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Carriage of goods

International conventions

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)?

The Bahamas is a party to the Carriage of Goods by Sea Convention, which has been implemented into its domestic legislation through the Carriage of Goods by Sea Act. The act makes the following notable modifications:

  • Article VI of the convention in relation to the carriage of goods by sea in ships carrying goods from any port in The Bahamas to any other port in The Bahamas have effect as though said article referred to goods of any class instead of to particular goods and as though the proviso to the second paragraph of said article were omitted; and
  • as regards Rules 4 and 5 of Article III in relation to bulk cargoes, where 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 is so ascertained or accepted is stated in the bill of lading, then – notwithstanding anything in the rules:
    • the bill of lading will 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; and
    • the accuracy thereof at the time of shipment will not be deemed to have been guaranteed by the shipper.

Carrier’s responsibility

What is the official extent of the carrier’s responsibility for goods?

According to Article III(1) of the Carriage of Goods by Sea Act, carriers are bound, before and at the beginning of the voyage, to exercise due diligence to:

  • make the ship seaworthy;
  • properly attend to, equip and supply the ship; and
  • make the holds, refrigeration and cool chambers and all other parts of the ship in which goods will be carried fit and safe for their reception, carriage and preservation.

 

Subject to the provisions of Article IV, carriers must properly and carefully load, handle, stow, carry, keep, care for and discharge the goods carried.  

After receiving the goods into their charge, carriers or their masters or agents must, on the shipper’s demand, issue it a bill of lading showing, among other things:

  • the leading marks necessary to identify that the goods are the same as those furnished in writing by the shipper before the loading of such goods starts, provided that such marks are stamped or otherwise shown clearly on 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;
  • either the number of packages or pieces or the quantity or weight, as the case may be, as furnished in writing by the shipper; and
  • the apparent order and condition of the goods.

No carrier or master or agent of a carrier can be bound to state or show in the bill of lading any marks, numbers, quantities or weights which they have reasonable ground for suspecting do not accurately represent the goods actually received or which they have no reasonable means of checking.

After goods have been loaded, the bill of lading issued by the carrier or its master or agent to the shipper will, if the shipper so demands, become a shipped bill of lading, provided that – if the shipper previously took up any document of title to such goods – they surrender the goods as against the issue of the shipped bill of lading. The carrier may choose for such document of title to be noted at the port of shipment by the carrier, master or agent with the name or names of the ship or ships on which the goods have been shipped and the date or dates of shipment; when so noted, the same will – for the purpose of Article IV – be deemed to constitute a shipped bill of lading.

Contractual limitation of liability

May parties contract out of any legal provisions governing cargo liability?

Article III(8) of the Second Schedule to the Carriage of Goods by Sea Act provides that 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 therein for lessening such liability otherwise than as provided in these rules will be null and void and of no effect. However, a benefit of insurance or similar clause will be deemed to be a clause relieving the carrier from liability.

Moreover, Article VI of the said schedule of the act establishes that, notwithstanding the provisions of the preceding articles, a carrier or its master or agent and a shipper will – as regards 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
  • the rights and immunities of the carrier in respect of such goods or its obligation as to their seaworthiness.

However, such agreements must not contravene public policy or the care or diligence of the carrier’s (or its master’s or agent’s) servants or agents in regard to the loading, handling, stowage, carriage, custody, care and discharge of the goods carried by sea, provided that:

  • no bill of lading has been or will be issued; and
  • the terms agreed will be embodied in a receipt (which will be a non-negotiable document and marked as such).

Any agreement so entered into will have full legal effect.

Article VI of the Second Schedule to the act will not apply to ordinary commercial shipments made in the ordinary course of trade, but rather only to other shipments where the character or conditions of the property to be carried or the circumstances, terms and conditions under which the carriage is to be performed reasonably justify a special agreement.

Further, Article VII of the said schedule states that nothing contained therein will 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 before the loading on and subsequent to the discharge from the ship on which the goods are carried by sea.

Therefore, cargo liability may be limited in accordance with the conditions established in the above articles.

Title to sue

Who has title to sue on a bill of lading?

The consignee has title to sue on a bill of lading.

Time bar

What is the time bar for cargo claims?

The time bar for cargo claims is 12 months.

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?

‘Goods’ are defined as all types of good, ware, merchandise and article, except living animals and cargo, which by the contract of carriage is stated as being carried on deck and is so carried.

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?

Neither the carrier nor the ship will be responsible for loss or damage arising or resulting from:

  • acts, including of negligence or default, of the master, mariner, pilot or the servants of the carrier during the ship’s navigation or management;
  • fire, unless caused by the actual fault or privity of the carrier;
  • perils, dangers and accidents of the sea or other navigable waters;
  • acts of God;
  • acts of war;
  • acts of public enemies;
  • arrests or restraints of royals, rulers or people or seizure under a legal process;
  • quarantine restrictions;
  • acts or omissions of the shipper or owner of the goods or their agent or representative;
  • strikes or lock-outs or the stoppage or restraint of labour (for whatever reason), whether partial or general;
  • riots and civil commotions;
  • saving or attempting to save life or property at sea;
  • wastage in bulk or weight or any other loss or damage arising from an inherent defector the quality or vice of the goods;
  • insufficiency of packing;
  • insufficiency or inadequacy of marks;
  • latent defects not discoverable by due diligence; or
  • any other cause where there is no actual fault or privity of the carrier, or without the fault or neglect of the agents or servants of its carrier. However, the burden of proof will 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 its agents or servants contributed to the loss or damage.  

Shippers will not be responsible for loss or damage sustained by a carrier or a ship arising or resulting from any cause without the act, fault or neglect of the shipper or its agent or servants.

Neither the carrier nor the ship will be or become liable for any loss or damage to or in connection with goods in an amount exceeding £100 per package or unit, or the equivalent of that sum in another currency, unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading.

Goods of an inflammable, explosive or dangerous nature to whose shipment the carrier or its master or agent 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. In such cases, the shipper of such goods will be liable for all damages and expenses directly or indirectly arising or resulting from such shipment. Third parties

What legal protections and defences against cargo claims are available to agents of the carrier and other third parties (eg, Himalaya clauses)?

According to Article 11 of the First Schedule to the Maritime Claims Limitation of Liability Act (the Convention relating to the Carriage of Passengers and their Luggage by Sea (1974) Protocol, as amended in consequence of the Protocol of 19 November 1976), if an action arising from damage covered by this convention is brought against a servant or agent of the carrier or the performing carrier, such servant or agent will, if they can prove that they acted within the scope of their employment, be entitled to avail themselves of the defence and limits of liability which the carrier or performing carrier is entitled to invoke under the convention. 

Deviation from route

Under what circumstances is deviation from the agreed route allowed?

Any deviation to save or attempt to save life or property at sea and any other reasonable deviation will not be deemed to be an infringement or a breach of the applicable rules or the contract of carriage and the carrier will not be liable for any loss or damage resulting therefrom.

Claims against shipper

What claims can the carrier pursue in respect of the shipper’s failure to meet its obligations?

Under Article III(5) of the Second Schedule to the Carriage of Goods by Sea Act (the Rules Relating to Bills of Lading), a shipper will be deemed to have guaranteed to a carrier the accuracy at the time of shipment of the marks, number, quantity and weight of goods as furnished by it. Further, the shipper must indemnify the carrier against all losses, damages and expenses arising or resulting from inaccuracies in such particulars. A carrier’s right to such indemnity will in no way limit its responsibility and liability under the contract of carriage to any person other than the shipper.

Under Article IV(3) of the Second Schedule to the Carriage of Goods by Sea Act, a shipper will not be responsible for any 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, its agent or its servants.

Carriers can pursue a claim against a shipper where the latter fails to meet these obligations.

Multimodal carriage of goods

How is multimodal carriage regulated in your jurisdiction?

No specific legislation regulates multimodal carriage in The Bahamas.    

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