Tambe Chalomine A, Esq.: GIFF - All Rights Reserved

TAMBE CHALOMINE A, ESQ.
GIFF - All rights reserved

Carriage of goods by sea
When a shipowner undertakes to carry goods by sea

from one place to another, the arrangement is known
as contract of affreightment.
In the broad sense, it means a contract to perform

transportation services by ship or to make a ship’s
transportation capacity available.

Types of contracts of carriage by sea
 Contracts evidenced by a bill of lading or other
similar document.
 Contracts contained in a charterparty

Contract of carriage governed by a bill of lading
Evidenced by bill of lading

Here the contract is for the carrier to carry goods
from the port of origin to the port of destination.
Cargo owner only requires shipping space as opposed

to the whole ship.

Contract of carriage governed by a bill of lading
 Governed by mandatory rules.
The shipper has less freedom to negotiate the terms

and conditions of the contract.
Rules are already standard and inflexible

Who are the parties to a contract of carriage?
Consignor - The consignor is the person who
enters into a contract with the carrier for the
carriage of goods by sea.
Carrier - A carrier can be defined as the person

who enters into a contract with the consignor for
the carriage of general cargo by sea.

Who is a consignee?
 The consignee is known as the receiver of the
goods.
The consignee may not originally be a party to

the contract of carriage.
Might step into the contract depending on the

wording of the bill of lading or through
assignment of the bill of lading.

Parties to the contract of carriage
Contract of carriage
Consignor Carrier
Sales Contract
Damaged, lost, delayed

goods
Receiver /
Consignee

Parties to the contract of carriage
When governed by charter parties, the parties are:
Charterer – Voyage or time charterer
Carrier – the person who through a contract

charters out a ship to a charterer

Types of charter parties
Voyage chartering - chartering where the
remuneration is to be calculated per voyage
Time chartering - chartering where

remuneration is to be calculated per unit of time
Bareboat or demise chartering – Leasing of a

vessel over a period of time where the charterer
performs responsibilities like the owner
Contract of carriage - charter party
The carrier provides the whole ship at the disposal of
the charterer
Freedom of contract as charterer can negotiate the

terms and conditions of the contract

CARGO DOCUMENTATION
Manifest – The manifest is a summary of all cargo
carried in the ship. It includes a list of the bills of lading,
presents, ship’s spares and other items of no commercial
value.
Mate’s receipt – The mate’s receipt is a document which

acknowledges that the carrier has received certain goods
into his custody.
Bill of lading – To be discussed in detail below.

Bills of lading - Definition
A bill of lading is a receipt for goods placed on board
or to be placed on board a vessel signed by the person
who contracts to carry them, or his agent, and is the
written evidence of the terms on which the goods are
to be carried for a specified freight.

The role of the bill of lading in shipping
It is a commercial document which states that goods
have been placed on board a particular vessel for
shipment.
Most shipping lines have their own bills of lading.
Must be signed by the carrier or his agent and handed
over to the merchant.

The role of the bill of lading in shipping
Usually produced in three sets.
One for the carrier, one for the consignor and one for
the consignee.
The consignee is able to collect the goods from the
carrier upon receiving the bill of lading.

Essential features of a bill of lading
Name of the merchant (consignor/ shipper)
Name of vessel
Port of shipment and discharge
Full details of freight (pre paid or post paid)
Full description of the goods
Bill of lading number
Name of consignee / or order

Types of Bills of lading
Received for shipment bill of lading
Shipped on board bill of lading
Through bill of lading
FIATA bill of lading
Tramp bill of lading
House bill of lading

 Received for shipment bill of lading
This represents the fact that certain goods have been
delivered to the carrier for shipment but has not been
loaded on board a particular vessel.
May be at the warehouse, transit shed etc.

 Shipped bill of lading
This bill of lading gives a conclusive evidence that
goods received by the carrier have been placed on
board a particular vessel.
The merchant can demand for this document from
the carrier once that goods have been loaded on
board the vessel.
The carrier becomes custodian of the goods and is
charged to deliver it to the right consignee at the port
of discharge
 Through bill of lading
Issued when cargo is collected at inland point and
the carrier has to arrange for the carriage by road or
rail before final journey be sea.
The entire carriage liability falls on the carrier.

 Transhipment bill of lading
This is issued when the carriage involves more than
one carrier.
Thus when one carrier does not provide a direct
service between two ports and sub contracts part of
the leg to another carrier.
The transhipment bill of lading covers the entire
voyage from origin to destination.

 FIATA bill of lading
The FIATA multimodal Transport Bill of lading (FBL)
is a document developed by FIATA for the use of
forwarding agents who are active as Multimodal
Transport Operators (MTO)
The FBL can also be used as ocean bill of lading.

 House Bill of Lading
The house bill of lading is issued by forwarders
when they provide consolidation services.
The house bill of lading is issued in respect of sea
freight
The forwarder issues the house bill of lading to
the individual consignors for their consignments.

Tramp bill of lading
Tramp bill of lading: -Bill of lading used under charter
parties.
Issued to serve as a receipt of cargo.
Enforceable under contract of carriage if transferred to a

third party. Thus someone else other than the charterer.

Issuing of Bills of lading
A carrier can either issue a clean bill of lading or a
claused bill of lading.
A clean bill of lading

Claused bill of lading

Claused bill of lading
This bill of lading contains clauses to the effect that
goods received on board the vessel were not in
apparent good order and condition.
Meaning part or all of the cargo were defective at the
time of receipt by the carrier.

Clean bill of lading
This is a bill of lading that bears no notations and as
such show that the goods have been received in the
appropriate condition and order.

Letter of indemnity
This is an undertaking by the consignor/shipper
which holds the shipowner harmless against the
issuance of a clean bill of lading when in reality the
goods shipped are actually damaged or defective.
Letters of indemnity are unenforceable in a court of
law and so carrier’s accept them at their own risk.

Letter of indemnity
If there is an agreement between agents of the
shipowner and the shippers, whereby the shipowners’
agents agreed to accept from the shippers the issue of
a Letter of Indemnity in exchange for the issue of a
clean bill of lading in respect of defective goods, this
is considered to be illegal and unenforceable in the
eye of the law.
It represent deceit and a mis- representation to the
receivers of the goods or banks which rely on such
transport documents for their transactions.

Letter of indemnity
Letters of indemnity or back letters can also be issued
for the release of cargo when for instance the bill of
lading has not been received by the merchant. These
have been a long standing practice and carriers do
that when the merchant is known to them. Again, it is
at the carrier’s discretion to accept these letters of
indemnity.

Bill of lading made to order
This usually occurs when payment for the goods
involves the use of documentary letters of credit.
In such instances the bill of lading serves as security
against payment for the goods.
The bill is therefore made to order making the holder
the rightful owner of the goods.
Banks are not interested in the goods but only want
to hold the bill of lading against payment. The
negotiability of the bill of lading is well enhanced
when the bill f lading is made to order.
Functions of the bill of lading
 Receipt
 Evidence the contract
 Document of title

 Receipt for goods shipped on board
Contains details of the goods shipped with regards to
their marks and numbers, quantity, condition
received for shipment.
To the receiver, the condition of the goods stated in
the document must be the same condition in which
it is received.

Because of containerisation of goods, carriers no
longer have a way of checking or counting goods to
establish their true nature, quantity and quality.
It is therefore common to find phrases like ‘said to
contain’ shipper’s load, stowed and count.
Such comments are a way of exonerating the carrier
from liability in relation to the issuance of the bill of
lading. (Refer to its functions)
In such instances, the merchant warrants to the carrier
the accuracy of such information as furnished by him.
 Evidence of the contract of shipment
Between the carrier and the merchant, the bill of
lading evidence the contract of carriage.
The bill of lading is not the contract itself as the
contract is always concluded before the issuance of
the bill of lading.
Could be through a booking note, mates receipt etc.

 Evidence of the contract of shipment
A bill of lading issued under a charter party to the
charterer is only a receipt and does not evidence the
contract.
The contract is evidenced by the charter party.
However, if the bill of lading is transferred to a third
party, the bill of lading evidenced the contract of
carriage between the carrier and the third party (who
is not the charterer)

The bill of lading becomes the key document to the
release of the goods from the carrier to the receiver.
The release must be done with the presentation of
the document.

A bill of lading can be a negotiable document or a
non negotiable document.
Negotiable means it can be transferred from one
party to another by simple endorsement.
Non negotiable means the named consignee must be
the receiver. E.g. . Straight bills of lading

Sea waybill
Evidence that the carrier has received the goods
Evidence of the contract of sea carriage
A promise to deliver the goods to their destination
Not a negotiable document
The difference between a sea waybill and a bill of lading is
that the bill of lading is a negotiable document and the sea
waybill is not.
Negotiability implies it is transferrable by delivery so that
the holder can sue the defaulting party.
Thus the bill of lading can change hands by endorsement
to another party.
Sea way bills are used for voyages which last for les than a
week.

Who is a carrier?
The term carrier includes owner or charterer who
enters into a contract of carriage with the merchant
i.e. the person liable to be sued by the holder of the
bill of lading.

Types of carriers
Contractual carrier
The contractual carrier is the person who enters into
a contract of carriage with the merchant.
However, it is not always that the contractual carrier
performs the carriage either wholly or partly himself.
Subcarriers may be used either for the whole carriage
or part of it.
The liabilities of the contractual carrier depends on
the wording on the bill of lading.

Types of carriers
This is usually stated under the substitution clause in
the bill of lading.
The carrier shall be entitled but not obliged to substitute

any vessel or other means of transport and to sub-
contract on any terms which are reasonable in the
circumstances the whole or any part of the carriage
and the duties undertaken by the carrier in relation to
the goods...
Types of carriers
Another way is the use of the liberty clause
“The carrier shall be at liberty to carry the goods to their
port of destination by the said or other vessels or
vessels whether belonging to the carrier or other
persons or companies, ... The carrier act as forwarding
agent only.”

Types of carriers
 Performing carrier
 The performing carrier is the one who
undertakes the actual carriage.
 The performing carrier enjoys all rights and
immunities as the contractual carrier.

Identity of the carrier
 The contractual carrier becomes the obvious front liner
when something goes wrong.
 All carriers used can be jointly and severely liable for
their actions and inactions
 The rules that govern the agreement between the
carriers is that of ordinary law of contract.
 It is not unusual to find the identity of the carrier clause
behind the bill of lading

Who is a merchant?
Merchant includes shipper, holder, consignee, receiver
of the goods or any person owning or entitled to the
possession of the goods.
The contract of carriage is that contract between the
carrier and the merchant
In the absence of any specific provision, it does not
regulate relations between non parties to the bill of
lading contract or other transport document

Duty of the merchant
Must deliver contractual goods
The shipper guarantees the accuracy of the details
of the cargo supplied by him.
At the correct place and time
Not to ship dangerous goods
At the port of destination, the consignee is also to
take delivery of the cargo
Must pay freight – could be prepaid or post paid
depending on the contract
Carrier’s duty
Accept the goods at the loading port
Put the goods on board a suitable ship within a
reasonable period of time
Has a duty to preserve the goods and delivery
them in good condition
Issue a transport document to the consignor
To care for the cargo – duty of care
Not to deviate
To deliver cargo to the right consignee

Implied obligation of contract of carriage
Seaworthiness
Includes: Physical condition of the vessel
Equipment
Competence of crew
Adequate stores
Documentation etc

Implied obligation of contract of
carriage
Seaworthiness
Again, the ship must be cargo worthy thus fit enough
to receive the intended specified cargo
The shipowner is thus obliged to clean the holds,
fumigate or make sure all is set to receive the
intended cargo.
This is to be done at the time the goods are to be put
on board.

carriage
Seaworthiness
The carrier is to be held liable for loss or damage to
the goods resulting from his failure to exercise due
diligence to make his ship seaworthy, to properly
man, equip and supply the ship or to make storage
areas fit and safe for the carriage of goods

carriage
Deviation
It is an obligation for any carrier not to deviate from
the contractually agreed route without justification
Deviation is defined as “an intentional and
unreasonable change in the geographical route of the
voyage as contracted.

carriage
 Reasonable dispatch
The next obligation under any contract of carriage is
for the carrier to perform the obligation with
reasonable dispatch.
The carriage must be done within a reasonable time.
Where no time is specified, the delivery must be
within the reasonable time allowed under such
carriage.

Deviation that is justifiable
To save human life
To communicate with a vessel in distress
To avoid danger to the ship or cargo –
Where the deviation is made necessary by default e.g.
to discharge dangerous goods etc

 Safe port
Whether a ship is under charter or not, it is
important that the ship sails to safe ports.
A safe port is one that “….in the relevant period of
time, the particular ship can reach it, use it and return
from it without, in the absence of some abnormal
occurrence, being exposed to danger which cannot be
avoided by goods navigation and seamanship.”(sellers
LJ in the Eastern City)

 Safe port
Thus from the moment of entry and departure, the
safety of the vessel is paramount.
Exclusion could be preventing vessels to go to certain
ports during war times, ice, etc.
It is implied also that the draft of the port of call
should be adequate to receive the vessel.

Implied obligation of the merchant under
contract of carriage
 Not to ship dangerous goods
It is the duty of the consignor to guarantee the safety
of the goods to be shipped.
The shipper can therefore not ship dangerous goods
without notifying the carrier
What is described as dangerous goods are usually
based on statue.

If the consignor ships dangerous goods without
notice to the carrier, the shipper bears all loss or
damage arising thereof.
The master or owner of the vessel has specific powers
to deal with goods suspected of having dangerous
characteristics provided it was improperly carried.

General Exclusions under contract
of carriage
1. Act of God
Any act that is due to natural occurrence without
human intervention that cannot be prevented by any
amount of reasonable care

Exclusions under contract of
carriage
2. Act of the Queen’s enemies
Covers acts committed by states or their subjects with
whom the sovereign is at war.
Covers acts of war and does not extend to robbers on
land or pirates.

carriage
3. Inherent vice
Where goods due to their own inherent qualities are
lost without the negligence of anyone.

carriage
4 Perils of the sea
Covers risk peculiar to the sea or to the navigation of
the ship which cannot be avoided by reasonable care.
Running aground due to fog.

carriage
7. Fault or fraud by the consignor
Damage caused by goods not properly packed for
instance. – insufficiency of packing, mis-description of
goods,
Seaworthy packaging can only be called that if it is
heavy and durable enough to carry the commodity in
question through out the entire transport in question.
Must be able to withstand the ordinary hazards likely
to be encountered during the transit.

carriage
5. Restrain of princes
Covers any active and forcible intervention by a
government or state authority in time of peace
which prevents or interferes with performance of
the carrier’s obligation.
Examples: Restrictions on trade, embargoes

carriage
6. Strikes and lockouts
 Strike is defined as a general concerted refusal by
workmen to work in consequence of an alleged
grievance
(Definition by Sankey J in 1915)

Perils, dangers and accidents of the sea or other
navigable waters
Generally speaking “perils of the sea” is said to cover
damages relating from dangers peculiar to maritime
transport such as impact of waves, violent storms, fog
etc.

“Latent defect not discoverable by due
diligence”
Brown & Co. v Nitrate producers Steamship Co.
(1937)
In this case, cargo was damaged due to leakage
through rivets, used in the construction of the
vessel, which where latent in nature. Despite
careful investigations such leaks could not be
discovered by the shipowner in the exercise of due
diligence and consequently were not liable for the
damage sustained to the cargo.

General exclusion
Any other cause or event which the carrier could not
have avoided by the exercise of due diligence

Some Clauses behind the bill
of lading and their
implications

Major Conventions under contract of carriage
The Hague Rules

The Hague Visby Rules
The Hamburg Rules
Rotterdam Rules

Major Conventions under contract of carriage
These are mandatory rules
The bill of lading usually contains a provision to the

effect that one of these conventions shall be
applicable.
Such a provision is normally referred to as a

*Paramount Clause*

Clause paramount
By this clause one of the carriage of goods
conventions is incorporated into the bill of lading.
Hague
Hague Visby
Hamburg
Rotterdam Rules

Clause paramount
It’s the incorporating clause which incorporates one
of the mandatory Rules into a bill of lading.
Has priority in relation to other provisions in the bill
of lading if there are conflicting terms.
These rules only apply to goods carried under a bill of
lading or similar document .

The major international conventions Rules
The rules are mandatory and on strict terms.
Therefore the shipowner cannot vary the contract
terms to the detriment of the merchant.
The Rules renders void any clause which purports to
lessen the carrier’s liability

The major international conventions
The Rules regulate the contract as between the
parties and mainly intends to protect holders of bills
of lading, by guaranteeing them certain rights of
which they cannot be deprived.
Certain rights and immunities are also given to the
carrier.

Application to charter parties
The Rules do not apply to charter parties
If however, a bill of lading is issued in respect of a
ship under a charter party, the Rules will apply to the
contract evidenced by the bill of lading.
This does not apply if the bill if lading is issued to the
charterer.

Application to charter parties
However, if the charterer endorses the bill of lading
and transfers it to a third party who is outside the
chartering agreement, The Rules govern the
relationship between the charterer/carrier and the
endorsee.
The application is from the moment of endorsement.

Hague Rules
The Hague Rules have been adopted in Ghana and
incorporated in the Bills of Lading Act of 1961 (Act 42)

The different mandatory rules
Scope of application
Definition of goods
Period of responsibility for the carrier
Responsibility of the shipper
Liability of the carrier / Exemptions

Scope of Application of the Rules
 Depends on which of them is applicable.
 For instance the Hague Visby Rules apply to all
contracts of carriage which are evidenced by a
bill of lading where:
1. The bill of lading is issued in a Contracting state
2. The carriage is from a port in a contracting state
3. The Rules apply to contracts of carriage
evidenced by a bill of lading if expressly
incorporated.
4. The rules also apply to contracts evidenced by
similar document of title where the states
legislation gives effect to it.

Scope of Application of the Rules
 The Hamburg Rules goes on further to include
the port of discharge
 The Rotterdam Rules further adds the place of
receipt, the port of loading, the place of delivery
and the port of discharge.

Period of responsibility
Hague/ Hague-Visby – Tackle to tackle thus from
ship’s rail at the loading port to the ship’s rail at the
discharging port.
Hamburg – Port to Port
Rotterdam – Door to door
The new Rules deviate from the Hague-Visby
approach by extending the period to from the time
the carrier takes charge of the goods to when they are
properly delivered to the merchant at the discharging
port.
Deck cargo
Cargo which is stated to be carried on deck and is so
carried under the Hague/Visby Rules are not
considered as goods.
The Hamburg and Rotterdam Rules have made
significant changes to this rule.
Carriage of deck cargo is permissible if:
1. Such carriage is in accordance with the custom of the
trade, or required by law or are carried by ships
designed specifically to carry such goods on deck.

Transhipment clause
This clause relates to circumstances where cargo
must be transhipped and allows the shipowner to
undertake a voyage in this way.
It enables the shipowner to be absolved from
responsibility once the goods have left his vessel, even
though he has under the terms of the bill of lading
undertaken to carry the goods until final destination.

The lien clause
 This clauses establishes that the shipowner is
entitled to a lien on the cargo in certain
circumstances related to non payment of freight and
other charges.
 A lien is the right of one person to retain
possession of goods owned by another until the
possessor’s claim against the owner have been
satisfied.

Freight and charges clause
 This deals with the payment of freight and other
charges under the bill of lading. Freight can be pre
or post paid.

General average clause
 The bill of lading will state the fact that if general
average occurs, the York Antwerp Rules should
apply.
 When a ship is on a voyage, the ship, cargo and
freight form part of a common adventure.
 If the common adventure comes under treat, an
extra ordinary sacrifice has to be made to save the
whole adventure.

What is General average?
There is a general average act when, and only when,
any extraordinary sacrifice or expenditure is
intentionally made or incurred for the common
safety for the purpose of preserving from peril the
property involved in a common maritime
adventure.
Rule A – York Antwerp Rules

Salvage clause
This clause will apply in circumstances where it may
be necessary to salve a vessel.
It stipulates that a salvage reward should be paid in
circumstances where there is a sister ship salvage.

What is salvage?
Any act or activity to assist a vessel, or any other
property in danger, in navigable waters, or in any
other waters whatsoever.
Salvage is a legal liability arising out of the fact that
property has been saved and that the owner of the
property, who has had the benefit of the property
being saved, should make remuneration to those who
have conferred the benefit upon him.

Both to blame collision clause
When both ships are at fault during a collision, it is
known as both to blame collision.
Losses will be allocated in proportion to the amount
of blame accorded to each ship.
This is in proportion to the fault committed on each
side
The total loss caused by the collision is determined
and the loss is allocated based on the degree of fault
for which each ship is to be blamed.

Under a contract of carriage, when both ships are
involved in collision, the carrying vessels depending
on whose fault it is, is exonerated from liability due to
the error in navigation exemption under the Hague
Visby Rules.
The cargo owner losses any right of claim against the
carrying vessel under the rules.

American law takes an exception to this rule.
When a collision occurs between two blameworthy
vessels under USA laws the cargo owner is considered
an innocent party with the right to sue either guilty
vessel on a joint and several liability basis for full
damage. (The carrying vessel would have the benefit
of relying on the error in navigation clause under the
contract of carriage)

Shipowners have attempted to protect themselves
from the consequences of this indirect liability by
incorporating a “both to blame collision” clause in
bills of lading and charter parties.
The liability imposed on the shipowner is reverted
back to cargo owners to pay.

 Under English law however, the cargo owner is
identified with the fault of the carrying ship and it
can only recover from the non carrying vessel based
on its degree of fault.

Himalaya Clause
This clause seeks to protect agents, servants,
subcontractors etc of the shipowner by placing them
on the same immunities and rights of the carrier
himself.
This is to prevent actions brought in tort against the
master or other servants of the shipowner.
Case law: (Alder v Dickson 1954)
Name derived from a Passenger ship

Background Himalaya clause
A lady passenger Mrs. Alder was injured when
descending a gangway from the ship; the gangway
has been inadequately secured.
She found out that under the contract of carriage
evidenced by her passenger ticket, she could not
claim damages from the shipowner but she
successfully sued the shipmaster – Capt.. Dickson
in tort. She argued that he failed in his duty of
care to secure the gangway.

Government directives, war
strike etc.
This clause is also known as ‘matters affecting
performance.
It gives the carrier the right to discharge goods at an
intermediate port if an unforeseen impediment
frustrate the adventure.
 The carrier can call at a safe port and discharge the
goods this is taken to be a full fulfilment of the
contract of carriage and therefore transporting the
goods back to the original port of discharge is at
merchant’s expense.
Liability
For all maritime conventions, Liability is fault based.
The carrier should be found to have been negligent.
There must be a breach of the duty of care.
Such negligence or breach of care should have caused
or resulted in the loss.

The scope of liability
If a carrier’s liability for damage during transport
is established under the rules, the next issue is the
quantum of damages the cargo owner can claim.
An injured party is entitled to compensation for
his economic loss on the basis of the value of the
goods of the same kind at the place and time
when the goods were or should have been
delivered.
The value is determined on the basis of the
exchange price or in the absence the market price.

The unit of limitation
Under contract of carriage rules however, the rules on
liability are different.
Liability will not exceed a fixed amount per unit or
per kilo of cargo if the carrier has been found to have
been negligent in the performance on the contract.
If the offence is covered under the Rules, the carrier
can limit his liability.
The amount involved depends on which of the Rules
apply.

Limitations of liability
If the carrier is found liable, he can limit his
liability depending on the convention governing
the carriage.
Calculation of loss is per unit or package
whichever is higher
SDR- Special Drawing Rights.
Set by IMF and translated into local currency
I SDR = - amount in local currency

Limitations of liability
Hague Visby – 666.67 units of account
Hamburg – 835 units of account or 2 kilos of gross

weight of the goods whichever is higher
Rotterdam Rules – 875 units of accounts per

package or 3 units of account per kilo of gross
weight whichever is higher

What constitutes a unit or
package?
The text of the bill of lading is determinative.
If the bill of lading states one container, it is taken to
mean one unit.
If the bill of lading states one container containing
200 cases, then it means 200 units + one ( the
container itself.)

Loss of right to limit
If an act has been done recklessness or with intent
then the carrier or any of his servants covered cannot
rely on the rules and therefore cannot limit their
liability.

Why carriers can limit their liability
Lord Dennin in his final word in The Bramely Moore
had this to say:
“I agree that there is not much justice in this rule, but
limitation of liability is not a matter of justice. It is a
rule of public policy which has its origin in history
and its justification in convenience”.

Time Bar
It is up to cargo owners to establish that physical loss
or damage to the cargo arose during the performance
of the contract of carriage and that he has suffered
economic loss.
Hague/ Visby – I year, Hamburg/ Rotterdam 2 years
Time begins to count at the time of delivery or when
delivery should have taken place ( if the goods are
loss)
If the carrier acknowledges liability, time ceases to
run.
Written notice of loss to the carrier
Two types of losses can be suffered by the cargo interest
at the time of delivery.
Apparent and concealed loss or damage.
It is in the interest of cargo owners to give the carrier a
written notice of loss especially when the loss was not
apparent at the time of delivery. (3 days after delivery)
When the loss is apparent, a notation to that effect
should be done by the carrier’s representative on the
delivery order before taken delivery. (instance notation)

Notice of loss
Failure to give notice of loss or damage to the carrier
at the time of delivery or within the stipulated time
indicates that the goods were delivered in apparent
goods order and condition.
Therefore it is in the interest of the merchant to do so
in writing to have evidential prove of such
correspondence.
Press upon the carrier to get a reply.

Jurisdiction, Forum and choice
of law
The Hague and the Hague Visby Rules do not have a
provision on Jurisdiction, forum or choice of law.
Therefore we have carrier oriented jurisdiction
clauses in the bill of lading.
It is therefore not strange that our local courts have
very rare cases on the Hague Rules.
There are however instances where the Jurisdiction
clauses inserted into the bill of lading ca be set aside
by the courts.

Law and Jurisdiction
Maritime cases usually have significant links with
other countries.
In deciding the law and jurisdiction. Certain
requirements must be met.
1. If the parties have agreed that the dispute should be
settled in that jurisdiction.
2. Whether the case has a connection to the country in
question i.e. the defendants place of business is in the
country in question
3. The contract was entered into in that country
4. The place of delivery of the goods is in that country

Law and Jurisdiction
Once the Jurisdiction has been established, then a
choice of law will be decided on.
Whether to apply the law of the country of
jurisdiction or to apply any other law based on
international private law principles.
Luckily the Hamburg and Rotterdam Rules provides
for Jurisdiction and arbitration.

Burden of Proof
The burden of proof is on the one claiming the loss.
The reverse burden of proof is on the carrier,
If the carrier seeks to rely on any exemption, then he
has the burden of proof that such an exemption
caused the loss.

Thank you

Tambe Chalomine A, Esq.: GIFF - All Rights Reserved

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TAMBE CHALOMINE A, ESQ.

GIFF - All rights reserved

When a shipowner undertakes to carry goods by sea

In the broad sense, it means a contract to perform

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 Contracts contained in a charterparty

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Evidenced by bill of lading

Cargo owner only requires shipping space as opposed

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 Governed by mandatory rules.

The shipper has less freedom to negotiate the terms

Rules are already standard and inflexible

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Carrier - A carrier can be defined as the person

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The consignee may not originally be a party to

Might step into the contract depending on the

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Damaged, lost, delayed

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Carrier – the person who through a contract

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Time chartering - chartering where

Bareboat or demise chartering – Leasing of a

Freedom of contract as charterer can negotiate the

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Mate’s receipt – The mate’s receipt is a document which

Bill of lading – To be discussed in detail below.

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Issued to serve as a receipt of cargo.

Enforceable under contract of carriage if transferred to a

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A clean bill of lading

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The carrier shall be entitled but not obliged to substitute

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