COGSA

COGSA C ARRIAGE OF GOODS BY SEA ACT

(COMMONWEALTH ACT NO. 65; P UBLIC CONGRESS)

ACT NO. 521, 74 TH US

WHAT HAT SEA ACT!

CARRIAGE

IS THE PRINCIPAL PURPOSE OF THE

OF

GOODS

B 

 The principal purpose of the COGSA is to bring about uniformity to ocea ocean n bill bills s of ladi lading ng and and to give give eec eectt to the the Brus Brusse sels ls Treaty eaty (Preamble Common!ealth Act" #o" $%&" HAT WHAT

CONTRACTS ARE CO"ERED B THE B  THE COGSA!

COGSA is applicable to all contracts for the carriage of goods by sea to and from Philippine ports in foreign trade (Section '&" COGSA does not apply to purely domestic transport" #OTS)  To  To *no! !hether !hich la! is applicable to a contract for the carriage of goods by sea) a" +ist +istin ingu guis ish h !het !hethe herr the the car carrier rier is a comm common on car carrier rier or private carrier, b" -here -here the the vesse vessell is going going)) '" .rom the the Ph Phil ilip ippi pine nes s to a for foreign eign coun countr try y) appl apply y la!s la!s of such such foreig foreign n countr country y (Artic (Article le '/ '/%0 %0 Civil Civil Code&, 1" .rom rom a foreign foreign country country to the Philippi Philippines) nes) •

2f common carrier)

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prim primar aril ily y gove govern rned ed by by the the Civi Civill Code Code then then COGSA COGSA if applic applicabl able e (e"g (e"g" " for foreig eign n ttrad rade& e& Code of of Co Commerce

•

2f private carrier)

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COGSA 4more sp speci5c Code of of Co Commerce Civil Code (provisions not dealing common carriers e"g" torts contracts&

!ith

IN

WHAT SITUATIONS DOES COGSA PRIMARIL  APPL !

-here the parties e6pressly stipulate that COGSA shall govern their respective rights and obligations" CAN COGSA

APPL  TO DOMESTIC TRADE!

Generally no unless the parties agree other!ise" WHAT PASSENGERS!

APPLICATION

DOES 

COGSA

HA"E

IN

CARRIAGE

OF

#one COGSA applies only to carriage of goods" PRESCRIPTI"E PERIOD UNDER SECTION #

(6)!

 The carrier and the agent shall be discharged from liability in respect 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 goods should 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 no delivery at all !as made by the carrier of the goods because the same had perished gone out of commerce or disappeared in such a !ay that their e6istence is un*no!n or they cannot be recovered" 8ence in case of misdelivery (delivery to !rong persons& or conversion of the goods the rules on prescription found in the Civil Code shall apply that is '9 years for contracts, : years for tortious obligations" IS

THE

PRESCRIPTI"E PERIOD UNDER THE 

COGSA

INTERRUPTED

FROM 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 special prescriptive period uniform !orld!ide"

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 the damage occurred" #OTS) 3

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3

The shipper consignee or legal holder of a bill of lading may invo*e the prescriptive period although the proviso in Section 0 ($& gives the impression that it is the shipper alone !ho can invo*e the same" The prescriptive period does not apply to the action by an insurer as subrogee of the consignee" Stipulation in a bill limiting the carrier;s liability contrary to Section 0 (<& is void e6ample) provision in the bill e6cepting the o!ner from liability for loss or damage of cargo unless a !ritten notice thereof  !as given to the carrier !ithin 09 days" Such provision is contrary to the provision of the COGSA since Section 0 provides that even if a notice of loss or damage is not given as re=uired that fact shall not pre>udice the right of the shipper to bring a suit !ithin ' year after delivery of the goods" #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 receipt 2n case of damage of goods 4 protest !ithin / days from receipt 2n case of delay 4 protest !ithin ': days from receipt" 3

.ailure to comply !ith the 03day notice re=uirement under the COGSA does not aect the right of the ship o!ner to bring action provided he brings the same !ithin ' year"

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This must be distinguished from the notice re=uirement in the -A?SA- Convention and Code of Commerce !here notice re=uirement is a condition precedent for the right of action against the ship o!ner to accrue" Amount recoverable in case of loss) @%99"99 per pac*age even if  not stipulated" The plainti cannot dispute said limitation on the ground that it !as not freely and fairly agreed upon or that it is against public policy because the la! itself provides for said limitation, thus the same is deemed read into their contract" Pac*age here means individual pac*aging of the goods (does not cover one container van" Parties may agree to an amount of liability less than %99"99 under Section : (%&" By providing that @%99"99 is the ma6imum liability the la! does not disallo! an agreement for liability at a lesser amount" 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 the carrier master or agent of the carrier to the shipper shall if the shipper so demands be a DshippedD bill of lading Provided That if the shipper shall have previously ta*en up any document of title to such goods he shall surrender the same as against the issue of the DshippedD bill of lading but at the option of the carrier such document of 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 !hich the goods have been shipped and the date or dates of shipment and !hen so noted the same shall for the purpose of this section be deemed 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 aect the rights and obligations 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 in force relating to the limitation of the liability of the o!ners of seagoing vessels (Section <&"

MA 

THE

COMMON

CARRIER

DISCRIMINATE

BETWEEN

COMPETITING

SHIPPERS!

#othing contained in this Act shall be construed as permitting a common carrier by !ater to discriminate bet!een competing shippers similarly place in time and circumstances either (a& !ith respect to the right 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 surrender of any of the carrierFs rights and immunities or in the increase of any of  the carrierFs responsibilities and liabilities pursuant to section $ title 2 of this Act or (c& in any other !ay prohibited by the Shipping Act ''$ s amended (Section &" WHEN FACIE

IS THE WEIGHT STATED IN THE BILL OF LADING NOT A

PRIMA

E"IDENCE OF ITS ACCURAC  AGAINST THE CARRIER NOR DEEMED TO

BE 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 accepted by a third party other than the carrier or the shipper and the fact that the !eight is so ascertained or accepted is stated in the bill of lading then not!ithstanding any thing in this Act the bill of lading shall not be deemed to be prima facie evidence against the carrier of the receipt of goods of the !eight so inserted in the bill of lading and the accuracy 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 sea to or from ports of the Enited States in foreign trade" As used in this Act the term DEnited StatesD includes its districts territories and possessions) Provided ho!ever That the Philippine legislature may by la! e6clude its application to transportation to or from ports of the Philippine 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 for carriage of goods by sea bet!een any port of the Enited States or its possessions 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 sea bet!een such ports containing an e6press statement that it shall be sub>ect to the provisions of this Act shall be sub>ected hereto as fully as if sub>ect hereto as fully as if sub>ect hereto by the e6press

provisions of this Act) Provided further That every bill of lading or similar document of title !hich is evidence of a contract for the carriage of goods by sea from ports of the Enited States in foreign trade shall contain a statement that it shall have eect sub>ect to the provisions of this Act (section '0&"

WHEN MA  THE PRO"ISIONS OF COGSA BE SUSPENDED!

Epon the certi5cation of the Secretary of Commerce that the foreign 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 to the carriage of goods by sea the President of the Enited States may from 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 rescind such suspension of Title 2 hereof and any provisions thereof !hich may have been suspended shall thereby be reinstated and again apply to 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 !hich date shall be not less than ten days from the issue of the proclamation" Any contract for the carriage of goods by sea sub>ect to the provisions of this Act eective during any period !hen title 2 hereof or any part thereof is suspended shall be sub>ect to all provisions of la! no! or hereafter 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 carriage relieving the carrier or the ship from liability for loss or damage to or in connection !ith the goods arising from negligence fault or failure in the duties and obligations provided in this section or lessening such liability other!ise than as provided in this Act shall be null and void and of no eect" A bene5t of insurance in favor of the carrier or similar clause shall be deemed to be a clause relieving the carrier from liability (#o" < Section 0&" RIGHTS

AND IMMUNITIES*

CARRIER AND THE SHIP NOT LIABLE WHEN*

'" #either the carrier nor the ship shall be liable for loss or damage arising or resulting from unsea!orthiness unless caused by !ant of due diligence on the part of the carrier to ma*e the ship sea!orthy and to secure that the ship is properly manned e=uipped and supplied and to ma*e to the holds refrigerating and cool chambers and all other parts of the ship in !hich goods are carried 5t and safe for their reception carriage and preservation in accordance !ith the provisions of paragraph ('& of section 0" -henever loss or damage has resulted from unsea!orthiness the burden of proving the e6ercise of due diligence shall be on the carrier or other persons claiming e6emption 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 the servants of the carrier in the navigation or in the management of the ship, 1" .ire unless caused by the actual fault or privity of the carrier, 0" Perils dangers and accidents of the sea or other navigable !aters, :" Act of God, %" Act of !ar $" Act of public enemies, /" Arrest or restraint of princes rulers or people or seiHure under legal process, <" Iuarantine restrictions, " Act or omission of the shipper or o!ner of the goods his agent or representative, '9"Stri*es or loc*outs or stoppage or restraint of labor from !hatever cause !hether partial or general, Provided That nothing herein contained shall be construed to relieve a carrier from responsibility for the carrierFs o!n acts, ''"?iots and civil commotions, '1"Saving or attempting to save life or property at sea, '0"-astage in bul* or !eight or any other loss or damage arising from inherent defect =uality or vice of the goods, ':"2nsuJciency of pac*ing, '%"2nsuJciency of inade=uacy of mar*s, '$"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

or servants of the carrier but the burden of proof shall be on the person claiming the bene5t of this e6ception to sho! 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"

0" Any deviation in saving or attempting to save life or property at sea or any reasonable deviation shall not be deemed to be an infringement or breach of this Act or of the contract of carriage and the carrier shall not be liable for any loss or damage resulting therefrom) Provided ho!ever That if the deviation is for the purpose of loading cargo or unloading cargo or passengers it shall prima facie be regarded as unreasonable (Section :&" WHAT

ARE THE LOSSES OR DAMAGES FOR WHICH THE SHIPPER SHALL

NOT BE LIABLE!

 The shipper shall not be responsible for loss or damage sustained by the carrier or the ship arising from any cause !ithout the act fault or 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 the transportation of goods in an amount e6ceeding @$99 per pac*age la!ful money of the Enited States or in case of goods not shipped in pac*ages per customary freight unit or the e=uivalent of that sum in other currency unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of  lading" This declaration if embodied in the bill of lading shall be prima facie evidence but shall not be conclusive on the carrier" By agreement bet!een the carrier master or agent of the carrier and the shipper another ma6imum amount than that mentioned in this paragraph may be 56ed) Provided That such ma6imum shall not be less than the 5gure above named" 2n no event shall the carrier be liable for more than the amount of damage actually sustained" #either the carrier nor the ship shall be responsible in any event for loss or damage to or in connection !ith the transportation of the goods if the nature or value thereof has been *no!ingly and

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 the shipment !hereof the carrier master or agent of the carrier has not consented !ith *no!ledge of their nature and character may at any time before discharge be landed at any place or destroyed or rendered innocuous by the carrier !ithout compensation and the shipper of  such goods shall be liable for all damages and e6penses directly or indirectly arising out of or resulting from such shipment" 2f any such goods shipped !ith such *no!ledge and consent shall become a danger to the ship or cargo they may in li*e manner be landed at any place or destroyed or rendered innocuous by the carrier !ithout liability on the part of the carrier e6cept to general average if any (Section : #o" $&" SURRENDER OF RIGHTS AND IMMUNITIES AND RESPONSIBILITIES AND LIABILITIES* MA  THE

INCREASE OF

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 his responsibilities and liabilities under this Act provided such surrender or increase shall be embodied in the bill of lading issued to the shipper"  The provisions of this Act shall not be applicable to charter parties, but if bills of lading are issued in the case of a ship under charter party they shall comply !ith the terms of this Act" #othing in this Act shall be held to prevent the insertion in a bill of lading of any la!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 is also allo!ed to surrender any of his rights and immunities but not to unilaterally increase his rights and immunities" SPECIAL CONDITIONS* WHILE

THE

CARRIER

CANNOT

UNILATERALL 

DIMINISH

HIS

RESPONSIBILITIES NOR INCREASE HIS RIGHTS AND IMMUNITIES, MA  THE

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 a carrier master or agent of the carrier and a shipper shall in regard to 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 as to the rights and immunities of the carrier in respect of such goods or his obligation as to sea!orthiness (so far as the stipulation regarding sea!orthiness is not contrary to public policy& or the care or diligence of his servants or agents in regard to the loading handling sto!age carriage custody care and discharge of the goods carried by sea) Provided That in this case no bill of lading has been or shall be issued 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 eect) Provided That this section shall not apply to ordinary commercial shipments made in the ordinary course of trade but only to other shipments !here the character or condition of the property to be carried or the circumstances terms and conditions under !hich the carriage is to be performed are such as reasonably to >ustify a special agreement (Section $&" MA 

THE

CARRIER

AND

THE

SHIPPER

STIPULATE

ON

THE

RESPONSIBILIT  OF THE CARRIER PRIOR TO THE LOADING OF THE CARGO AND SUBSE+UENT TO THE DISCHARGE THEREOF FROM THE SHIP!

#othing contained in this Act shall prevent a carrier or a shipper from entering into any agreement stipulation condition reservation or e6emption as to the responsibility and liability of the carrier or the ship for the loss or damage to or in connection !ith the custody and care and handling of goods prior to the loading on and subse=uent to the 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! against the vessel" 2. HOW

DO OU DISTINGUISH BARRATR  FROM MUTIN !

utiny is the act committed by the cre! against the captain for the purpose of ta*ing over the command of the vessel !hile barratry is committed not for the purpose of ta*ing over the command of the vessel" #. WHAT

IS A LOO$OUT!

2t is a member of the cre! !ho is assigned to serve as a loo*out that is to !atch the direction !here the vessel is heading for and to observe the oncoming vessels for the guidance 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  areightment to another vessel before the place of destination named in the contract has been reachedM or Lthe transfer for further transportation from one ship or conveyance to another"M  There is transshipment even if the t!o vessels belong to the same o!ner"