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CHAPTER 6 Carriage of Goods by Sea Act ( Commonwealth Commonwealth Act 65; COGSA )
Prefatory: 1. COGSA refers refers to the rights rights and responsibili responsibilities ties between between shippers and the shipowners (i.e., carrier ) as regards “INTERNATIONAL” carriage of “OO!" #$ "EA” where “Phi “Phi%i %ipp ppin ines es is the the destinat destination” ion” (Note: (Note: Philippines must be the destination because of Article 15! "CC pro#idin$ that the law that $o#erns re$ardin$ carria$e of $oods is the law of destination ) &EN'E: COGSA does not appl% to& (a) A""EN NER ER" 'nternational carr arria$e a$e of PA""E
y
sea sea
b%
Phi%ippines is the destination ( as common carriers e#en if Phi%ippines COGSA onl% applies to carria$e b% sea of goods* )hat applies to international carria$e of passengers y sea is the Ci#il Code as primar% law, law, and Code of Commerce and other special laws as suppletor% Note: )arsaw Con#ention onl% applies to international carria$e of passen$ers and $oods b% AIR ( not not b% S*A ) () !O+E"TI' carria$e of $oods b% sea b% common carriers ( e#en if the $oods are transported b% the sea within Philippines territor%, since COGSA onl% applies to internationa% carria$e carria$e of $oods b% sea AT AT AN$ RATE: RATE: In inte interrnatio national nal carr carria iage ge of good goods s by comm common on carrier, carrier, Civil Civil Code is still still the pri,ary %aw, and only in case of its
de-ciency that COGSA applies suppletory pursuant to Article !"" #CC, or that when both #CC and COGSA have provisions on a given fact however the provision of COGSA is ,ore speci-c than COGSA that that ma$ ma$es the the latt latte e law law appl applie ied d (Note: +% the the wa% wa%, )arsa arsaw w Con#ention on international carria$e of passen$ers and $oods b% A' pre.ai%s o#er o#er Ci#i Ci#ill Code Code cons consid ider erin in$ $ that that Ph Phil ilip ippi pine nes s is a
signatory there thereto to such that the pri,acy of Artic%e /011 does not app%y -this is i,p%ied in the the case case of h hui uill llie ierr #s. +rit +ritis ish h Airwa%s, G "o. 11/0, 2arch 15, /1/ ( where our Supreme Court gi.es pri,acy to to the pro#ision of )arsaw Con#ention o.er
and ao.e our Ci#il Code re$ardin$ the period of prescription prescription of action and th the s2spension of the runnin$ runnin$ of the prescrip prescripti# ti#e e period3) 2. Syno Synops psis is of !at "a go#erns regarding internationa" carriage
of $OO!" $OO!"% % by SEA
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(a)
internationa% ona% “co,,on “co,,on carrier” carrier” fo %or internati for goods with
Phi%ippine port as destination 3irst: Civi Civill Code Code&& 'easo eason n Artic%e /011: 'n all all matt atters ers not reg2%ated b% b% this Ci#il Code 4$o#ernin$ common carriers, the ri$hts and obli$ations of common carriers shall be go.erned y the Code of Commerce and b% special laws 4such as COGSA as suppletor% "econd: COGSA (in (in the absence of pro#ision of "CC, or that both "CC and COGSA pro#ide the law on a $i#en fact howe#er COGSA is more specic) specic ) Third: Code of Commerce (Reason (Reason why 'O"A pre.ai%s o.er
'ode of 'o,,erce: COGSA is a specia% %aw and while Code of Commerce is a genera% %aw) () internationa% ona% “pri.ate “pri.ate carrier” carrier”(i.e., %or internati i.e., not commo common n carrier ) for goods with Phi%ippine port as destination 3irst: COGSA (Reason: Article 166 re$ardin$ primac% of Ci#il Code refers to co,,on carriers and not pri.ate carriers) Note: Sectio Section n (d) (d) COGSA COGSA he term * ship* means any
) used #essel ( whether whether co,,on carrier or pri.ate carrier for the international carria$e of $oods b% sea 7 8O)*9*& "CC
is
the
primar%
law
o#er
COGSA
as
re$ards
international carria$e of $oods b% common carrier b% sea "eco "econd nd:: Code Code of Comm Commer erce ce (Reason why 'O"A pre.ai%s
o.er 'ode of 'o,,erce 'o,,erce:: COGSA is a specia% %aw and while Code of Commerce is a genera% %aw) Third: Civ Civil Code Code ( +ut + ut onl% onl% as to its its pro# pro#is isio ions ns other than
Artic%es /045 to /0678 as thes these e pro# pro#is isio ions ns pert pertai ains ns to co,,on carrier) (c) co,,on9pri.a ri.ate te carrier carrier wi “for orei eign gn port port as %or co,,on9p with “f destination” +hilippine laws does not apply (Reason: Artic%e /064: aw of destination )
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T&T'E 1 Section 1. hen used in this Act (a)
:he term carrier includes the (/) shipowner who entered
into contract with shipper for the internationa% transport of $oods, or (5) the charterer 4 who entered into contract with
shipowner re$ardin$ the 2se of the carrier and entered into contract with shipper for the internationa%transport of $oods) () :he term contract of carriage applies onl% to contracts of carria$e co.ered y a doc2,ent called #9L or an% si,i%ar
p2rporting to be a +< re$ardin$ 4international document of title 4 carria$e of goods b% sea8whether such document issued b%
shipowner or b% the charterer as the case ma% be 7 which document
reg2%ates
the
=uridical
relations
between
a
carrier 4shipowner or charterer and a ho%der of such document 4i.e., the shipper or consignee (c) :he term goods refer to artic%es of e.ery ;ind whatsoe.er8 e>cept %i.e ani,a%s 4hence, meat products included as $oods and car$o which b% the contract of carria$e is stated as bein$ carried
on dec; and is so act2a%%y carried on dec; (d) :he term ship means any .esse% 4 co,,on carrier or pri.ate carrier used for the 4international carria$e of $oods b% sea (e) :he term carriage of goods co.ers the period from the time when the $oods are %oaded 4on ship<#essel 2p to the ti,e when $oods are 2n%oaded from the ship
R&SS (its co#era$e) Section 2. "2
and
liabilities
and
entitled
to
the
rights
and
i,,2nities hereinafter set forth
RESP*S&+&'&T&ES A*, '&A+&'&T&ES Section -. (/)
#efore and at the eginning of the #o%a$e, the carrier
(shipowner
.a$e the ship seaworthy / Proper%y man, e0uip, and supply the ship/
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(c)
.a$e the holds, refrigerating and cooling chambers, and all
other parts of the ship in which goods are carried, -t and safe for their reception 4usa$e, carria$e and preser#ation *ote "ection 4 (/) 'O"A which provides that the carrier shall only observe d2e di%igence8 this is true only if the carrier is a
pri.ate carrier ( A#1 #O hen the carrier is a co,,on carrier (Reason: 2nder Artic%e destination”
as
bolstered
/064 by
provides
"ection
for
the
“%aw
/4 'O"A8 and
of if
+hilippines is the law of destination, then app%y Artic%e /011 which provides for the pri,acy of 'i.i% 'ode regarding co,,on carrier, then by Code of Commerce and specia% %aws such as COGSA are only s2pp%etory 3 45#C5 2nder Artic%e /044 provides that
co,,on carrier are to observe e=traordinary di%igence in the transport of goods 6Philam 'nsurance Co. #s. 8ein$7A Shippin$ Corp., G 1?/1, @ul% !, /17) (5) :he carrier shall proper%y and caref2%%y load, handle, stow, carr%, Beep, care for, and dischar$e the $oods carried (4) After the carrier recei#ed the $oods, on de,and of the shipper, the captain or a$ent of the carrier shall iss2e #9L 7 stating therein amon$ other thin$s& (a) he leadin$ marBs necessary to identif% the $oodswhich mar$s furnished ($i#en) in writing by the shipper before start loading the goods on the ship, provided such mar$s are stamped or otherwise shown clearly upon the goods if uncovered, or on the cases or coverings in which such goods are contained, in such a manner the mar$ ordinarily remains legible until the end of the voyage () 5ither the number of pacBa$es or pieces, or the uantit% or wei$ht, as the case may be, as furnished in writing by the shipper (c) he apparent 4noticeable order and condition of the $oods +rovided, hat no carrier, master, or agent of the carrier, shall be obliged to write in the bill of lading any mar$s, number, 0uantity, or weight which he has reasonable ground for suspecting not accurately to represent the goods actually received, or which he
(7)
has had no reasonable means of chec$ing Such a +< shall be pri,a facie e.idence of the receipt b% the
carrier of the $oods as descried in +< 7 in accordance with para$raphs 4! 4a, 4b, and 4c of this section 4:he rest of the
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pro#ision of this Section ! -3 not applicable in the Philippines bein$ applicable onl% to D.S. (6) :he shipper shall be deemed to ha#e g2aranteed to the
carrier the acc2racy at the time of shipment regarding the marBs, number, uantit%, and wei$ht 4written in the +< as
f2rnished y 4$i#en b% b% the shipper 7 A"E :8*&"hipper shall inde,nify the carrier a$ainst all loss, dama$es, and e>penses arising or res2%ting fro, inacc2racies in such particulars. :he ri$ht of the carrier to such indemnit% shall in no wa% limit his responsibilit% and liabilit% under the contract of carria$e or to an% person other than the shipper 4e.$., consi$nee; insurer of shipper in case of subro$ation (1) (I+PORTANT): >n%ess notice of (apparent) %oss or da,age and the $eneral nature of such loss or dama$e on the $oods be
gi.en
in
writing
4e.$.,
b%
holder
of
+<
whether
the
shipper
discharge 4of the $oods before or at the time of the re,o.a% of the goods into the c2stody of the person entit%ed to de%i.ery thereof under the contract of carria$e 4e.$., b% holder of +< whether the shipper
facie e.idence” of the de%i.ery b% the carrier of the $oods as descried in the #9L* 'f the %oss or da,age is not apparent8 the 4written notice must be gi.en 4e.$., b% holder of +< whether the shipper
gi.en if the state
NLE"": "2it ( action for dama$es ) is ro2ght “within
one year after de%i.ery of the goods” or “the date when the goods sho2%d ha.e een de%i.ered” 4to the person entitled for deli#er% under the contract of carria$e -i.e., the holder of +< which
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could be shipper
written notice of %oss or da,age8 either apparent or concea%ed 4not apparent, is not gi.en as pro#ided for in this section, that fact shall not a?ect or pre<2dice the right of the
"&IPPER (or consi$nee) to ring s2it 4action for dama$es within one year after the de%i.ery of the goods or the date when the goods sho2%d ha.e een de%i.ered 4to the person entitled to deli#er% under contract of carria$e whether the shipper
(Note: emember howe#er that when %oss9da,age of goods is apparent8 and the holder of +< 4shipper
so de,ands8 be a shipped #9L& PO9'E*E, :hat if the shipper shall ha#e pre.io2s%y ta;en 2p any doc2,ent of tit%e 4e.$.,
ordinary#9L -i.e., not Fshipped +< 3 to such $oods, shipper shall s2rrender the same for the issuance of shipped #9L @ 8O)*9* 4instead of surrenderin$ Fordinar% +< to be substituted with Fshipped +<& At the option of the carrier s2ch doc2,ent
of tit%e4i.e., pre#iousl% issued Fordinar% +< ma% be noted ( written ) at the port of shipment b% the carrier
noted 4i.e., written on the pre#iousl% issued Fordinar% +<, the same shall dee,ed to constitute a shipped #9L* *ote“"hipped #9L”: A $ind of bill of lading where it is certi-ed therein that goodseen recei.ed in apparent good condition from the shipper, and een ta;en aoard on a “na,ed ship on
stated date*” his shipped 89: is re2ired y an;s that funds9pays the shipment fare () Any clause9covenant9agreement
in
a
contract
of
carriage
“re%ie.ing (e>emptin$) the carrier fro, %iai%ity for %oss or da,age of goods8 arising from neg%igence8 fa2%t8 or fai%2re in the d2ties and o%igations pro.ided in this section”or
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“%essening s2ch %iai%ity”contrary to this Act shall be n2%% and .oid ( sub=ect to Fa$reement under Section 6 )* (8O)*9*) A ene-t of ins2rance in fa.or of the carrier ( stipulated in the contract of carria$e ) or similar clause, shall be dee,ed to be a
c%a2se9agree,ent re%ie.ing the carrier fro, %iai%ity ( hence, the shipper
) carrier but instead a$ainst the insurer
R&GHTS A*, &334*&T&ES Section 5. (/)
:he 4common carrier nor the ship 4pri#ate carrier shall not e
%ia%e
for
%oss
or
da,age
arisin$
or
resultin$
from
2nseaworthiness ( D"*SS& (a) caused b% %ac; of d2e di%igence to maBe the ship seaworthy8 and () to sec2re that the ship is
proper%y ,anned8 e2ipped8 and s2pp%ied8 and () to maBe to the ho%ds8 refrigerating and coo% cha,ers8 and a%% other
parts of the ship in which $oods are carried -t and safe for their reception 4usa$e, carria$e, and preser#ation,7 in accordance with Section ! Para$raph 1. )hene#er %oss or da,age of goods has resulted from 2nseaworthiness8 the 2rden of pro.ing the
e=ercise of d2e di%igence shall be on the carrier or other persons c%ai,ing e=e,ption ( e.$., insurer of carrier ) under the section Note: As re$ards this “d2e di%igence”8 this is true onl% if the carrier is a pri.ate carrier ( such that if the carrier is a co,,on carrier, then what is to be oser.ed is e=traordinary di%igence pursuant to Artic%e /044 4common carrier to obser#e e>traordinar% dili$ence in relation with Artic%e /064 4law of destination; as bolstered b% "ection /4 'O"A and Artic%e /011 4primac% of Ci#il Code on common carrier (2) he (common) carrier nor the ship ( pri#ate carrier ) shall not e
%ia%e for %oss or da,age ; arisin$ or resultin$ from& (a) Act, neglect, or default of the captain, mariner, pilot, or the ser#ants of the carrier in the na#i$ation or in the mana$ement of the ship/ () Hire, unless caused by the actual fault or pri#it% of the carrier / (c) +erils, dangers, and accidents of the sea or other na#i$able waters (e.$., ri#er )/ (d) Act of God/ (e) Act of war ,
Page|8 (f) Act of public enemies (e.$., pirates)/ (g) Arrest or restraint of princes, rulers, or people 4e#en not under
le$al process, or seiIure under le$al process/ (h) Juarantine restrictions/ (i) Act or omission of the shipper or owner of the $oods, his a$ent or representati#e; (<) StriBes or locBouts or stoppa$e or restraint of labor from whate#er cause, whether
partial
or general/ Pro#ided, hat
nothin$ herein contained shall be construed to relie#e a carrier from responsibility for the carrierKs own acts/ (;) iots and ci#il commotions/ (%) Sa#in$ or attemptin$ to sa#e life or propert% at sea/ )asta$e in bul$ or weight or any other loss or dama$e (,) arising from inherent (i.e., natural; intrinsic) defect, 0uality, or vice of the goods/ (n) 'nsuLcienc% of pacBin$/ (o) 'nsuLcienc% or inadeuac% of marBs/ (p) atent (hidden; concealed) defectsnot disco#erable b% due dili$ence/ and () An% other cause arising without the actual fault and pri#it% of the carrier and without the fault or ne$lect of the a$ents or ser#ants of the carrier,82 the burden of proof shall be on the person claimin$ the benet of this e>ception to show that neither the actual fault or privity of the carrier nor the fault or neglect of the agents or servants of the carrier contributed to the loss or damage& Note: Hor co,,on carrier8 'i.i% 'ode app%ies (4) :he shipper shall not e %ia%efor loss or dama$e sustained b% the carrier or the ship arisin$ from an% cause witho2t the act8
fa2%t8 or neg%ect of the shipper8 his agents8 or ser.ants (7) An% de.iation 4chan$e of established
property at sea O any “reasona%e” de.iation does not constit2te reach of this Act9contract of carriagesuch that carrier sha%% not e %ia%e for an% loss or dama$e resultin$ therefrom& PO9'E*E, howe#er, :hat if the de.iation is for the purpose of %oading cargo or 2n%oading cargo or passengers8 then it shall a pri,a facie 2nreasona%e de.iation (6) (I+PORTANT -threshold of liabilit% of carrier3 ): :he 4common carrier nor the ship 4pri#ate carrier shall not e %ia%e for any
%oss or da,age to goods in an a,o2nt e=ceeding >"B6CC per pac;age 4i.e., re$ardless of the actual amount of $oods, or in case of goods not shipped in pac;ages8 per c2sto,ary freight
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2nit 4e.$., per tonna$e, etc., or the eui#alent of that sum in other currenc% ( D"*SS& :he nat2re and .a%2e of s2ch goods ha#e been dec%ared y the shipper in the #9L efore ship,ent8 which declaration shall be pri,a facie e.idence 2t not
conc%2si.e on the carrier +% a$reement between the carrier, master, or agent of the carrier, and the shipper another ma>imum amount than that mentioned in this paragraph ma% be >ed +'Oimum shall not be less than the $ure abo#e named (i.e., not less than M5// DS dollars)& 'n no e#ent shall the carrier be liable for more than the amount of damage actuall% sustained 4b% loss
goods if the nat2re or .a%2e thereof has been ;nowing%y and fra2d2%ent%y ,isstated y the shipper in the +< (1) 'n case of $oods of an inDa,,a%e8 e=p%osi.e8 or dangero2s nat2re, captain or a$ent of the carrier who has not consented with ;now%edge of their nature and character, ma% at any ti,e efore discharge 4i.e., unloaded to its Philippine destination be %anded at any p%ace or destroyed or rendered innoc2o2s 4not dan$erous b% the carrier witho2t %iai%ity , instead, the shipper shall be %ia%e for a%% da,ages and e=penses direct%y or
indirect%y arising o2t of or res2%ting fro, s2ch ship,ent* 'f an% such $oods shipped with s2ch ;now%edge and consent 4of the captain
or rendered innoc2o2s b% the carrier without liabilit% on the part of the carrier, e=cept to genera% a.erageif an% 4is written in the +<; $eneral a#era$e refers to a#oidance of $oods from the ship for the benet of all.
A&0ER7
R&GHTS
A*,
&334*&T&ES
A*,
&*CREASE
7
RESP*S&+&'&T&ES A*, '&A+&'&T&ES Section 8. A carrier shall has the option 4e#en without the consent of shipper to wai.ein whole or in part all or an% of his rights and
i,,2nities8 or has option to increase an% of his responsii%ities and %iai%ities under this Act 7 PO9'E*E such wai.er or increase shall be e,odied9written in the #9L issued to the shipper (Note: :he carrier cannot decreaseresponsii%ities and %iai%ities as this
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is .oid under "ection 4 FG but s2
1) :he pro#isions of this Act shall not e app%ica%e to charter parties 4i.e., charter contract between owner of shipowner and the charterer ( 8O)*9*& 'f #9L are iss2ed in the case of a ship under charter part% 4i.e., +< issued b% shipowner to the charterer -e.$., charter part% is onl% time<#o%a$e charter3, the
shipowner and charterer shall
co,p%y with the pro#isions of this Act. Nothing in this Act prohiits the insertion in the +< of an% lawful pro#ision re$ardin$ genera%
a.erage SPEC&A' C*,&T&*S "ection 1* Notwithstanding
the
pro#isions
of
the preceding
sections ( includin$ Section ! -?3 )8 a carrier, captain or a$ent of the carrier, and a shipper shall, re$ardin$ transport of “partic2%ar” $oods,e at %ierty to enter into any agree,ent in any ter,s(/) as to the-increase
contrary to p2%ic po%icy , or (7) -increase
shall
ha#e
f2%%
%ega%
e?ect: PO9'E*E, :hat this section 4i.e., Section 6 shall not app%y to ordinary co,,ercia% ship,ents ,ade in the ordinary co2rse of trade+D: O" to other ship,ents4particular $oods where the character
or
condition
of
the
propert%
to
be
carried
or
the
circumstances, terms, and conditions under which the carria$e is to be performed are such as reasona%y to <2stify a specia% agree,ent
Section 9. :he carrier or a shipper are free to enter into any agree,ent , condition8 reser.ation8 or e=e,ption as to the responsibilit% and liabilit% of the carrier or the ship for the %oss or
da,age in connection with the c2stody and care and hand%ing of goods:#E3ORE%oadingand A3TER to the discharge from the ship
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Section . he provisions of this Act shall not a=ect the rights and obligations of the carrier under the provisions of the Shipping Act, >", or under the provisions of section ?@ to ?@>, inclusive, of the 'evised Statutes of the 2nited States, or of any amendments thereto/ 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&
T&T'E 2 Section ;. "othin$ contained in this Act shall be construed as permittin$ a common carrier by water to discriminate between competin$ shippers similarly
place
in time and
circumstances,
either (a) with respect to the right to demand and receive bills of lading subBect to the provisions of this Act/ or () when issuing such bills of lading, either in the surrender of any of the carriers rights and immunities or in the increase of any of the carriers responsibilities and liabilities pursuant to section ", itle I, of this Act or (c) in any other way prohibited by the Shipping Act, >", as amended&
Section 1<. Section @D of the Interstate Commerce Act is hereby amended by adding the following proviso at the end of paragraph ? thereof *+rovided, however, hat insofar as any bill of lading authoriEed hereunder relates to the carriage of goods by sea, such bill of lading shall be subBect to the provisions of the Carriage of Goods by Sea Act&*
Section 11. )here under the customs of an% trade the wei$ht of an% bulB car$o inserted in the bill of ladin$ is a wei$ht ascertained or accepted b% a third part% O:8* :8A" the carrier or the shipper, and the fact that the wei$ht is so ascertained or accepted is stated in the +<, then, notwithstandin$ an%thin$ in this Act, the +< shall not e
dee,ed to e pri,a facie e.idence against the carrier of the receipt of $oods of the weight so inserted in the +<, and the
acc2racy 4of the wei$ht of bulB car$o thereof at the time of shipment shall not e dee,ed to ha#e been g2aranteed y the shipper 4#iI., the wei$ht of bulB car$o determined b% ! rd part% is disputable b% carrier and shipper.
Section 12. #othing in this Act shall be construed as superseding any part of the Act entitled *An act relating to navigation of vessels, bills of
Page|12
lading, and to certain obligations, duties, and rights in connection with the carriage of property,* approved %ebruary F,>F, or of any other law which would be applicable in the absence of this Act, insofar as they relate to the duties, responsibilities, and liabilities of the ship or carrier prior to the time when the goods are loaded on or after the time they are discharged from the ship&
Section 1-. This Act sha%% app%y to all contracts for carriage of goods by sea to or from ports of the 2nited States in foreign trade& As used in this Act the term *2nited States* includes its districts, territories, and possessions Pro#ided, howe#er , hat the Phi%ippine
%egis%at2re ma% b% law e=c%2de its application to transportation to or from ports of the Philippine 'slands 4i.e., this is where Artic%e /064 is
,ade to app%y re$ardin$ law of destination. he term *forei$n trade* means the transportation of $oods between the ports of the Dnited States 4Philippines and ports of forei$n countries. #othing in this Act shall be held to apply to contracts for carriage of goods by sea between any port of the 2nited States or its possessions, and any other port of the 2nited States or its possession +rovided, however, hat any bill of lading or similar document of title which is evidence of a contract for the carriage of goods by sea between such ports, containing an epress statement that it shall be subBect to the provisions of this Act, shall be subBected hereto as fully as if subBect hereto as fully as if subBect hereto by the epress provisions of this Act +rovided, further, hat 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 2nited States, in foreign trade, shall contain a statement that it shall have e=ect subBect to the provisions of this Act&
Section 15. 2pon the certiHcation of the Secretary of Commerce that the foreign commerce of the 2nited States in its competition with that of foreign nations is preBudiced the provisions, or any of them, of itle I of this Act, or by the laws of any foreign country or countries relating to the carriage of goods by sea, the +resident of the 2nited States, may, from time to time, by proclamation, suspend any or all provisions of itle I of this Act for such periods of time or indeHnitely as may be designated in the proclamation& he +resident may at any time rescind such suspension of itle I hereof, and any provisions thereof which may have been suspended shall thereby be reinstated and again apply to
Page|13
contracts thereafter made for the carriage of goods by sea& Any proclamation of suspension or rescission of any such suspension shall ta$e e=ect on a date named therein, which date shall be not less than ten days from the issue of the proclamation& Any contract for the carriage of goods by sea, subBect to the provisions of this Act, e=ective during any period when title I hereof, or any part thereof, is suspended, shall be subBect to all provisions of law now or hereafter applicable to that part of itle I which may have thus been suspended&
Section 18. his Act shall ta$e e=ect ninety days after the date of its approval/ but nothing in this Act shall apply during a period not to eceed one year following its approval to any contract for the carriage of goods by sea, made before the date on which this Act is approved, nor to any bill of lading or similar document of title issued, whether before or after such date of approval in pursuance of any such contract as aforesaid&
Section 16. his Act may be cited as the *Carriage of Goods by Sea Act&*
C33E*TS 1. ritten e=tra>?dicia" de@and does *T T'' t!e r?nning of one/year prescripti#e period under CGSA (within which to le SuitNLE"": "2it ( action for dama$es ) is ro2ght
“within one year after de%i.ery of the goods” or “the date when the goods sho2%d ha.e een de%i.ered” 4to the person entitled for deli#er% under the contract of carria$e -holder of +< which could be shipper
notice of %oss or da,age8 either apparent or concea%ed 4not apparent, is not gi.en as pro#ided for in this section,that fact shall not a?ect or pre<2dice the right of the "&IPPER (or consi$nee) to ring s2it 4action for dama$es within one year
after the de%i.ery of the goods or the date when the goods sho2%d ha.e een de%i.ered 4to the person entitled to deli#er% under contract of carria$e -shipper
Page|14
7acts Goods were transported from other country with +hilippines as destination& he goods were recei.ed by the consignee on
!ece,er /F8 /H0/* he consignee asseverates that when he made e=tra<2dicia% de,and on +ay 78 /H05 rec$oned from the time he recei.ed the goods on !ece,er /F8 /H0/8 it was sti%%
within the ;year prescriptive period under COGSA and hence, the ;year prescriptive period is to%%ed9s2spended and has to start
anew a%so on +ay 78 /H05 pursuant to Artic%e //66 N'' 3 so that when action for da,ages was -%ed with 'C ( =udicial demand) on 2ne //8 /H048 it is still within the ;year prescriptive period (i.e., 2a% , 10 to @une 11, 10!)& ( *ote Artic%e //66
N'': F:he prescription of actions is interr2pted9to%%ed when the% are -%ed efore the co2rt 4=udicial demand 8 or when there is a written e=tra<2dicia% de,and b% the obli$ee, or when there is an% written ac;now%edg,ent of o%igation b% the obli$or 7 which interruptiontra=udicial<=udicial demand ) &ss?e hether or not the oneyear prescripti.e period under
"ection 4 Par 1 5nd Paragraph 'O"A within which to -%e s2it9action for %oss9da,ages against the carrier9ship 3 is s2
specia%%y -=ed under COGSA& he reason for the strict oser.ance of the one;year prescriptive period is to decide actions for %oss9da,ages of goods a=ecting transportation of goods by sea in as short a ti,e as possi%e (Note: 2dicia% demand tolls the running of the one;year prescriptive period under COGSA ) (a) 5C5+IO# he oneyear prescripti.e period under Section F +ar " COGSA can be s2spended or e=tended by the
e=press agree,ent of parties (Dni#ersal Shippin$ ines, 'nc. #s. 'ntermediate Appellate Court, G "o. 15, @ul% !1, 100/; p. 1)
Page|15
2. he oneyear prescripti.e period under Section F +ar " @nd +aragraph of COGSA given to shipper within which to -%e
s2it9action
against
shipper9consignee
carrier9ship
2t
3
a%so
not
on%y
against
app%ies ins2rer
to of
shipper9consignee who becomes subrogee of the rights of the insured
shipper9consignee
after
the
insurer
paid
the
shipper9consignee (Hilipino 2erchants 'nsurance Compan%, 'nc. #s. Court of Hirst 'nstance of 2anila, G "o. 751/, October 1, 10?6; p. 15)
Reason Otherwise, if the one;year prescriptive period under COGSA does not apply against insurers, then what COGSA intends
to prohiit after the lapse of the one;year prescriptive period can e indirect%y a.oided by way of the shipper9consignee si,p%y -%ing a c%ai, against the ins2rer e.en after the %apse of the said oneyear prescripti.e period8 and s2se2ent%y for the ins2rer to -%e action against the carrier 3 in which case, ;year limitation under COGSA will be practically useless&
Opinion: 4ence, the insurer must be on the loo$out that the insured shipper9consignee must claim the insurance proceeds well within the ;year prescriptive period of COGSA 3 so that after the insurer paid and now as subrogee, it can also Hle action against the carrier within the ;year prescriptive period under COGSA
Note: :his one7%ear prescripti#e period app%ies to shipper, insurer ( 2t a%so to consignee or any %ega% ho%der of the i%% of
%ading 4+el$ian O#erseas Charterin$ and Shippin$ #s. Philippine Hirst 'nsurance Co., 'nc., G "o. 1!1!!, @une 5, //; p. 6
(a)
he oneyear prescripti.e period under COGSA applies
in fa.or of carrier9ship as against the shipper 3 but does not a%so app%y in fa.or of the ins2rer as against the ins2redshipper9consignee (2a%er Steel Pipe Corporation #s. Court of Appeals, G "o. 1/5/, @une 10, 100; p. 1? ) 7acts Shipper transported his goods with carrier& he goods were insured by shipper with insurer& hen goods reached 4ong$ong,
the
goods
were
damaged& he
shipper;insured
claimed the insurance against the insurer after the lapse of the ;year prescriptive period under COGSA& #ow, the insurer refused to pay on ground that the shipper claimed the insurance after the ;year prescriptive period under COGSA& he reason
Page|16
given by the insurer is that it would be unfair for the insurer to pay the insured shipper after the ;year prescriptive period already lapsed, and render the insurer incapable of claiming against the carrier since pursuant to the case of Hilipino 2erchants 'nsurance Compan%, 'nc. #s. Court of Hirst 'nstance of 2anila 4supra, the 17%ear prescripti#e period under COGSA not onl% applies a$ainst the shipper but also a$ainst the insurer. &ss?e *o. 1 Is the insurer correctJ He"d #O& hile it is true that the ;year prescriptive period under COGSA applies not only against the shipper9consignee
2t
a%so
against the
insurer,
nevertheless,
the
;year
prescriptive period under COGSA does not apply in fa.or of the insurer& Reason: he asis of the action of the shipper against the insurer is not 2nder 'O"A but rather 2nder the
pro.isions of the Phi%ippine Ins2rance 'ode in re%ation to N'' which prescriptive period of action under Insurance Code is longer than the ;year prescriptive period under COGSA &ss?e *o. 2 hat is then the prescriptive period for the insured;shipper to Hle action against the insurer based on the insuranceJ He"d K years& he insurance policy being a written contract8 Article ?? #CC then applies which provides that written contract prescribed in K years from the cause of action accrues -. he one;year prescriptive period under COGSA applies to
“%oss9da,age”
of
goods
(i.e., physica% disappearance
or
physica% deterioration of the $oods) 3 and does not app%y to “,isde%i.ery” of goods ( An$ #s, Compania2aritima, G "o. 7 !/?/5, Eecember 6, 10?; p. ) 7acts Lau Lue 8an$ in 4ong$ong agreed to se%% goods to eves in .anila&
Lau
Lue
8an$
transacted
with
o$yo
8oe$i
:td&
(manufacturer ) regarding the goods needed by eves& o$yo 8oe$i
%oaded the goods with the carrier with .anila as destination, and the carrier iss2ed #9L where written thereon is o$yo 8oe$i as
shipper* And then o$yo 8oe$i indorsed the #9L to Lau Lue 8an$, hence, such #9L was s2rrendered y o$yo 8oe$i to Lau Lue 8an$& hen Lau Lue 8an$ assigned the #9L to the Complainant in .anila thereby Lau Lue 8an$ s2rrendered possession o.er #9L to the Complainant& hen the good reached .anila, the carrier de%i.ered
the
goods
to
Te.es
which
delivery
sho2%d
e
to
the
'o,p%ainant eing the present ho%der of the #9L ( #iI., there is
Page|17
“,isde%i.ery” of b% carrier $oods to :e#es )8 this pursuant to the terms in the 89: itself that the carrier shall deliver the goods to the
ho%der of the #9L ( which in this case, the Complainant )* he Complainant Hled action against the carrier one year after the
,isde%i.ery of the goods to Te.es* he carrier in its Answer countered that the action -%ed by the Complainant a%ready
prescried as the /year prescripti.e period 2nder 'O"A a%ready %apsed &ss?e *o. 1 Is the carrier correct that the ;year prescriptive period already lapsedJ He"d #O& he carrier co2%d ha.e een correct that the ;year prescriptive period under COGSA already epired only when the Complainant Hled action for !A+AE"9LO"" of the goods pursuant to "ec 4 Par 1 'O"A & 8ut then, the asis of the
action of the Complainant is not ao2t da,age9%oss of goods8 but rather “+I"!ELIJER$”
of goods 3 hence, the ;year
prescriptive period under COGSA does not app%y eca2se the
goods are not da,aged9%oss 2t rather the goods were ,ere%y
,isde%i.ered*
“!a,age9%oss”
referred
to
under
Section F (") COGSA refers to P&$"I'AL deterioration of the goods (dama$e) or P&$"I'AL disappearance of the goods (i.e., loss) 3 and not to mere ,isde%i.ery &ss?e *o. 2 Khat prescripti.e period therefore app"ies in t!e
case at bar He"d +rescriptive period under Artic%e //77 N''8 which is /C years fro, ca2se of action accr2ed for written contract 3 which in the case at bar, the #9L* he cause of action of the complainant accr2ed from the time of misdelivery& 5. Section F(") of COGSA only refers to $ physica% % loss9damage 3 and
not to damage9loss in the "ega"Bgenera" sense (e*g*8 depreciation of the “sa%e9,ar;et .a%2e” of $oods is loss
“physica%” loss
deteriorated -less prot3)& 4ence, the consignee in %rance only paid ha%f of
the
.a%2e of the goods (i.e., not due to
Page|18
%oss9da,aged on the “physica% condition” of the goods8 but because of the “sa%e9,ar;et .a%2e”)& 8ecause the carrier refused to pay the shipper the other half of the value of the goods, the shipper Hled action against the carrier& he carrier countered that the /year prescripti.e period 2nder 'O"A to -%e action for
%oss9da,age of goods a%ready %apsed from the time the goods were received by the consignee in %rance& &ss?e *o. 1 In the case at bar, is %oss or da,age of the goods
ased on their “sa%e9,ar;et .a%2e” 3 is within the contemplation of Section F(") COGSAJ He"d #O& 8ecause what is contemplated under Section F(") COGSA only refers to “P&$"I'AL %oss9da,age” 3 and not loss9damage based on their sa%e9,ar;et .a%2e &ss?e *o. 2 hat is then the applicable prescriptive periodJ He"d K years& he contract of carriage between the carrier and shipper is a written contract y way of #9L8 and under Article ?? #CC ritten contract prescribes in K years from the time the cause of action accrues Persona% oser.ation: 4nder Artic"e 198-:he %aw of the
co2ntry to which the goods are to e transported shall go.ern the %iai%ity of the common carrier for their loss, destruction or deterioration 4i.e., law of destination -Hrance3& If that is the case, then why the Court attempted to apply +hilippine law as to the liability of the carrierJ Reason: he basis of the cause of action of the shipper is not based on #CC governing liability of common carriers from Article !F@ to !"" as there is no damage9loss of goods caused by the neg%igence in transportation by the common carrier 2t ,ere%y ,isde%i.ery8 neither under COGSA as loss9damage of goods referred to under COGSA refers to physica%
%oss9da,age and not to ,isde%i.ery HE*CE hat applies is sti%% the N'' 2t partic2%ar%y O#LI'ON 8. $S!ippers 'oad and Co?nt% (e>plained; 'nternational Container :erminal Ser#ices, 'nc. #s. Prudential Guarantee and Assurance Co., 'nc., G 1!51, Eecember ?, 1000; p. 5 ) 7acts Carrier loaded goods contained in a container for Shipper from California bound to .anila 3 under “shippers %oad and
co2nt*” he Carrier iss2ed #9L written thereon Consignee as consignee* he Consignee ins2red the goods with Insurer& hen the goods reached +ani%a8 the Carrier discharged the goods to the Arrastre Operator for safe;eeping* he 8ro$er withdrew the
Page|19
goods from the Arrastre Operator and de%i.ered to goods to the Consignee& hen the goods reached the Consignee, the latter found that there are physica% %osses of goods* he Insurer paid the
Consignee,
then
the
Insurer
as
s2rogee
de,anded
pay,ent from the Arrastre Operator, but the Arrastre Operator refused to pay the Insurer& &ss?e Is the arrastre operator %ia%e for the %ossesM He"d #O& he goods were loaded by the Shipper under “"hippers
%oad and co2nt”8 i.e., the Shipper is so%e%y responsi%e for the %oading of the container (containin$ the $oods) into the .esse% of the Carrier, so that the Carrier is not in pri.y or re2ired to
inspect9.erify as to the contents or 2antity of the goods as are contained inside the container* hen the goods reached .anila, the Carrier discharged the goods to the Arrastre, the d2ty of the Arrastre is only to ta;e good care of the goods “as
recei.ed” from the Carrier, and to t2rn o.er the good to the person entitled to receive (in this case, the +roBer withdrew the $oods from the Arrastre and then deli#ered the $oods to the Consi$nee)& he goods being transported under “shippers %oad
and co2nt8 <2st %i;e the carrier8 the Arrastre is not a%so re2ired
to
.erify
the
contents
of
the container “as
recei.ed” y it fro, the carrier and compare them with the 89: 3 #iI., the Arrastre is on%y re2ired to de%i.er the goods to the Consignee (throu$h +roBer ) “as recei.ed” from the Carrier& In the case at bar, the loading being as “shippers %oad and
co2nt8” for as long as the Arrastre a%e to pro.e that it delivered the goods to the Consignee (throu$h +roBer ) *as recei.ed from the Carrier which in this case such burden of proof was proven by the Arrastre thereby ma$ing the Arrastre not %ia%e for the %oss of
the goods (a) Nat2re of ser.ice of Arrastre Operator ( 'nternational Container :erminal Ser#ices, 'nc. #s. Prudential Guarantee and Assurance Co., 'nc., G 1!51, Eecember ?, 1000; p. 5 ) he %ega% re%ationship between arrastre operator and
consignee ( person who has ri$ht to recei#e the $oods from the carrier
wareho2se,an
and
depositor*
'n
case
of
%oss9da,age of goods8 the 2rden is on the arrastre
Page|20
operator to pro.e that
it
co,p%ied with its
accordance with %aw* Note: Arrastre operator is deemed as Mcommon
d2ty
in
carrierN
(Philippine Hirst 'nsurance Co. #s. )allemPhils. Shippin$ 'nc. G "o. 1656, 2arch 6, //0 ) 3 hence, pursuant to Article !FF #CC, it is bound to observe etraordinary diligence in the vigilance over the goods while in its possession until it delivery to the shipper9consignee& 6. $PacDage 'i@itation% of carriers "iabi"ity for "ossBda@age of
goods (Section -53 COGSA ) "ection 76G 'O"A -threshold
>"B6CC per pac;age 4i.e., re$ardless of the actual amount of $oods, or in case of goods not shipped in pac;ages8 per
c2sto,ary freight 2nit 4e.$., per tonna$e, etc., or the eui#alent of that sum in other currenc% ( D"*SS& :he nat2re and .a%2e of
s2ch goods ha#e been dec%ared y the shipper in the #9L efore
ship,ent8
which
declaration
shall
be pri,a
e.idence 2t not conc%2si.e on the carrier (a) #e%gian O.erseas 'hartering and
facie
"hipping
.s*
Phi%ippine 3irst Ins2rance 'o*8 Inc*8 R No* /74/448 2ne 68 5CC5 p* 551 7acts @?@ coils ($oods) were received by Carrier from Germany to be transported to .anila port& In the #9L8 it is stip2%ated that the liability of the Carrier is %i,ited to >"B6CC per pac;age.
Annotated in the #9L is about the statements in the Letter of 'redit ("B6CC per pac;age as
written in the #9L* hen the goods reached .anila port, four coils were physica%%y da,aged* he Carrier invo$ed 'O"A
"ection 7 (6) which provides FCarrier shall not e %ia%e eyond >"B6CC “per pac;age” 2n%ess the shipper dec%ares the .a%2e of the $oods writtenon the #9L. 4owever, the shipper
invo$ed Artic%e
/07H
N''
which
provides,
FA
stipulation is bindin$ when the common carrierKs liabilit% is limited to the “JAL>E of the goods” as KRITTEN on the #9L
2n%ess the shipper or owner dec%ares a greater .a%2e written in the #9L
Page|21
&ss?e In contract of carriage of goods, which law that pri,ari%y go.erns the rights and obligations of common carriersJ He"d 'i.i% 'ode* Artic%e /011 N'' provides, MIn a%% ,atters not reg2%ated b% this Code 4"CC, the ri$hts and obli$ations of common carriers shall be go.erned y the Code of Commerce and b% special laws 4e.$., COGSAN& 4ence, Code of Commerce and b% special laws 4e.$., COGSA are only s2pp%etory in the
asence of provision of the #CC &ss?e In the case at ar8 what go.erns the contract of carriage of the parties 3 is it Artic%e /07H N'' or special law particularly 'O"A "ection 7 (6)M He"d 'O"A "ection 7 (6)*Reason: Article !?> #CC does
not app%y because there is no pro.ision therein about %i,iting the %iai%ity of co,,on carrier “PER PA'AE” @ instead, what Article !?> provides is the limitation of liability of common carrier as to “JAL>E of the goods” written on the 89: (i.e., NOT limitation of liabilit% PER PA'AE)& #ow, under COGSA Section ? (D), it is "PE'I3I'ALL$ PROJI!E! therein that the common carrier can limit its liability as written in the 89: only up to >"B6CC per pac;age& 4ence, applying Article !"" #CC, MIn a%% ,atters not reg2%ated b% this Code 4"CC, the ri$hts and obli$ations of common carriers shall be go.erned y the Code of Commerce and b% specia% %aws which in this case
the %i,itation of %iai%ity PER PA'AE is "PE'I3I'ALL$ pro.ided 2nder 'O"A "ection 7 (6) rather than the ENERAL pro.ision of Artic%e /07H N''* &ss?e COGSA Section ? (D) which provides FCarrier shall not e %ia%e eyond >"B6CC per pac;age >NLE"" the shipper !E'LARE" T&E JAL>E of the $oods written on the +<. Shipper alleged, granting that COGSA Section ? (D) applies, the liability of the common carrier is not %i,ited to >"B6CC per
pac;age because in the 89:, therein ANNOTATE! about the statements in the Letter of 'redit (E of the goods PER +ETRI' TON which value of the goods is way
higher
than
annotation
>"B6CC
of L9' on
PER
PA'AE8
the
#9L8
which
by
such
in e=ect technically a
!E'LARATION O3 T&E JAL>E of the goods per ,etric in the #9L 3 hence, limited liability to 2SDKK per pac$age under COGSA
Page|22
Section ? (D) does not app%y* he 0uestion, is the Shipper correctJ He"d #O& Such annotation of the L9' on the #9L stating the
.a%2e of the goods per ,etric ton is NOT A !E'LARATION O3 T&E JAL>E of goods in the #9L re0uired under 'O"A "ection 7 (6)* he annotation of :9C on the 89: was made merely for the con.enience etween the shipper and the
an; processing the L9' ( the banB bein$ the consi$nee and the shipper bein$ merel% the notif% part% ( such that the shipper cannot withdraw the $oods he imported without pa%in$ rst the banB that $ranted the
)* In other words, the L9' indicating the .a%2e of the shipper goods per ,etric ton e.en if annotated on the #9L is separate and distinct fro, the #9L and has nothing to do etween the contract of carriage etween the co,,on carrier and the shipper &ss?e he 89: provides that the liability of the common carrier is limited only up to 2SDKK per pac;age* Suppose, the @?@ coils were contained in 5 containers8 should such 5 containers e
dee,ed as 5 pac;ages so that the liability of the common carrier would only be >"B/8CCCM He"d #O& MPer pacBa$eN is not to be construed y pac;age or
y container or y crate or si,i%ar deno,ination 3 instead, it is to be construed per 2nit or per good* 4ence, there being
7 coi%s da,aged8 the common carrier is liable to >"B5CCC (i.e., DSM5// > units) () Eastern "hipping Lines Inc* .s* #PI9+" Ins2rance
'orp*8 R /F5F178 an2ary /58 5C/6 ( incorporation
e %ia%e eyond >"B6CC per pac;age >NLE"" the shipper !E'LARE" T&E JAL>E of the $oods written on the +<. &ss?e Is the incorporation9insertion of the invoice itself ( written thereon the #alue of the $oods) with the 89: complies with the declaration of value under COGSA Section D (D) ; such that the limitation of liability of carrier for 2SDKK per pac$age does not applyJ He"d L5S& COGSA Section ? (D) does not re0uire that the value of the goods must be written on the very 89: itself& Compliance
Page|23
on COGSA Section ? (D) can be attained by incorporating the
in.oice8 y way of reference to the #9L provided such invoice contains the value of the goods& he value of the goods being written on the invoice, and incorporated with the 89:, in e=ect, the shipper informed the carrier about the value of the goods, and being informed, the carrier can charge the freightage in accordance with the value of the goods& Note: In the same case, the SC ruled that mere insertion in the 89: about the in.oice n2,er does not satisfy the re0uirement of COGSA Section ? (D) about the declaration of the value of the goods in the 89:, hence, the 2SDKK per pac$age limited liability applies in favor of the carrier& Reason: .ere insertion of the invoice number does not declare the value of the goods Note: Incorporation9insertion of :9C with the 89: is
not
declaration of value of goods in the 89: 9. $PacDage 'i@itation% of carriers "iabi"ity for "ossBda@age of
goods ?nder Section 5 8F CGSA ( Philam 'nsurance Compn%, 'nc. #s. 8eun$7A Shippin$ Corp., G 1?/1, @ul% !, /1 ) 7acts Shipper shipped > pallets of @KK rolls of goods (contained in container ) with Carrier from South Porea bound to .anila with Consignee as consignee, with Insurer as insurer& A 89: was issued, but the Shipper did not declare therein the value of the goods& 1uring the voyage, the goods sustained damaged due to seawater& It also found out that there is damage to the container supplied by the Shipper to the Carrier& he Consignee received the goods on Qanuary D, @KK with damage of ! pallets& Consignee claimed damages against Carrier, but the latter refused, hence, Consignee claimed the insurance proceeds from the Insurer& #ow, the Insurer as subrogee, Hled against the Carrier within one year from the time the Consignee received the goods on Qanuary D, @KK& &ss?e *o. 1 hether or not the goods were damaged during the possession of the CarrierJ He"d L5S& 8ecause it is proven that the goods were damaged during voyage &ss?e *o. 2 hat degree of diligence re0uired of Carrier as common carrier 3 is it due diligence under section F () COGSA, or etraordinary diligence under Article !FF #CCJ He"d 5traordinary diligence& Article !"" #CC provides that in all matters not regulated by the #CC, then Code of Commerce and special laws (such as COGSA) shall apply by suppletory, and also
Page|24
considering that +hilippines if the destination, then Article !DF provides, the liability of common carrier shall be governed by the law of destination, which in this case, +hilippines& #ow, the diligence re0uired
of
common
carrier
in
transportation
of
goods
is
etraordinary diligence ( Article 1!! "CC)& &ss?e *o. - Is the Carrier could still be liable for damages even if the container containing the good supplied by Shipper himself is defective that could also attribute to the seawater getting into the container and damaged the goodsJ He"d L5S& Article !?@ #CC *#en if the dama$e< lossof the $oods should be caused b% the character of the $oods, or the fa2%ty nature of the pac;ing or of the containers8 the co,,on carrier must e=ercise d2e di%igence to pre.ent or at %east %essen the
da,age9%oss* In the case at bar, the Carrier was not also able to prove that it eercised due diligence for prevent9lessen damage on the goods &ss?e *o. 5 1id the Insurer Hled the action in court within the one; year prescriptive period under Section F (") COGSAJ He"d L5S (see the 3acts) &ss?e *o.8 Suppose the Consignee did not comply with the written notice in accordance with Section F (") COGSA, can the Insurer still Hle action against carrierJ He"d L5S& +rovided, the Insurer should Hle action with court within one year from the time the Consignee received the goods on Qanuary D, @KK& Reason: Section ! 46 COGSA& If a written notice
of
%oss
or
da,age8either
apparent
or
concea%ed 4not
apparent, is not gi.en as pro#ided for in this section,that fact shall not a?ect or pre<2dice the right of the "&IPPER (or consi$nee) to ring s2it 4action for dama$es within one year
after the de%i.ery of the goods or the date when the goods sho2%d ha.e een de%i.ered 4to the person entitled to deli#er% under contract of carria$e -shipper
RE'EIPT of the goods if the damage is apparent from outside ; O45'IS5 If the damage cannot e ascertained fro,
o2tside the pac;age8 then claim must be made within 57 ho2r from the time of the opening of the pac;age* hile "ection 4 (1) 'O"A provides that an action shall be brought
Page|25
within / year fro, de%i.ery of the goods* Now8 the 2estion is8 which sha%% go.ernM Anser Section F (") COGSA& Reason: In the Statutory Construction, when two %aws are conDicting and cannot e
har,onied8 then specia% %aw sha%% pre.ai% o.er the genera% %aw* COGSA is a specia% law and Code of Commerce is a genera% law (Note: 'n this same case of Philam 'nsurance Compn%, 'nc. #s. 8eun$7A Shippin$ Corp., G 1?/1, @ul% !, /1, the issue was suarel% raised, i.e., which shall $o#ern, is it Article !66 Code of Commerce or Section ! 46 COGSA. 8ere, the Supreme Court did not suarel% addressed the issue but at an% rate, it applied COGSA ) &ss?e *o.6 If the Insurer Hled the action within one year from the time the Consignee received the goods on Qanuary D, @KK 3 then, the 0uestion is, what is the basis of amount of liability of the CarrierJ He"d M:imited +ac$age :iabilityN for 2SDKK per pac$age pursuant Section ? (D) COGSA& Reason: he Shipper did not declare the value of the goods in the 89: &ss?e *o. 9 If the M:imited +ac$age :iabilityN for 2SDKK per pac$age pursuant Section ? (D) COGSA applies 3 then, how much is the Carrier liableJ He"d here being ! pallets loss9damaged, then ! pallets multiplied with 2SDKK, it would be 2S,DKK
