cogsa

7/21/2019 COGSA

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COGSA

C ARRIAGE OF GOODS BY SEA ACT

(COMMONWEALTH ACT NO. 65; PUBLIC ACT NO. 521, 74TH USCONGRESS)

WHAT IS THE PRINCIPAL PURPOSE OF THE CARRIAGE OF GOODS B SEA ACT!

The principal purpose of the COGSA is to bring about uniformityto ocean bills of lading and to give eect to the Brussels Treaty(Preamble Common!ealth Act" #o" $%&"

WHAT CONTRACTS ARE CO"ERED B THE COGSA!

COGSA is applicable to all contracts for the carriage of goods bysea to and from Philippine ports in foreign trade (Section '&" COGSA

does not apply to purely domestic transport"

#OTS)

To *no! !hether !hich la! is applicable to a contract for thecarriage of goods by sea)

a" +istinguish !hether the carrier is a common carrier orprivate carrier,

b" -here the vessel is going)

'" .rom the Philippines to a foreign country) applyla!s of such foreign country (Article '/%0 CivilCode&,

1" .rom a foreign country to the Philippines)

• 2f common carrier)

3 primarily governed by the Civil Code3 then COGSA if applicable (e"g" foreign trade&3 Code of Commerce

• 2f private carrier)

3 COGSA 4more speci5c3 Code of Commerce3 Civil Code (provisions not dealing !ith

common carriers e"g" torts contracts&

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IN WHAT SITUATIONS DOES COGSA PRIMARIL APPL !

-here the parties e6pressly stipulate that COGSA shall governtheir respective rights and obligations"

CAN COGSA APPL TO DOMESTIC TRADE!

Generally no unless the parties agree other!ise"

WHAT APPLICATION DOES COGSA HA"E IN CARRIAGE OF

PASSENGERS!

#one COGSA applies only to carriage of goods"

PRESCRIPTI"E PERIOD UNDER SECTION # (6)!

The carrier and the agent shall be discharged from liability inrespect of loss or damage unless suit is brought !ithin year from)

'" 2n case of damaged goods) .rom the time the delivery of the goods!as made"

1" 2n case of non3delivery (i"e" lost goods&) .rom the date the goodsshould have been delivered"

MISDELI"ER OR CON"ERSION!

The one3year prescriptive period in Section 0 ($& applies only!here there is loss or damage" 7oss contemplates only !here nodelivery at all !as made by the carrier of the goods because the samehad perished gone out of commerce or disappeared in such a !aythat their e6istence is un*no!n or they cannot be recovered" 8ence incase of misdelivery (delivery to !rong persons& or conversion of thegoods the rules on prescription found in the Civil Code shall apply thatis '9 years for contracts, : years for tortious obligations"

IS THE PRESCRIPTI"E PERIOD UNDER THE COGSA INTERRUPTEDFROM THE TIME OF THE MA$ING OF E%TRA& 'UDICIAL DEMAND OR FILING OF

'UDICIAL ACTION AS PRO"IDED B ARTICLE 115 OF THE CI"IL CODE!

#o" The one3year period provided under the COGSA is a specialprescriptive period uniform !orld!ide"

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RATIONALE BEHIND THE #&DA NOTICE AND RELATI"EL SHORT PERIOD

OF PRESCRIPTION

'" To provide the carrier an opportunity to loo* for the lost goods,

1" To discover !ho is at fault,0" 2n case of transshipment to determine !hen and !here thedamage occurred"

#OTS)

3 The shipper consignee or legal holder of a bill of lading may invo*ethe prescriptive period although the proviso in Section 0 ($& givesthe impression that it is the shipper alone !ho can invo*e the same"

3 The prescriptive period does not apply to the action by an insurer assubrogee of the consignee"

3 Stipulation in a bill limiting the carrier;s liability contrary to Section0 (<& is void e6ample) provision in the bill e6cepting the o!ner fromliability for loss or damage of cargo unless a !ritten notice thereof !as given to the carrier !ithin 09 days"

3 Such provision is contrary to the provision of the COGSA sinceSection 0 provides that even if a notice of loss or damage is notgiven as re=uired that fact shall not pre>udice the right of theshipper to bring a suit !ithin ' year after delivery of the goods"

3 #otice re=uirements)

COGSA) Section 0 ($& 4 2f loss or damage is apparent) protest

as soon as the goods are received"

2f not apparent 4 protest !ithin 0 days after delivery"

Code of commerce) Article 0$$3 2f apparent 4 protest at the time of the delivery 2f not apparent 4 protest !ithin 1: hours after

receipt

-A?SA-) Article 1$)2n case of damage of baggage 4 protest !ithin 0 days

from receipt2n case of damage of goods 4 protest !ithin / daysfrom receipt2n case of delay 4 protest !ithin ': days from receipt"

3 .ailure to comply !ith the 03day notice re=uirement under theCOGSA does not aect the right of the ship o!ner to bring actionprovided he brings the same !ithin ' year"

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3 This must be distinguished from the notice re=uirement in the-A?SA- Convention and Code of Commerce !here noticere=uirement is a condition precedent for the right of action againstthe ship o!ner to accrue"

3 Amount recoverable in case of loss) @%99"99 per pac*age even if

not stipulated"3 The plainti cannot dispute said limitation on the ground that it !asnot freely and fairly agreed upon or that it is against public policybecause the la! itself provides for said limitation, thus the same isdeemed read into their contract"

3 Pac*age here means individual pac*aging of the goods (does notcover one container van"

3 Parties may agree to an amount of liability less than %99"99 underSection : (%&" By providing that @%99"99 is the ma6imum liabilitythe la! does not disallo! an agreement for liability at a lesseramount" oreover Article '/: of the Civil Code e6pressly allo!s

the limitation of the carrier;s liability"

WHEN SHALL A SHIPPED BILL OF LADING BE ISSUED!

After the goods are loaded the bill of lading to be issued by thecarrier master or agent of the carrier to the shipper shall if theshipper so demands be a DshippedD bill of lading Provided That if theshipper shall have previously ta*en up any document of title to suchgoods he shall surrender the same as against the issue of theDshippedD bill of lading but at the option of the carrier such documentof title may be noted at the port of shipment by the carrier master or

agent !ith name or name the names of the ship or ships upon !hichthe goods have been shipped and the date or dates of shipment and!hen so noted the same shall for the purpose of this section bedeemed to constitute a DshippedD bill of lading (#o" / Section 0&"

DOES THE COGSA AFFECT THE RIGHTS AND OBLIGATIONS OF THE

CARRIER UNDER SPECIFIC LAW!

The provisions of this Act shall not aect the rights andobligations of the carrier under the provisions of the Shipping Act

''$ or under the provisions of section :1<' to :1< inclusive of the?evised Statutes of the Enited States or of any amendments thereto,or under the provisions of any other enactment for the time being inforce relating to the limitation of the liability of the o!ners of seagoingvessels (Section <&"

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MA THE COMMON CARRIER DISCRIMINATE BETWEEN COMPETITING

SHIPPERS!

#othing contained in this Act shall be construed as permitting acommon carrier by !ater to discriminate bet!een competing shipperssimilarly place in time and circumstances either (a& !ith respect to theright to demand and receive bills of lading sub>ect to the provisions of this Act, or (b& !hen issuing such bills of lading either in the surrenderof any of the carrierFs rights and immunities or in the increase of any of the carrierFs responsibilities and liabilities pursuant to section $ title 2of this Act or (c& in any other !ay prohibited by the Shipping Act ''$s amended (Section &"

WHEN IS THE WEIGHT STATED IN THE BILL OF LADING NOT A PRIMA

FACIE E"IDENCE OF ITS ACCURAC AGAINST THE CARRIER NOR DEEMED TOBE GUARANTEED B THE SHIPPER!

-here under the customs of any trade the !eight of any bul*cargo inserted in the bill of lading is a !eight ascertained or acceptedby a third party other than the carrier or the shipper and the fact thatthe !eight is so ascertained or accepted is stated in the bill of ladingthen not!ithstanding any thing in this Act the bill of lading shall notbe deemed to be prima facie evidence against the carrier of the receiptof goods of the !eight so inserted in the bill of lading and theaccuracy thereof at the time of shipment shall not be deemed to have

been guaranteed by the shipper (Section ''&"

TO WHAT CONTRACTS SHALL THE COGSA NOT APPL !

This Act shall apply to all contracts for carriage of goods by seato or from ports of the Enited States in foreign trade" As used in thisAct the term DEnited StatesD includes its districts territories andpossessions) Provided ho!ever That the Philippine legislature may byla! e6clude its application to transportation to or from ports of thePhilippine 2slands" The term Dforeign tradeD means the transportation of goods bet!een the ports of the Enited States and ports of foreign

countries" #othing in this Act shall be held to apply to contracts forcarriage of goods by sea bet!een any port of the Enited States or itspossessions and any other port of the Enited States or its possession)Provided ho!ever That any bill of lading or similar document of title!hich is evidence of a contract for the carriage of goods by seabet!een such ports containing an e6press statement that it shall besub>ect to the provisions of this Act shall be sub>ected hereto as fullyas if sub>ect hereto as fully as if sub>ect hereto by the e6press

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provisions of this Act) Provided further That every bill of lading orsimilar document of title !hich is evidence of a contract for thecarriage of goods by sea from ports of the Enited States in foreigntrade shall contain a statement that it shall have eect sub>ect to theprovisions of this Act (section '0&"

WHEN MA THE PRO"ISIONS OF COGSA BE SUSPENDED!

Epon the certi5cation of the Secretary of Commerce that theforeign commerce of the Enited States in its competition !ith that of foreign nations is pre>udiced the provisions or any of them of Title 2 of this Act or by the la!s of any foreign country or countries relating tothe carriage of goods by sea the President of the Enited States mayfrom time to time by proclamation suspend any or all provisions of Title 2 of this Act for such periods of time or inde5nitely as may be

designated in the proclamation" The President may at any time rescindsuch suspension of Title 2 hereof and any provisions thereof !hich mayhave been suspended shall thereby be reinstated and again apply tocontracts thereafter made for the carriage of goods by sea" Anyproclamation of suspension or rescission of any such suspension shallta*e eect on a date named therein !hich date shall be not less thanten days from the issue of the proclamation"Any contract for the carriage of goods by sea sub>ect to the provisionsof this Act eective during any period !hen title 2 hereof or any partthereof is suspended shall be sub>ect to all provisions of la! no! orhereafter applicable to that part of Title 2 !hich may have thus been

suspended (Section ':&"

MA THE CARRIER BE RELIE"ED FROM LIABILIT FOR LOSS OR

DAMAGE CAUSED B NEGLIGENCE, FAULT OR FAILURE IN THE FULFILLMENT OF

ITS DUTIES AND OBLIGATIONS!

Any clause covenant or agreement in a contract of carriagerelieving the carrier or the ship from liability for loss or damage to or inconnection !ith the goods arising from negligence fault or failure inthe duties and obligations provided in this section or lessening such

liability other!ise than as provided in this Act shall be null and voidand of no eect" A bene5t of insurance in favor of the carrier or similarclause shall be deemed to be a clause relieving the carrier fromliability (#o" < Section 0&"

RIGHTS AND IMMUNITIES*

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CARRIER AND THE SHIP NOT LIABLE WHEN*

'" #either the carrier nor the ship shall be liable for loss or damagearising or resulting from unsea!orthiness unless caused by !antof due diligence on the part of the carrier to ma*e the ship

sea!orthy and to secure that the ship is properly mannede=uipped and supplied and to ma*e to the holds refrigeratingand cool chambers and all other parts of the ship in !hich goodsare carried 5t and safe for their reception carriage andpreservation in accordance !ith the provisions of paragraph ('&of section 0" -henever loss or damage has resulted fromunsea!orthiness the burden of proving the e6ercise of duediligence shall be on the carrier or other persons claiminge6emption under the section"

1" #either the carrier nor the ship shall be responsible for loss or

damage arising or resulting from

'" Act neglect or default of the master mariner pilot or theservants of the carrier in the navigation or in themanagement of the ship,

1" .ire unless caused by the actual fault or privity of thecarrier,

0" Perils dangers and accidents of the sea or other navigable!aters,

:" Act of God,%" Act of !ar

$" Act of public enemies,/" Arrest or restraint of princes rulers or people or seiHure

under legal process,<" Iuarantine restrictions," Act or omission of the shipper or o!ner of the goods his

agent or representative,'9"Stri*es or loc*outs or stoppage or restraint of labor from

!hatever cause !hether partial or general, Provided Thatnothing herein contained shall be construed to relieve acarrier from responsibility for the carrierFs o!n acts,

''"?iots and civil commotions,

'1"Saving or attempting to save life or property at sea,'0"-astage in bul* or !eight or any other loss or damage

arising from inherent defect =uality or vice of the goods,':"2nsuJciency of pac*ing,'%"2nsuJciency of inade=uacy of mar*s,'$"7atent defects not discoverable by due diligence, and'/"Any other cause arising !ithout the actual fault and privity

of the carrier and !ithout the fault or neglect of the agents

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or servants of the carrier but the burden of proof shall beon the person claiming the bene5t of this e6ception tosho! that neither the actual fault or privity of the carriernor the fault or neglect of the agents or servants of thecarrier contributed to the loss or damage"

0" Any deviation in saving or attempting to save life or property atsea or any reasonable deviation shall not be deemed to be aninfringement or breach of this Act or of the contract of carriageand the carrier shall not be liable for any loss or damageresulting therefrom) Provided ho!ever That if the deviation isfor the purpose of loading cargo or unloading cargo orpassengers it shall prima facie be regarded as unreasonable(Section :&"

WHAT ARE THE LOSSES OR DAMAGES FOR WHICH THE SHIPPER SHALLNOT BE LIABLE!

The shipper shall not be responsible for loss or damage sustainedby the carrier or the ship arising from any cause !ithout the act faultor neglect of the shipper his agents or servants (Section : #o" 0&"

WHAT IS THE LIMIT OF THE LIABILIT OF THE CARRIER OR THE SHIP

FOR THE LOSS OR DAMAGE TO THE GOODS TRANSPORTED!

#either the carrier nor the ship shall in any event be or become

liable for any loss or damage to or in connection !ith thetransportation of goods in an amount e6ceeding @$99 per pac*agela!ful money of the Enited States or in case of goods not shipped inpac*ages per customary freight unit or the e=uivalent of that sum inother currency unless the nature and value of such goods have beendeclared by the shipper before shipment and inserted in the bill of lading" This declaration if embodied in the bill of lading shall be primafacie evidence but shall not be conclusive on the carrier"

By agreement bet!een the carrier master or agent of thecarrier and the shipper another ma6imum amount than that

mentioned in this paragraph may be 56ed) Provided That suchma6imum shall not be less than the 5gure above named" 2n no eventshall the carrier be liable for more than the amount of damage actuallysustained"

#either the carrier nor the ship shall be responsible in any eventfor loss or damage to or in connection !ith the transportation of thegoods if the nature or value thereof has been *no!ingly and

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fraudulently misstated by the shipper in the bill of lading (Section :#o" %&"

WHAT MA BE DONE TO GOODS OF INFLAMMABLE, E%PLOSI"E, OR

DANGEROUS NATURE IN CASE THE CARRIER, MASTER OR AGENT OF THE

CARRIER HAS NOT $NOWLINGL CONSENTED TO THE CARRIAGE THEREOF!

Goods of an inKammable e6plosive or dangerous nature to theshipment !hereof the carrier master or agent of the carrier has notconsented !ith *no!ledge of their nature and character may at anytime before discharge be landed at any place or destroyed or renderedinnocuous by the carrier !ithout compensation and the shipper of such goods shall be liable for all damages and e6penses directly orindirectly arising out of or resulting from such shipment" 2f any suchgoods shipped !ith such *no!ledge and consent shall become adanger to the ship or cargo they may in li*e manner be landed at any

place or destroyed or rendered innocuous by the carrier !ithoutliability on the part of the carrier e6cept to general average if any(Section : #o" $&"

SURRENDER OF RIGHTS AND IMMUNITIES AND INCREASE OF

RESPONSIBILITIES AND LIABILITIES*

MA THE CARRIER SURRENDER AN OF HIS RIGHTS AND IMMUNITIES

OR INCREASE HIS RESPONSIBILITIES!

A carrier shall be at liberty to surrender in !hole or in part all or

any of his rights and immunities or to increase any of hisresponsibilities and liabilities under this Act provided such surrender orincrease shall be embodied in the bill of lading issued to the shipper"

The provisions of this Act shall not be applicable to charterparties, but if bills of lading are issued in the case of a ship undercharter party they shall comply !ith the terms of this Act" #othing inthis Act shall be held to prevent the insertion in a bill of lading of anyla!ful provision regarding general average (Section %&"

#ote that !hat the la! allo!s the carrier to do is to increase any

of his responsibilities but not to unilaterally diminish the same" 8e isalso allo!ed to surrender any of his rights and immunities but not tounilaterally increase his rights and immunities"

SPECIAL CONDITIONS*

WHILE THE CARRIER CANNOT UNILATERALL DIMINISH HIS

RESPONSIBILITIES NOR INCREASE HIS RIGHTS AND IMMUNITIES, MA THE

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CARRIER AND THE SHIPPER AGREE ON THE TERMS OF RESPONSIBILIT AND

LIABILIT OF THE CARRIER AS WELL AS THE RIGHTS AND IMMUNITIES OF THE

CARRIER WITH RESPECT TO THE GOODS SHIPPED OR HIS OBLIGATION AS TO

SEAWORTHINESS!

#ot!ithstanding the provisions of the preceding sections acarrier master or agent of the carrier and a shipper shall in regard toany particular goods be at liberty to enter into any agreement in anyterms as to the responsibility and liability of the carrier for such goodsand as to the rights and immunities of the carrier in respect of suchgoods or his obligation as to sea!orthiness (so far as the stipulationregarding sea!orthiness is not contrary to public policy& or the care ordiligence of his servants or agents in regard to the loading handlingsto!age carriage custody care and discharge of the goods carried bysea) Provided That in this case no bill of lading has been or shall beissued and that the terms agreed shall be embodied in a receipt !hich

shall be a non3negotiable document and shall be mar*ed as such"

Any agreement so entered into shall have full legal eect)Provided That this section shall not apply to ordinary commercialshipments made in the ordinary course of trade but only to othershipments !here the character or condition of the property to becarried or the circumstances terms and conditions under !hich thecarriage is to be performed are such as reasonably to >ustify a specialagreement (Section $&"

MA THE CARRIER AND THE SHIPPER STIPULATE ON THE

RESPONSIBILIT OF THE CARRIER PRIOR TO THE LOADING OF THE CARGOAND SUBSE+UENT TO THE DISCHARGE THEREOF FROM THE SHIP!

#othing contained in this Act shall prevent a carrier or a shipperfrom entering into any agreement stipulation condition reservationor e6emption as to the responsibility and liability of the carrier or theship for the loss or damage to or in connection !ith the custody andcare and handling of goods prior to the loading on and subse=uent tothe discharge from the ship on !hich the goods are carried by sea(Section /&"

T?S)

1. WHAT IS BARRATR !

These are destructive acts committed by the cre! againstthe vessel"

2. HOW DO OU DISTINGUISH BARRATR FROM MUTIN !

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utiny is the act committed by the cre! against thecaptain for the purpose of ta*ing over the command of thevessel !hile barratry is committed not for the purpose of ta*ingover the command of the vessel"

#. WHAT IS A LOO$OUT!

2t is a member of the cre! !ho is assigned to serve as aloo*out that is to !atch the direction !here the vessel isheading for and to observe the oncoming vessels for theguidance of the ship navigator"

4. WHAT IS TRANSSHIPMENT!2n maritime la! transshipment is de5ned as Lthe act of

ta*ing cargo out of one ship and loading it in anotherM or Lthe

transfer of goods from one vessel stipulated in the contract of areightment to another vessel before the place of destinationnamed in the contract has been reachedM or Lthe transfer forfurther transportation from one ship or conveyance to another"M

There is transshipment even if the t!o vessels belong tothe same o!ner"

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