SJ56

I. PROVISION COGSA

TRANSPO LAW

CARRIAGE OF GOODS BY SEA ACT Commonwealth Act. No. 65 accepting Public Act No. 521, 74th US Congress
ACCEPTING

1

Sec. 1. That the provisions of Public Act No. 521 of the 74th Congress of the United States, approved on April 16, 1936, be accepted, as it is hereby accepted to be made applicable to all contracts for the carriage of goods by sea to and from Philippine ports in foreign trade: Provided, that nothing in this Act shall be construed as repealing any existing provision of the Code of Commerce which is not in force, or as limiting its application. Sec. 2. This Act shall take effect upon its approval. (Approved October 22, 1936). Notes: In relation to Civil Code   Art. 1753 - governed by law of place of destination, if shipped to a foreign country, governed by law of foreign country Art. 1766 - goods from foreign country shipped to the Philippines, governed by the Civil Code

Applicability of COGSA     applicable to all transportation of goods by sea in foreign trade to and from Philippine ports does not apply to purely domestic transport the law does not apply to air, coastwise, or overland transportation does not apply to the claims on insurance

Laws applicable to a contract for the carriage of goods by sea 1. Distinguish common carrier (Civil Code) from private carrier 2. Where is the vessel going? a. Common carrier coming to the Phils. = what law applies? 1st: Civil Code 2nd: COGSA (it's more specific than Code of Commerce) - in foreign trade 3rd: Code of Commerce b. Private carrier coming to the Phils. in foreign trade 1st: COGSA (because it's more specific) 2nd: Code of Commerce 3rd: Civil Code (provisions not on common carriers e.g. torts, contracts) c. From the Phils. to a foreign country: -apply laws of such foreign country (Art.1753)  With respect to vessels destined for foreign ports, the COGSA doesn't apply unless parties make it applicable.

Q: In what situations does COGSA primarily apply? A: Where the parties expressly stipulate that COGSA shall govern their respective rights and obligations. Q: Can the COGSA apply in domestic shipping? A: Generally, NO. EXCEPTION: when parties agree to make it apply. Q: What application does COGSA have in carriage of passengers? A: None. Applies only to carriage of goods. II. DEFINITION

Sec. 1. When used in this Act-

(a) (b)

The term "carrier" includes the owner or the charterer who enters into a contract of carriage with a shipper. The term "contract of carriage" applies only to contracts of carriage covered by a bill of lading or any similar document of title, insofar as such document relates to the carriage of goods by sea, 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. The term "goods" includes goods, wares, merchandise, and articles of ever kind whatsoever, except live animals and cargo which by the contract of carriage is stated as being carried on deck and is so carried. The term "ship" means any vessel used for the carriage of goods by sea.

(c) (d)

custody.e. 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. and discharge of such goods shall be subject to the responsibilities and liabilities and entitled to the rights and immunities RESPONSIBILITIES AND LIABILITIES Sec. in case of misdelivery (delivery to wrong person) or conversion of the goods.every contract of carriage of goods by sea. 1 year period is a special prescriptive period. the carrier in relation to the loading. NCC? A: No. lost goods): from the date the goods should have been delivered  Parties in the bill of laiding cannot stipulate to shorten the one-year period  Parties may agree in writing to suspend the running of the one-year period during the tendency of the extra-judicial demand or negotiation for amicable settlement. is not given as provided for in this section. 3 (6) gives the impression that it is the shipper alone who can invoke the same. The agreement must be expressly made in writing  Cases of misdelivery or conversion not covered. to provide carrier an opportunity to look for the lost goods to discover who was at fault in case of transshipment. that. the notice must be given within three days of the delivery. handling. care. consignee or legal holder of B/L may invoke the prescriptive period and have the right to file suit within one year after delivery of the goods or failure to deliver. In any event the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered: Provided. or disappeared in such a way that their existence is unknown or they cannot be recovered  Hence. carriage.SJ56 (e) TRANSPO LAW The term "carriage of goods" covers the period from the time when the goods are loaded to the time when they are discharged from the ship 2 III.  (1) (2) The carrier and the agent shall be discharged form liability in respect of loss or damage unless suit is brought within 1 year from: in case of damaged goods: from the time delivery of the goods was made in case of non-delivery (i. that fact shall not affect or prejudice the right of the shipper to bring suit within one year after the deliver of the goods or the date when the goods should have been delivered. If there is a misdelivery or conversion. Sec. RISKS • III. (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 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. gone out of commerce. if a notice of loss or damage. Quimbo does not agree with this SC ruling. uniform worldwide Rationale behind the 3-day notice and relatively short prescriptive period: 1. Said notice of loss or damage may be endorsed upon the receipt for the goods given by the person taking delivery thereof. the rules on prescription found in the Civil Code shall apply (10 years for contracts. when and where damage occurred  Shipper. such removal shall be prima facie evidence of the delivery by the carrier of the goods as described in the bill of lading. consignee or legal holder of bill may invoke prescriptive period although the proviso in Sec.  1 year-prescriptive period in Sec. 4 years for tortious obligations)  Shipper.  Loss contemplates only where no delivery at all was made by the carrier of the goods because the same had perished.  Mere proposal for arbitration or fact that there have been initial negotiations does not suspend the running of the period for prescription NOTE: Prof.. 3. If the loss or damage is not apparent. 1155. stowage. either apparent or concealed. 2. 3 (6) applies only where there is loss or damage. Q: Is the prescriptive period under the COGSA interrupted from the time of the making of extra-judicial demand or filing of judicial action as provided in Art. there is a case of loss from the point of view of the consignee or shipper. to determine. . 3. . 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 Notes: Prescriptive period under Section 3(6). 2.

RIGHTS AND IMMUNITIES Sec. (c) Perils. or people. e. 4. 26    in case of damage of baggage . (f) Act of public enemies. IV. the burden of proving the exercise of due diligence shall be on the carrier or other person claiming exemption under this section. dangers. (p) Latent defects not discoverable by due diligence. rulers. (d) Act of God. pilot.within 3 days from receipt in case of damage to goods . 3(8) is void. (i) Act or omission of the shipper or owner of the goods. or neglect of the shipper. such a provision is contrary to a provision of the COGSA since Sec.g. unless caused by the actual fault or privity of the carrier. and preservation. (g) Arrest or restraint of princes. and to make the holds.within 7 days in case of delay: within 14 days from receipt  failure to comply with the 3-days notice requirement under COGSA does not affect the right of the shipper to bring action provided he brings the same within 1 year  To be distinguished from the notice requirement in the WARSAW convention and Code of Commerce. where the notice requirement is a condition precedent for the right of action against the shipowner to accrue.within 24 hours after receipt WARSAW: Art. 3 provides that even if a notice of loss or damage is not given as required. Whenever loss or damage has resulted from unseaworthiness. or seizure under legal process. (l) Saving or attempting to save life or property at sea. (o) Insufficiency or inadequacy of marks. quality.SJ56 TRANSPO LAW 3  But prescriptive period does not apply to the action by an insurer as subrogee of the consignee. (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. Notice requirements COGSA   If loss or damage is apparent . (b) Fire. equipped. that fact shall not prejudice the right of the shipper to bring suit within 1 year after delivery of the goods. whether partial or general: Provided. (1) Neither the carrier not 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. neglect.protest as soon as receipt of goods If not apparent -> within 3 days of delivery Code of Commerce: Art.  Stipulation in bill limiting carrier's liability contrary to sec. and (q) Any other cause arising without the actual fault and privity of the carrier and without the fault or neglect of the agents or servants of the carrier. (n) Insufficiency of packing. (m) Wastage in bulk or weight or any other loss or damage arising from inherent defect. (e) Act of war. refrigerating and cooling chambers. or default of the master. (2) Neither the carrier not the ship shall be responsible for loss or damage arising or resulting from(a) Act. his agents . his agent or representative. mariner. 366   apparent . and all other parts of the ship in which goods are carried fit and safe for their reception. provision in the bill excepting the owner form liability for loss or damage of cargo unless written notice is thereof was given to the carrier within 30 days. or the servants of the carrier in the navigation or in the management of the ship. 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 not the fault or neglect of the agents or servants of the carrier contributed to the loss or damage. in accordance with the provisions of paragraph (1) of Section (3).protest at time of receipt non-apparent .. (j) Strikes or lockouts or stoppage or restraint of labor from whatever cause. that nothing herein contained shall be construed to relive a carrier from responsibility for the carrier's own acts: (k) Riots and civil commotions. and accidents of the sea or other navigable water. (h) Quarantine restrictions. and supplied. carriage. or vice of the goods.

and carrier shall not be liable for any loss or damage resulting therefrom: Provided. If value is stated. 5. By providing that $500 is the maximum liability. 4(5). THE SAME IS DEEMED READ INTO THEIR CONTRACT  Package . they may in like manner be landed at any place. This declaration. that if the deviation is for the purpose of loading or unloading cargo or passengers it shall. however. Nothing contained in this Act shall prevent a carrier or a shipper from entering into any agreement. Sec. or destroyed or rendered innocuous by the carrier without liability on the part of the carrier except to general average if any. provided such surrender or increase shall be embodied in the bill of lading issued to the shipper. and a shipper shall. 8. that this section 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. the maximum laibility of the carrier is $500. but if bills of lading are issued in the case of a ship under a charter party. the carrier. Any agreement so entered into shall have full legal effect: Provided. 1916. handling. In no event shall the carrier be liable for more than the amount of damage actually sustained. 4 SURRENDER OF RIGHTS AND IMMUNITIES AND INCREASE OF RESPONSIBILITIES AND LIABILITIES Sec. (so far as the stipulation regarding seaworthiness is not contrary to public policy). The provisions of this Act shall not be applicable to charter parties. inclusive. of the Revised Statutes of the United States. or under the provisions of any other enactment for the time being in force relating to the limitation of the liability of the owners of seagoing vessels. 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 this Act. By agreement between the carrier. or dangerous nature to the shipment whereof. stowage. or any reasonable deviation shall not be deemed to be an infringement or breach of this Act or of the contract of carriage. 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. and the shipper another maximum amount than that mentioned in this paragraph may be fixed: Provided. master or agent of the carrier. or in case of goods not shipped in packages. but shall not be conclusive on the carrier. Notes: Liability 1.00 2.means individual packaging of the goods . apply rule of qualified liability  The plaintiff cannot dispute said limitation on the ground that it was not freely and fairly agreed upon or that it is against public policy. condition. 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. that such maximum shall not be less than the figure above named. Notwithstanding the provisions of the preceding section. care and discharge of the goods carried by sea. master or agent of the carrier. reservation. Nothing in this Act shall be held to prevent the insertion in a bill of lading of any lawful provisions regarding general average. 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. custody. (5) 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 transportation of goods in an amount exceeding $500 per package of lawful money of the United States. or the equivalent of that sum in other currency. . Moreover. since the LAW ITSELF PROVIDES FOR SAID LIMITATION. 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. prima facie. be regarded as unreasonable. If any such goods shipped with such knowledge and consent shall become a danger to the ship or cargo.SJ56 TRANSPO LAW (4) An deviation in saving or attempting to save life or property at sea. terms and conditions under which the carriage is to be performed are such as reasonable to justify a special agreement. 1749 of the NCC expressly allows th limitation of the carrier's liability. if embodied in the bill of lading.does not cover 1 container van  Parties may agree to amount of liability less than $500 under Sec. the law does not disallow an agreement for liability at a lesser amount. has not consented with knowledge of their nature and character. stipulation. Neither the carrier nor the ship shall be responsible in any event for loss or damage to or in connection with the transportation of the goods if the nature or value thereof has been knowingly and fraudulently mis-stated by the shipper in the bill of lading. VI. may at any time before discharge be landed at any place or destroyed or rendered innocuous by the carrier without compensation. per customary freight unit. (6) Goods of an inflammable. unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading. carriage. or of any amendments thereto. a carrier. Art. shall be prima facie evidence. Great American) V. or under the provisions of Section 4281 to 4292. 7. and as to the rights and immunities of the carrier in respect to such goods. explosive. or the care or diligence of his servants or agents in regard to the loading. provided. master or agent of the carrier. 6. SPECIAL CONDITIONS Sec. Sec. they shall comply with the terms of this Act. or his obligation as to seaworthiness. The provisions of this Act shall not affect the rights and obligations of the carrier under the provisions of the Shipping Act. if no value is stated. (Eastern v.

1916. COGSA. Sec. as amended. April 16. Sec. Transshipment was not a separate transaction from that originally entered into by the parties but was part of the carrier's contractual obligation. nor destruction of goods caused by the carrier's breach of contract. effective during any period when Title I hereof. (Not applicable to the Philippines. made before the date on which this Act is approved nor to any bill of lading or similar document of title issued. (c) in any other way prohibited by the Shipping Act. Sec. territories." Approved. This Act shall take effect ninety days after the date of its approval. COGSA is applicable despite the fact that from Manila to Cebu. (Not applicable to the Philippines. the President of the United States may. and any provisions thereof which may have been thereafter made for carriage of goods by sea. nor disappearance. subject to the provisions of this Act.) Sec. Sec. 14. Notes: American Insurance vs Cia Maritima  Contract of carriage from NY with final destination in Cebu.. which date shall be not less than ten days from the issue of the proclamation. 9. shall be subjected hereto as fully as if subject hereto by the express provisions of this Act: Provided. that the Philippine Legislature may by law exclude its application to transportation to or from ports of the Philippine Islands. containing an express statement that it shall be subject to the provisions of this Act. of this Act. When under the custom of any trade the weight of any bulk cargo inserted in the bill of lading is a weight ascertained or accepted by a third party other than the carrier or the shipper and the fact that the weight as ascertained or accepted is stated in the bill of lading. Notes  An action agains an arrrastre operator for damage to goods does not fall under the COGSA since the arrastre is neither a carrier nor the charterer  Action against the arrastre operator does not require the application of any maritime law. and the accuracy thereof at the time of shipment shall not be deemed to have been guaranteed by the shipper. however. Whatever reduction there may have been in the value of the goods is not due to the deterioration or disappearance because they have . Hence. 12. or (b) when issuing such bills of lading either in the surrender of any of the carrier's rights and immunities or in the increase of any of the carrier's responsibilities and liabilities pursuant to Section 5. The matter is governed by the Civil Code and not COGSA There is neither deterioration. CA (1998)   The action has not yet prescribed. Any contract for the carriage of goods by sea. COGSA. or any part thereof. Nothing in this Act shall be held to apply to contracts for carriage of goods by sea between any port of the United States or its possession: Provided. 13. shall be subject to all provisions of law now or hereafter applicable to that part of Title I which may have thus been suspended. As used in this Act the term "United States" includes its districts. Upon the certification of the Secretary of Commerce that the foreign commerce of the United States in its competition with that of foreign nations is prejudiced by the provisions. either 5 (a) with respect to their right to demand and receive bills of lading subject to the provisions of this Act. that every bill of lading or similar document of title which is evidence of a contract for the carriage of goods by sea from ports of the United States in foreign trade. from time to time by proclamation. whether before or after such date of approval in pursuance of any such contract as aforesaid. or by the laws of any foreign country or countries relating to the carriage of goods by sea. 16. The term "foreign trade" means the transportation of goods between the ports of the United States and ports of foreign countries. of the Title I of this Act. the goods were transshipped on an interisland vessel. 1936. further. suspend any or all provisions of Title I of this Act for such periods of time or indefinitely as may be designated in the proclamation. an ordinary civil action for sum of money must be filed MITSUI v. and any time rescind such suspension of Title I hereof. then notwithstanding anything in this Act. 15.SJ56 TRANSPO LAW Sec. is suspended. Any proclamation of suspension or rescission of any such suspension shall take effect on the date named therein.) Sec. This Act may be cited as the "Carriage of Goods by Sea Act. Title I. Sec. Nothing contained in this Act shall be construed as permitting a common carrier by water to discriminate between competing shippers similarly placed in time and circumstances. or any of them. however. the bill of lading shall not be deemed to be prima facie evidence against the carrier of the receipt of goods of the weight so inserted in the bill of lading. 10. but nothing in this Act shall apply during a period not to exceed one year following its approval to any contract for the carriage of goods by sea. 11. This act shall apply to all contracts for carriage of goods by sea to or from ports of the United States in foreign trade. and possessions: Provided. The President may at any time rescind such suspension of Title I hereof. shall contain a statement that it shall have effect subject to the provisions of this Act. that any bill of lading or similar document of the title which is evidence of a contract for the carriage of goods by sea between such ports.

3(6) of COGSA. What is in issue is not the liability of petitioner for its handling of the goods as provided in Sec.SJ56 TRANSPO LAW been damaged n transit. 6 . but its liability under its contract of carriage with respondent as covered by laws of more general application.