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Carriage of goods
Is your jurisdiction party to any international conventions on the carriage of goods by sea? If so, does the relevant domestic implementing law contain any notable modifications (eg, extensions to the scope of application)?
Nigeria is a party to the Hague Rules – Unification of Certain Rules Relating to Bills of Lading 1924, which have been incorporated into domestic legislation as the Carriage of Goods by Sea Act 2004. It essentially covers only outgoing cargo, not imports. Consequently, when the act was the exclusive mandatory legal carriage regime in Nigeria, imports were governed by the contractually agreed carriage regime (contained in the bill of lading).
Nigeria subsequently ratified the Hamburg Rules, which were implemented through the United Nations Convention on the Carriage of Goods by Sea (Ratification and Enforcement) Act 2005. However, this act did not repeal the Carriage of Goods by Sea Act, so the two accordingly exist side by side.
While ordinarily the subsequent law should override the former legislation, the fact that it has not fulfilled the condition precedent for coming into effect in Nigeria – implementing the denunciation of the Hague Rules as provided for by Article 31 of the Hamburg Rules – makes it uncertain whether the Hamburg Rules have indeed been lawfully and validly implemented in Nigeria. It therefore seems that that the two carriage regimes coexist.
There are no modifications to the international convention in the domestic implementing law.
What is the official extent of the carrier’s responsibility for goods?
The extent of the carrier’s responsibility is from port to port – that is, from the port of loading, through carriage and to the port of discharge. Once a shipper has established loss, the burden of proving how the loss occurred shifts to the carrier.
Contractual limitation of liability
May parties contract out of any legal provisions governing cargo liability?
The possibility of parties contracting out of the legal provisions governing liability depends largely on the carriage regime governing the transaction. Generally, with regard to carriage contracts providing for the Hague Rules, the fact that the Carriage of Goods by Sea Act 2004 does not apply to imports makes the act not compulsorily applicable to them. Therefore, the governing law of the bill of lading must be relied on.
However, the Hamburg Rules do not generally provide for any derogation for parties to contract out of their stipulated provisions.
Title to sue
Who has title to sue on a bill of lading?
The right to sue on contracts of carriage of goods by sea is statutory. Thus, only a consignee of goods in a bill of lading or an endorsee of the bill of lading may sue. A re-endorsee or any person to whom a bill of lading has been transferred with or without actual endorsement may also sue.
What is the time bar for cargo claims?
Under the Hamburg Rules, cargo claims become time barred two years after the delivery of the goods or two years after the last day that the goods should have been delivered. The same rule applies under the Hague Rules, but the time bar is one year.
Section 18 of the Admiralty Jurisdiction Act has an omnibus provision regarding limitation periods for maritime claims, maritime liens and other charges which are not covered by a specific contractual provision or any applicable law. The specified period is three years.
Definition of ‘carrier’ and ‘goods’
How are ‘carrier’ and ‘goods’ defined in respect of cargo claims? Is there any especially pertinent case law on this issue?
‘Carrier’ refers to any person by whom or in whose name a contract of carriage of goods by sea has been concluded with a shipper.
‘Goods’ include live animals; where the goods are consolidated in a container, pallet or similar article of transport or where they are packed, ‘goods’ include such article of transport or packaging if supplied by the shipper.
Defences available to carrier
Under what circumstances may the carrier rely on the perils of the sea defence? What other defences are available to the carrier?
The carrier can rely on the perils of the sea defence where:
- the vessel was seaworthy;
- there has been no negligent conduct by the carrier, master or crew in the management of the vessel; and
- the carrier has discharged its obligations to the cargo owners to properly handle, load, stow, care for and discharge the cargo.
Other defences available to the carrier include the following:
- The carrier or its servants took all measures possible to mitigate the loss.
- In respect of live animals, the carrier submits proof of compliance with the special instructions of the shipper for the carriage of animals where loss, damage or delay in delivery could be attributed to special risks inherent in the carriage of such animals.
- The loss, damage or delay in delivery resulted from efforts to save life or property at sea.
- The shipper failed to properly stow, lash or otherwise pack the cargo securely.
What legal protections and defences against cargo claims are available to agents of the carrier and other third parties (eg, Himalaya clauses)?
The following are available:
- If a servant or agent of the carrier proves that it acted within the scope of its employment, it is entitled to avail of the defences and limits of liability that the carrier is entitled to invoke, if a clause to this effect (ie, Himalaya clause) is included in the bill of lading.
- An indemnity may be agreed between the carrier and its servants and agents against the claims of cargo interests which is also made a term of the bill of lading (this is referred to as a circular indemnity clause).
Deviation from route
Under what circumstances is deviation from the agreed route allowed?
Deviation is allowed under two circumstances:
- to save human lives; and
- for safe prosecution of the voyage.
Claims against shipper
What claims can the carrier pursue in respect of the shipper’s failure to meet its obligations?
The carrier can pursue the following claims:
- for payment of damages for goods and expenses incurred in respect of destroying or rendering innocuous flammable, explosive or dangerous goods to which the carrier had not consented;
- for payment of damages for loss to the carrier caused by the actual fault or neglect of the shipper;
- for payment of freight and/or interest on freight;
- for demurrage; and
- in respect of general average.
Multimodal carriage of goods
How is multimodal carriage regulated in your jurisdiction?
There is no single enactment regulating multimodal carriage of goods in Nigeria. A Carriage of Goods by Sea Bill which contains provisions regulating multimodal carriage was drafted a few years ago as an executive bill, although it is yet to be enacted by the National Assembly.
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