Commercial Law and Carriage by Sea

The law relating to contract of carriage is today becoming increasingly important in international trade. The most important aspect of the law of carriage is the carriage of goods by sea, and it is the main point of discussion in this unit. The role of the common carrier, his duties and liabilities as well as the laws relating to the carriage of goods by sea. The Hague Rules as it relates to the carriage of goods by sea shall also be discussed. There are two types of carriers in the carriage of goods by sea. They are private and common carriers. Download the Carriage by Sea Act via this link.

Common Carrier

A common carrier is one who is engaged in the trade of carrying goods as a regular business, and also holds himself out as ready to carry for anybody who may wish to employ him. In Great Northern Railway Co. v. L.E.P. Transport and Depository Ltd (1922) 2 K.B 742, the court held that a common carrier is a person who undertakes to transport from place to place, for hire, the goods of such persons as he think fit to  employ him.

A common carrier may also operate with respect to a particular class of goods so long as he undertakes to carry for everyone. In Ingate v. Christie (1950) 3.C and K 61, the defendant had the word lighterman posted up over the door of his office. It was established in evidence that he carried for anyone who engaged his craft.  It was held that he was a common carrier.

Duties and Liabilities of the Common Carriers

The provision of common law as it relates to liability of the common carrier was absolute in relation to the safety of goods entrusted to him. A common carrier is the insurer of the safety of the goods carried and therefore he is liable for any damage to or loss of them, whether occasioned by his negligence or not. For this reason, he needs to exercise proper care and skill in carrying out his duty, such duties may be summarized as follows:

a.      The duty to accept and carry goods offered to him, in the absence of lawful excuse and to charge no more than a reasonable price. The duty to carry implies that the carrier must not necessarily deviate from his customary route, and if he does so,  he may be liable for deviation and become responsible for all losses.

b.      Duty that the goods are safe, for he is an insurer of the goods.

c.      To deliver the goods to the consignee at the place to which his is directed, otherwise he will be liable with misdelivery or conversion.

It is important to note that there are exceptions to the common position they include:

           i.            Act of God: this as the first exception is that the ship-owner is not responsible for loss or damage resulting from an ‘Act of God’. Before an act will qualify as an Act of God, it must fulfill the following conditions stated in Nungent v. Smith (1876) 1C.P.D 423, Any accident as to which a common carrier can show that it is due to natural causes directly and exclusively independent of human action, and it could not have been prevented by any amount of foresight and pains and care reasonably to have been expected from him.

         ii.            Kings Enemies: these are acts done by states or peoples with which the sovereign may be at war, at any time during the carriage of the goods.

     iii.            Inherent Vices: goods susceptible to damage or tendencies to easy deterioration; a carrier is not responsible for a loss or damage which has resulted from an inherent defect of the thing carried. See Nungent v. Smith (Supra).

There are situations where the common carrier exceptions do not apply. These are:

           i.            Negligence: A carrier will be relieved from liability for damages to the goods arising from an act or omission on the part of the consignor.

         ii.            Deviation: Where the expected causes have occurred upon a departure from the proper prosecution of the voyage, as where  in the course of a deviation, the ship  is lost by an Act of King’s enemies, the shipowner is not excused unless he can show that the loss must have occurred even if there had been no deviation.

       iii.            Unseaworthiness: The shipowner remains responsible for loss and damage to the goods, if the ship was not in a seaworthy condition when the voyage was commenced and if the loss would not have arisen but for that unseaworthiness.

The Hague Rules on Carriage by Sea

It is an international regulation, aimed at reconciling the interests of shipowners, cargo owner and insurers alike. The basic aim of the Act is to relieve a shipowner from his common law absolute liability. He is therefore liable only for negligence and is granted certain immunities. 

The major provisions of the Act are as follows:

a)     There shall no longer be any implied warranty of seaworthiness, except the  carrier is expected to exercise due diligence to make the ship seaworthy at the beginning of the voyage.

b)     The carrier must properly and carefully load, handle, care and discharge  the goods carried.

c)      And he must issue an appropriate Bill of Lading after loading of the goods.

d)     Removal of the goods at the port of discharge into the custody of the person entitled to delivery is prima facie evidence that the goods have been delivered as described in the bill of lading.

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