(a), (b) and (c).
However, proof to the contrary shall not be admissible when the bill
of lading has been transferred to a third party acting in good faith.
5. The shipper shall be deemed to have guaranteed to the carrier the accuracy
at the time of shipment of the marks, number, quantity and weight, as
furnished by him, and the shipper shall indemnify the carrier against all
loss, damages and expenses arising or resulting from inaccuracies in such
particulars. The right of the carrier to such indemnity shall in no way
limit his responsibility and liability under the contract of carriage to any
person other than the shipper.
6. Unless notice of loss or damage and the general nature of such loss or
damage be given in writing to the carrier or his agent at the port of
discharge before or at the time of the removal of the goods into the
custody of the person entitled to delivery thereof under the contract of
carriage, or, if the loss or damage be not apparent, within three days,
such removal shall be prima facie evidence of the delivery by the carrier
of the goods as described in the bill of lading.
If the loss or damage is not apparent, the notice must be given within
three days of the delivery of the goods.
The notice in writing need not be given if the state of the goods has
at the time of their receipt been the subject of joint survey or inspection.
5. (a) Unless the nature and value of such goods have been declared by
the the shipper before shipment and inserted in the bill of lading,
neither the carrier nor the ship shall in any event be or become liable
for any loss or damage to or in connection with the goods in an
amount exceeding 666.67 units of account per package or unit or
2 units of account per kilogram of gross weight of the goods lost
or damaged, whichever is the higher.
(b) The total amount recoverable shall be calculated by reference to the
value of such goods at the place and time at which the goods are
discharged from the ship in accordance with the contract or should
have been so discharged.
The value of the goods shall be fixed according to the commodity
exchange price, or, if there be no such price, according to the current
market price, or, if there be no commodity exchange price or current
market price, by reference to the normal value of goods of the same
kind and quality.
(c) Where a container, pallet or similar article of transport is used to
consolidate goods, the number of package, or units enumerated in
the bill of lading as packed in such article of transport shall be
deemed the number of packages or units for the purpose of this
paragraph as far as these packages or units are concerned. Except
as aforesaid such article of transport shall be considered the package
or unit.
(d) The unit of account mentioned in this Article is the Special Drawing
Right as defined by the International Monetary Fund. The amounts
mentioned in sub-paragraph (a) of this paragraph shall be converted
into national currency on the basis of the value of that currency
on the date to be determined by the law of the Court seized of the
case. The value of the national currency, in terms of the Special
Drawing Right, of a State which is a member of the International
Monetary Fund, shall be calculated in accordance with the method
of valuation applied by the International Monetary Fund in effect
at the date in question for its operations and transactions. The value
of the national currency, in terms of the Special Drawing Right, of
a State which is not a membe of the International Monetary Fund,
shall be calculated in a manner determined by that State.
Nevertheless, a State which is not a member of the International
Monetary Fund and whose law does not permit the application of
the provisions of the preceding sentences may, at the time of
ratification of the Protocol of 1979 or accession thereto or at any
time thereafter, declare that the limits of liability provided for in
this Convention to be applied in its territory shall be fixed as follows.
(i) in respect of the amount of 666.67 units of account mentioned
in sub-paragraph (a) of paragraph 5 of this Article, 10,000
monetary units;
The Carriage of Goods by Sea Act – 6 of 2008 58 The Carriage of Goods by Sea Act – 6 of 2008
(ii) in respect of the amount of 2 units of account mentioned in
sub-paragraph (a) of paragraph 5 of this Article, 30 monetary
units.
The monetary unit referred to in the preceding sentence corresponds
to 65.5 milligrams of gold of millesimal fineness 900. The
conversion of the amounts specified in that sentence into the national
currency shall be made according to the law of the State concerned.
The calculation and the conversion mentioned in the preceding
sentences shall be made in such a manner as to express in the national
currency of that State as far as possible the same real value for the
amounts in sub-paragraph (a) of aragraph 5 of this Article as is
expressed there in units of account.
States shall communicate to the depository the manner of calculation
or the result of the conversion as the case may be, when depositing
an instrument of ratification of the Protocol of 1979 or of accession
thereto and whenever there is a change in either.
(e) Neither the carrier nor the ship shall be entitled to the benefit of
the limitation of liability provided for in this paragraph if it is proved
that the damage resulted from an act or omission of the carrier done
with intent to cause damage, or recklessly and with knowledge that
damage would probably result.
(f) The declaration mentioned in sub-paragraph (a) of this paragraph,
if embodied in the bill of lading, shall be prima facie evidence, but
shall not be binding or conclusive on the carrier.
(g) By agreement between the carrier, master or agent of the carrier
and the shipper other maximum amounts than those mentioned in
sub-paragraph (a) of this paragraph may be fixed, provided that no
maximum amount so fixed shall be less than the appropriate
maximum mentioned in that sub-paragraph.
(h) Neither the carrier nor the ship shall be responsible in any event
for loss or damage to, or in connection with, goods if the nature
or value thereof has been knowingly mis-stated by the shipper in
the bill of lading.
6. Goods of an inflammable, explosive or dangerous nature to the shipment
whereof the carrier, master or agent of the carrier has not consented,
with knowledge of their nature and character, may at any time before
discharge be landed at any place or destroyed or rendered innocuous by
the carrier without compensation, and the shipper of such goods shall
be liable for all damages and expenses directly or indirectly arising out
of or resulting from such shipment.
If any such goods shipped with such knowledge and consent shall become
a danger to the ship or cargo, they may in like manner be landed at
any place or destroyed or rendered innocuous by the carrier without
liability on the part of the carrier except to general average, if any.
The Carriage of Goods by Sea Act – 6 of 2008 9
Article 4bis
Application of Defences and Limits of Liability
1. The defences and limits of liability provided for in these Rules shall apply
in any action against the carrier in respect of loss or damage to goods
covered by a contract of carriage whether the action be founded in contract
or in tort.
2. If such an action is brought against a servant or agent of the carrier (such
servant or agent not being an independent contractor), such servant or
agent shall be entitled to avail himself of the defences and limits of
liability which the carrier is entitled to invoke under these Rules.
3. The aggregate of the amounts recoverable from the carrier, and such
servants and agents, shall in no case exceed the limit provided for in
these Rules.
4. Nevertheless, a servant or agent of the carrier shall not be entitled to
avail himself of the provisions of this Article, if it is proved that the
damage resulted from an act or omission of the servant or agent done
with intent to cause damage or recklessly and with knowledge that damage
would probably result.
Article 5
Surrender of Rights and Immunities, and Increase of Responsibilities and
Liabilities
A carrier shall be at liberty to surrender in whole or in part all or any of
his rights and immunities or to increase any of his responsibilities and liabilities
under the Rules contained in any of these Articles, provided such surrender
or increase shall be embodied in the bill of lading issued to the shipper.
The provisions of these Rules shall not be applicable to charter-parties, but
if bills of lading are issued in the case of a ship under a charter-party they
shall comply with the terms of these Rules. Nothing in these Rules shall
be held to prevent the insertion in a bill of lading of any lawful provision
regarding general average.
Article 6
Special Conditions
Notwithstanding the provisions of the preceding Articles, a carrier, master or
agent of the carrier and a shipper shall in regard to any particular goods be
at liberty to enter into any agreement in any terms as to the responsibility
and liability of the carrier for such goods, and as to the rights and immunities
of the carrier in respect of such goods, or his obligation as to seaworthiness,
so far as this stipulation is not contrary to public policy, or the care or diligence
of his servants or agents in regard to the loading, handling, stowage, carriage,
custody, care and discharge of the goods carried by water, provided that in
this case no bill of lading has been or shall be issued and that the terms agreed
shall be embodied in a receipt which shall be a non-negotiable document and
shall be marked as such. Any agreement so entered into shall have full legal
effect.
Provided that this Article shall not apply to ordinary commercial shipments
made in the ordinary course of trade, but only to other shipments where the
character or condition of the property to be carried or the circumstances, terms
and conditions under which the carriage is to be performed are such as
reasonably to justify a special agreement.
Article 7
Limitations on the Application of the Rules
Nothing herein contained shall prevent a carrier or a shipper from entering
into any agreement, stipulation, condition, reservation or exemption as to the
responsibility and liability of the carrier or the ship for the loss or damage
to, or in connection with the custody and care and handling of goods prior
to the loading on and subsequent to the discharge from the ship on which
the goods are carried by sea.
Article 8
Limitation of Liability
The provisions of these Rules shall not affect the rights and obligations of
the carrier under any statute for the time being in force relating to the limitation
of the liability of onwers of vessels.
Article 9
Liability for Nuclear Damage
These Rules shall not affect the provisions of any International Convention
or national law governing liability for nuclear damage.
Article 10
Application
The provisions of these Rules shall apply to every bill of lading to the carriage
of goods between ports in two different States if:
(a) the bill of lading is issued in a Contracting State, or
(b) the carriage is from a port in a Contracting State, or
(c) the contract contained in or evidenced by the bill of lading provides
that these Rules or legislation of any State giving effect to them
are to govern the contract, whatever may be the nationality of the
ship, the carrier, the shipper, the consignee, or any other interested
person.
10 The Carriage of Goods by Sea Act – 6 of 2008 The Carriage of Goods by Sea Act – 6 of 2008 11
Article 4bis
Application of Defences and Limits of Liability
1. The defences and limits of liability provided for in these Rules shall apply
in any action against the carrier in respect of loss or damage to goods
covered by a contract of carriage whether the action be founded in contract
or in tort.
2. If such an action is brought against a servant or agent of the carrier (such
servant or agent not being an independent contractor), such servant or
agent shall be entitled to avail himself of the defences and limits of
liability which the carrier is entitled to invoke under these Rules.
3. The aggregate of the amounts recoverable from the carrier, and such
servants and agents, shall in no case exceed the limit provided for in
these Rules.
4. Nevertheless, a servant or agent of the carrier shall not be entitled to
avail himself of the provisions of this Article, if it is proved that the
damage resulted from an act or omission of the servant or agent done
with intent to cause damage or recklessly and with knowledge that damage
would probably result.
Article 5
Surrender of Rights and Immunities, and Increase of Responsibilities and
Liabilities
A carrier shall be at liberty to surrender in whole or in part all or any of
his rights and immunities or to increase any of his responsibilities and liabilities
under the Rules contained in any of these Articles, provided such surrender
or increase shall be embodied in the bill of lading issued to the shipper.
The provisions of these Rules shall not be applicable to charter-parties, but
if bills of lading are issued in the case of a ship under a charter-party they
shall comply with the terms of these Rules. Nothing in these Rules shall
be held to prevent the insertion in a bill of lading of any lawful provision
regarding general average.
Article 6
Special Conditions
Notwithstanding the provisions of the preceding Articles, a carrier, master or
agent of the carrier and a shipper shall in regard to any particular goods be
at liberty to enter into any agreement in any terms as to the responsibility
and liability of the carrier for such goods, and as to the rights and immunities
of the carrier in respect of such goods, or his obligation as to seaworthiness,
so far as this stipulation is not contrary to public policy, or the care or diligence
of his servants or agents in regard to the loading, handling, stowage, carriage,
custody, care and discharge of the goods carried by water, provided that in
this case no bill of lading has been or shall be issued and that the terms agreed
shall be embodied in a receipt which shall be a non-negotiable document and
shall be marked as such. Any agreement so entered into shall have full legal
effect.
Provided that this Article shall not apply to ordinary commercial shipments
made in the ordinary course of trade, but only to other shipments where the
character or condition of the property to be carried or the circumstances, terms
and conditions under which the carriage is to be performed are such as
reasonably to justify a special agreement.
Article 7
Limitations on the Application of the Rules
Nothing herein contained shall prevent a carrier or a shipper from entering
into any agreement, stipulation, condition, reservation or exemption as to the
responsibility and liability of the carrier or the ship for the loss or damage
to, or in connection with the custody and care and handling of goods prior
to the loading on and subsequent to the discharge from the ship on which
the goods are carried by sea.
Article 8
Limitation of Liability
The provisions of these Rules shall not affect the rights and obligations of
the carrier under any statute for the time being in force relating to the limitation
of the liability of onwers of vessels.
Article 9
Liability for Nuclear Damage
These Rules shall not affect the provisions of any International Convention
or national law governing liability for nuclear damage.
Article 10
Application
The provisions of these Rules shall apply to every bill of lading to the carriage
of goods between ports in two different States if:
(a) the bill of lading is issued in a Contracting State, or
(b) the carriage is from a port in a Contracting State, or
(c) the contract contained in or evidenced by the bill of lading provides
that these Rules or legislation of any State giving effect to them
are to govern the contract, whatever may be the nationality of the
ship, the carrier, the shipper, the consignee, or any other interested
person.
10 The Carriage of Goods by Sea Act – 6 of 2008 The Carriage of Goods by Sea Act – 6 of 2008 11
