Carriage of Goods by Sea Act COGSA
Carriage of Goods by Sea Act COGSA
Carriage of Goods by Sea Act COGSA
CHAPTER 6
Carriage of Goods by Sea Act (Commonwealth Act 65; COGSA)
Prefatory:
1. COGSA refers to the rights and responsibilities between shippers
and the shipowners (i.e., carrier) as regards “INTERNATIONAL”
carriage of “GOODS BY SEA” where “Philippines is the
destination” (Note: Philippines must be the destination because
of Article 1753 NCC providing that the law that governs regarding
carriage of goods is the law of destination)
HENCE: COGSA does not apply to:
(a) International carriage of PASSENGERS by sea by
common carriers - even if Philippines is the destination – as
COGSA only applies to carriage by sea of goods. What applies to
international carriage of passengers by sea is the Civil Code as
primary law, and Code of Commerce and other special laws as
suppletory
Note: Warsaw Convention only applies to international carriage
of passengers and goods by AIR (not by SEA)
(b) DOMESTIC carriage of goods by sea by common carriers –
even if the goods are transported by the sea within Philippines
territory, since COGSA only applies to international carriage of
goods by sea
AT ANY RATE: In international carriage of goods by common
carrier, Civil Code is still the primary law, and only in case of its
deficiency that COGSA applies suppletory pursuant to Article 1766
NCC, or that when both NCC and COGSA have provisions on a given
fact however the provision of COGSA is more specific than COGSA
that makes the latte law applied (Note: By the way, Warsaw
Convention on international carriage of passengers and goods by
AIR prevails over Civil Code considering that Philippines is a
signatory thereto such that the primacy of Article 1766 does
not apply [this is implied in the case of Lhuillier vs. British
Airways, GR No. 171092, March 15, 2010 – where our Supreme
Court gives primacy to the provision of Warsaw Convention over
and above our Civil Code regarding the period of prescription of
action and the suspension of the running of the prescriptive
period])
2. Synopsis of what law governs regarding international carriage
of “GOODS” by SEA
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TITLE 1
Section 1. When used in this Act —
(a) The term "carrier" includes the (1) shipowner who entered
into contract with shipper for the international transport of
goods, or (2) the charterer(who entered into contract with
shipownerregarding the use of the carrier and entered into
contract with shipper for the internationaltransport of goods)
(b) The term "contract of carriage" applies only to contracts of
carriage covered by a document called B/L or any similar
document of title (purporting to be a B/L) regarding (international)
carriage of goods by sea,whether such document issued by
shipowner or by the charterer as the case may be - which
document regulates the juridical relations between a
carrier(shipowner or charterer) and a holder of such document
(i.e., the shipper or consignee)
(c) The term "goods" refer to articles of every kind whatsoever,
except live animals (hence, meat products included as goods) and
cargo which by the contract of carriage is stated as being carried
on deck and is so actually carried on deck
(d) The term "ship" means any vessel (common carrier or private
carrier) used for the (international) carriage of goods by sea
(e) The term "carriage of goods" covers the period from the time
when the goods are loaded(on ship/vessel) up to the time when
goods are unloaded from the ship
(c) Make the holds, refrigerating and cooling chambers, and all
other parts of the ship in which goods are carried, fit and safe
for their reception (usage), carriage and preservation
Note: Section 3 (1) COGSA which provides that the carrier shall
only observe due diligence, this is true only if the carrier is a
private carrier – AND NOT: When the carrier is a common carrier
(Reason: Under Article 1753 provides for the “law of
destination” as bolstered by Section 13 COGSA, and if
Philippines is the law of destination, then apply Article 1766 which
provides for the primacy of Civil Code regarding common carrier,
then by Code of Commerce and special laws such as COGSA are
only suppletory – HENCE: Under Article 1733 provides that
common carrier are to observe extraordinary diligence in the
transport of goods [Philam Insurance Co. vs. Heing-A Shipping
Corp., GR 187701, July 23, 2014])
(2) The carrier shall properly and carefully load, handle, stow,
carry, keep, care for, and discharge the goods carried
(3) After the carrier received the goods, on demand of the shipper,
the captain or agent of the carrier shallissue B/L - stating therein
among other things:
(a) The leading marks necessary to identify the goodswhich marks
or representative;
(j) Strikes or lockouts or stoppage or restraint of labor from
unit (e.g., per tonnage, etc.), or the equivalent of that sum in other
currency – UNLESS: The nature and value of such goods have
been declared by the shipper in the B/L before shipment,
which declaration shall be prima facie evidence but not
conclusive on the carrier
By agreement between the carrier, master, or agent of the carrier,
and the shipper another maximum amount than that mentioned in
this paragraph may be fixed: PROVIDED, That such maximum shall
not be less than the figure above named (i.e., not less than $500 US
dollars). In no event shall the carrier be liable for more than the
amount of damage actually sustained (by loss/damage of goods).
The carrier nor the ship shall not be liable for loss or damage of
goods if the nature or value thereof has been knowingly and
fraudulently misstated by the shipper in the B/L
(6) In case of goods of an inflammable, explosive, or dangerous
nature, captain or agent of the carrier who has not consented
with knowledge of their nature and character, may at any time
before discharge (i.e., unloaded to its Philippine destination) be
landed at any place or destroyed or rendered innocuous (not
dangerous) by the carrier without liability, instead, the shipper
shall be liable for all damages and expenses directly or
indirectly arising out of or resulting from such shipment. If
any such goods shipped with such knowledge and consent(of
the captain/agent) shall become a danger to the ship or cargo,
they may in like manner be landed at any place, or destroyed
or rendered innocuous by the carrier without liability on the part
of the carrier,except to general averageif any (is written in the
B/L; general average refers to avoidance of goods from the ship for
the benefit of all).
SPECIAL CONDITIONS
Section 6. Notwithstanding the provisions of the preceding
sections (including Section 3 [8]), a carrier, captain or agent of the
carrier, and a shipper shall, regarding transport of “particular”
goods,be at liberty to enter into any agreement in any terms(1)
as to the[increase/decrease/waiver] responsibility and liability of the
carrier for such goods, and (2) as to the [increase/decrease/waiver]
rights and immunities of the carrier in respect of such goods, or (3)
carrier’s obligation as to seaworthiness so long as it is not
contrary to public policy, or (4) [increase/decrease/waiver] the
care or diligence of his servants or agents in regard to the loading,
handling stowage, carriage, custody, care, and discharge of the goods
carried by sea: PROVIDED, That in this case no B/L(i.e., bill of lading is
a negotiable instrument) been, or shall be issued and that (but in the
meantime) the terms agreed shall be embodied in a receipt which
receipt shall be marked as non-negotiable
Any agreement so entered into shall have full legal
effect: PROVIDED, That this section (i.e., Section 6) shall not apply to
ordinary commercial shipments made in the ordinary course of
tradeBUT ONLY to other shipments(particular goods) where the
character or condition of the property to be carried or the
circumstances, terms, and conditions under which the carriage is to be
performed are such as reasonably to justify a special agreement
Section 8. The provisions of this Act shall not affect the rights and
obligations of the carrier under the provisions of the Shipping Act,
1916, or under the provisions of section 4281 to 4289, inclusive, of the
Revised Statutes of the United 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.
TITLE 2
Section 9. Nothing contained in this Act shall be construed as
permitting a common carrier by water to discriminate between
competing shippers similarly place in time and circumstances,
either(a) with respect to the right to demand and receive bills of lading
subject to the provisions of this Act; or (b) when issuing such bills of
lading, either in the surrender of any of the carrier's rights and
immunities or in the increase of any of the carrier's responsibilities and
liabilities pursuant to section 6, Title I, of this Act or (c) in any other
way prohibited by the Shipping Act, 1916, as amended.
Section 11. Where under the customs of any trade the weight of any
bulk cargo inserted in the bill of lading is a weight ascertained or
accepted by a third party OTHER THAN the carrier or the shipper, and
the fact that the weight is so ascertained or accepted is stated in the
B/L, then, notwithstanding anything in this Act, the B/L shall not be
deemed to be prima facie evidence against the carrier of the
receipt of goods of the weight so inserted in the B/L, and the
accuracy (of the weight of bulk cargo) thereof at the time of shipment
shall not be deemed to have been guaranteed by the shipper
(viz., the weight of bulk cargo determined by 3 rd party is disputable by
carrier and shipper).
Section 13. This Act shall apply to all contracts for carriage of
goods by sea to or from ports of the United States in foreign trade. As
used in this Act the term "United States" includes its districts,
territories, and possessions: Provided, however, That the Philippine
legislature may by law exclude its application to transportationto or
from ports of the Philippine Islands (i.e., this is where Article 1753 is
made to applyregarding law of destination). The term "foreign trade"
means the transportation of goods between the ports of the United
States (Philippines) and ports of foreign countries. Nothing in this Act
shall be held to apply to contracts for carriage of goods by sea
between any port of the United States or its possessions, and any other
port of the United States or its possession: Provided, however, That 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
express statement that it shall be subject to the provisions of this Act,
shall be subjected hereto as fully as if subject hereto as fully as if
subject hereto by the express provisions of this Act: Provided, further,
That 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 United
States, in foreign trade, shall contain a statement that it shall have
effect subject to the provisions of this Act.
Section 15. This Act shall take effect ninety days after the date of its
approval; but nothing in this Act shall apply during a period not to
exceed 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. This Act may be cited as the "Carriage of Goods by Sea
Act."
COMMENTS:
1. Written extrajudicial demand does NOT TOLL the running of
one-year prescriptive period under COGSA (within which to file
Suit/Action; DOLE Philippines, Inc. vs. Maritime Company of the
Philippines, GR No. L-61352, February 27, 1987; p. 209)
COGSA Section 3 Par 6: In any event the carrier (shipowner or
charterer) and the ship shall be discharged from ALL liability for
loss or damage- UNLESS: Suit (action for damages) is brought
“within one year after delivery of the goods” or “the date
when the goods should have been delivered” (to the person
entitled for delivery under the contract of carriage [holder of B/L
which could be shipper/consignee]): PROVIDED, That if a written
notice of loss or damage, either apparent or concealed (not
apparent), is not given as provided for in this section,that fact
shall not affect or prejudice the right of the SHIPPER (or
consignee) to bring suit (action for damages) within one year
after the delivery of the goods or the date when the goods
should have been delivered (to the person entitled to delivery
under contract of carriage [shipper/consignee])
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