ABSTRACT

Carriage of goods by sea has for a long period sufficed as a very important and popularly used mode of maritime transportation especially with bulk cargo. This is due to its suitability to almost all kinds of cargo, coupled with the fact that there exist international conventions such as the Hague-Visby, Hamburg and Rotterdam Rules as well as the CEMAC Shipping code which help to shape the affairs of the carriage. These beautiful attributes notwithstanding, there are question marks as per their applicability, enforceability and adequacy.

These problems have therefore triggered the imperativeness of this research. There is therefore an imperative question: on what bases the liability of carriers under international carriage of goods by sea been founded? This then revolves around the basis of carriers liability in international carriage of goods by sea as main objective. In an attempt to answer the above question, the research methodology used for this study is the qualitative methodology which is purely doctrinal in nature which makes use primary and secondary sources of data such as; The CEMAC Shipping Code, The Hague-Visby Rules, Hamburg Rules and Rotterdam Rules.

Findings reveal that there is a divergence between the various conventions as regards some liability Rules with the newest of these conventions (Rotterdam Rules, 2009) yet to come into effect because of not-ratification by a sufficient number of countries. It is therefore recommended that, there is need to hasten the coming into force of the Rotterdam Rules which appear most soothing to contemporary trade as well as the establishment of a universally binding arbitration litigation forum so as to cub forum shopping.

CHAPTER ONE

GENERAL INTRODUCTION

Among the various means of international transportation, carriage of goods by sea happens to be the most effectively used both before and in our contemporary society because of its unique attributes of capacity to transport bulk cargo which is a thing uncommon to other modes of transportation. Carriage of goods by sea has transcended through various forms and has managed to stand the test of time. It is not an open environ or free ride though, it has rules which coordinate the entire transport activity. These modalities are enshrined in the CEMAC Merchant shipping Code, Hague Rules, Hague-Visby Rules, the Hamburg Rules and the Rotterdam Rules among a host of other maritime legislation governing sea carriage. This introductory chapter encompasses the background to the study, research problems, research questions, objectives methodology right down to Synopsis of chapters.

1.1.   BACKGROUND TO THE STUDY

The entire concept of water transport is an amazing one. The geography over which maritime transportation operates is very unique and distinct. It harbors a combination of physical, strategic and commercial Imperatives. Physical issues stay stable across time zones but the strategic and commercial considerations always shift and undergo modification with the turn of the clock and flow of globalization[1]. The philosophical inclination of maritime transport is founded on criteria such as; depth, currents, winds and the configuration of coastlines and passengers. It is important to note that 71% of the earth’s surface is raided by oceans, that notwithstanding, maritime transportation only occurs along specific routes which are regularly used in shipping itineraries[2]. It has been observed that maritime routes try to follow the great circle route[3], a pattern that is readily observable on the configuration of transatlantic and transpacific routes. Sea transport is nothing short of a roller coaster of risks and satisfaction as it has proven to be the most convenient means of transport amidst all the uncertainties and perils in transit[4].

Maritime/sea transport has a very long history of existence; it is believed that Australian autochthons used boats for travelling to find some food sources 45000 years ago[5]. It is believed that whenever they joined logs to sail they had some small boats. Much is not really known about that but the starting point of maritime transport has been predated to that era. Sometime around the 3^rd century BCE, Maritime routes had spurn into prominence as people sought to create an extension in their business to involve business partners from different territorial jurisdictions. The Arabian Sea which is now surrounded by India and Pakistan stands out as the first main marine trade courses for early coastal sailing vessels. Although the vessels were way beyond being equipped, they provided an alternative to land transport. The concept of navigation is said to have its base around river Indus. The vessels could navigate their route across the sea using marine’s astrolabe instruments as they could determine the position of the moon, sun, stars or planets. It was during this period that the romans embraced the art of sailing and building large commercial fleets capable of crossing the Mediterranean Sea. The evolution continued going into different dimensions and this is why by the 7^th century the Arab empire installed their stamina by creating useful trade routes throughout Europe, Asia and Africa. It was only in the early 15century that the Europeans initiated massive discovery in maritime navigation and shipbuilding as they sought to trade across both the Atlantic and Indian Ocean. This was all in a bid to facilitate the transportation of slaves from Africa to America, and in turn ship raw materials such as sugar and tobacco back to Europe. The evolution transcended to the development of the Panama and the Suez Canals.[6] Maritime transport among the different modes of transportation stands out to be the oldest of them all. Maritime transport is as old as history of jurisprudence; this is just to show how much it has segmented its place in the transport arena. Although at its inception stage it was not all global mainly because of uneven technological advancement which barred the fabrication of many shipping vessels. Statistically, over the past decade, the number of container ships in the global fleet increased from 4,966 ships in 2011 to 5,534bships in 2021, while the carrying capacity of the global merchant fleet reached roughly two billion deadweight tons in 2020.

Sea transport severally has been described as an adventure because of the numerous perils in transits overboard the scary waters. Impressively, since its inception, it has experienced several revelations and transformations as days unfolded. These technical changes have been labeled under “capacity and reliability”. In terms of capacity, it is a noticeable fact that most ship classes have become bigger, this has resoundingly skyrocketed the economics of scale. The only constraints on ship sizes were the capacity of ports, harbors[7] and canals[8] to accommodate them. Also, the speed of ships has marginally improved, since the replacement of “conventional ships[9]” with “containerships[10]” which are faster in nature. Since container ships are faster than the conventional ship which they replaced, it means that with this slight speed improvement, over transoceanic distances, a few days can be gained, this is a mighty plus. More so, ships have become increasingly specialized with many designed to carry only one type of cargo such as containers, petroleum, vehicles, or liquid natural gas. Again, the general design has also improved; this has enables the fabrication of larger and more energy efficient ships. In addition, automation[11] has enabled ships to be manned by smaller crews amidst the improvement of safety standards. Just like any other transport activities, it has helped to ignite trade relations between different nationals, these trading relations are equally propelled by the improved maritime shipping capacity, and this therefore creates some level of reciprocity between trade and maritime shipping.

Maritime transport is therefore an avenue for the interaction of forces of demand and supply or better still, an enabler of business transactions between a buyer and a seller, thereby leading to an expansion in the overall market. Maritime transport has been made to adapt to a number of trends this could be owing to the increasing demands of certain types of products in the world’s market such as; raw materials, fossil fuel and grains. However, it is trade in part and finished goods that have been the driver of change in maritime transport. The outcome of course cannot be uniform due to geographical imbalance, meaning some countries will be better connected than others. As a challenge, not every location is connected to maritime transport, this eventually makes it difficult for goods to be effectively circulated, although in recent times, there have been the development of transnational infrastructure such as highways and railway corridors[12] which grant access to a port.

Amidst all the credentials of maritime transportation and its undeniable benefits as far as international trade and economic globalization is concerned, maritime transport still faces two major disadvantages; the first of this is speed, maritime ships have slow speeds averaging 15knots for bulk ships, (26km/Hr.) and over 20 knots (37km/hr.) for container ships, this is extremely slow compared to the other modes of transportation such as air and land. Another disadvantage is in the area of delay and the time of performance, this is specifically at ports where loading and unloading take place, loading or unloading usually take several days of handling, especially when break-bulk cargo is carried[13]. Considering this whole aspect of time constraint, it is therefore not advisable for this mode of transportation to be used by importers or exporters for goods requiring urgent delivery such as; drugs, fruits and other agricultural products as well as other goods whose usage are scheduled for a nearby date. However, active short distance messenger market service ships like ferries are faster and used in areas like Western Europe[14], japan, Indonesia and the Philippines. With maritime transport gaining significance grounds and recognition at the international scene, a lot of mishaps began gaining prominence such as disputes arising from damage or loss of goods, and with this becoming recurrent, there was need for legislation to be put in place to state clearly responsibilities of parties to an international carriage of goods contract. To this effect, the International convention for the unification of certain rules relating to the bill of lading hereinafter referred to as the Hague Rules. It was deliberated upon at Brussels in 1924 but only came into force in 1931. The Hague rules are a group of international coded laws defining the rights and liabilities of a carrier.

It was first introduced in international law in 1921 as an association meeting in Brussels; they were adopted first as clauses in the bill of lading and after 1923 as the Brussels Convention on limitation of liability[15]. Contractors for the carriage of goods by sea under the bill of lading had been governed by divergent/ despairing laws of various nations (maritime nations). As such, until 1924, no substantive attempt had been made to adopt uniform rules which would govern international carriage of goods by sea at a global level. This therefore means that because of this lack of a uniform law, the terms embodied in a bill of lading are bound to vary in form from one country to another[16]. The whole concept of carriage of goods by sea usually proved very problematic as ship owners always stated in their contracts that they would not be liable for any loss or damage arising from the voyage, thereby leaving insecurities in the minds of cargo owners because they had no effective remedies against the ship. It is worth noting that the laws of maritime transport varied from one country to another, in respect of the rights and responsibilities of the carrier vis a vis the cargo owner. Also, there was no internationally accepted and recognized standard in regards to degree of responsibility which the carrier was bound to assume in regard to the cargo, this alone mystified and rendered the whole issue of carriage of goods by sea very scary while remaining uncertain. Everything turned to favor the carrier and even the principle that the carrier cannot stipulate exemption from certain minimum liabilities and responsibilities was not even internationally recognized and accepted until after the First World War. Sacred was the freedom of contract in many courts, especially those in the United Kingdom, who displayed a stronghold in the concept of privity of contract and as such they were uninterested in the alteration of fundamental terms of a contract, irrespective of its unfair nature. Courts in the United States however uniformly stood by the fact that a carrier cannot evade some minimum standards of liabilities and responsibilities put in place.

Many of the exemption clauses in the bill of lading were declared to be contrary to public policy and hence, void. To consolidate this, the United States passed the Harter Act[17] 1893, adopting the principle that the carrier was not entitled to disclaim liability for loss or damage unless he displayed or exercised due diligence in making the ship sea worthy. Many nations as a result of this started Instituting changes because of the inspiration gotten from the Harter Act. The whole process of seeking a unified set of rules to govern international carriage of goods all of a sudden changed its gear. Reason why not long after the First World War, after several attempts, The Hague rules finally came into adoption. It must be ascertained the Brussels convention of 1924, adopting The Hague rules, created uniform and distinct rules of law on international carriage of goods by sea. It specially laid down inter alia, the minimum responsibility and liability of a carrier of goods by sea under a bill of lading.[18]  The specificity of the Hague rules is that, their articles 1(b)[19] and make it clear that it applies to contracts of carriage covered by a bill of lading or any similar document of title.[20] 

The rules set the ball rolling for an organized maritime arena, but it wasn’t sufficient and that was why in 1968[21], the Brussels protocol amended the Brussels convention of 1924(Hague rules). They participants met in the historic city of Visby after the conference, hence, the name Visby rules. Included in the Visby rules was the Muncaster castle amendment[22], a proposed amendment to article 3(1)[23] of the 1924 Hague rules which allowed carriers to be relieved of their obligation to exercise due diligence to make the vessel sea worthy provided they diligently choose a reputable independent contractor to do the work. 10bnations had ratified or acceded to the rules, consequently, by June 23, 1977, the Visby rules came into force for the first time in; United Kingdom, France, Denmark, Norway, Sweden, Switzerland (all of whom had ratified), and Ecuador, Lebanon, Singapore and Syria (all of whom had acceded). The Hague and Visby rules where then read together as a single document called the Hague-Visby rules. Although sometimes read as a single document, they still lack some degree of uniformity and also fail to take into consideration modern transport activities including; containerization, door to door contracts and use of electronic transport documents. This was why in 2001, United Nations commission on international trade law (UNCITRAL) created a working group called “working group on transport law”, which was composed of all members of UNCITRAL, and devoted 13 sessions to the preparation of the draft convention have taken place and four subsequent drafts have been prepared[24].

The working group had the task of working in collaboration with others to the attainment of; a cogent scope of application, a considerable period of responsibility of the carrier, liability of the carrier, obligation of the shipper and transport documents. Surprisingly, this convention was only adopted by the general assembly of the United Nations after the 67^th plenary meeting on the 11^th of December 2008, signed in Rotterdam and hence, the appellation “Rotterdam Rules”.  It should be noted that these rules still await ratification from 20 states but unfortunately, between 2008-2017, only three states[25] had ratified it, and though with widespread support for it, it is but probable that it will take quite a long time for Rotterdam rules to come into force[26]. Irrespective of whatever manifestation anmd evolution, the bottom line of maritime transport has been embroiled by liability and responsibility for loss or damage.