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Gonzales Rafael Francesco COGSA Pertinent Provisions

COGSA applies to international shipments to the Philippines and governs the relationship between carriers and shippers. It defines carriers as shipowners or charterers undertaking carriage, and shippers as those receiving bills of lading for goods. Carriers must exercise due diligence to maintain a seaworthy ship with fit holds and qualified crew, safely load and store goods, and issue bills of lading. Claims for damage must be filed within 3 days if not apparent or immediately if apparent, and lawsuits must be brought within 1 year, except for misdelivery claims. Carriers can be liable for unseaworthiness unless they prove extraordinary diligence. COGSA limits liability to $500 per package, but shippers can

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RAFAEL FRANCESCO SAAR GONZALES
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34 views2 pages

Gonzales Rafael Francesco COGSA Pertinent Provisions

COGSA applies to international shipments to the Philippines and governs the relationship between carriers and shippers. It defines carriers as shipowners or charterers undertaking carriage, and shippers as those receiving bills of lading for goods. Carriers must exercise due diligence to maintain a seaworthy ship with fit holds and qualified crew, safely load and store goods, and issue bills of lading. Claims for damage must be filed within 3 days if not apparent or immediately if apparent, and lawsuits must be brought within 1 year, except for misdelivery claims. Carriers can be liable for unseaworthiness unless they prove extraordinary diligence. COGSA limits liability to $500 per package, but shippers can

Uploaded by

RAFAEL FRANCESCO SAAR GONZALES
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Gonzales Rafael Francesco

COGSA pertinent provisions


The Carriage of Goods by Sea Act is an American stature adopted by the Philippines. It applies in
cases of international shipping to the Philippines, that is, it is suppletory applied when goods
are transported from a foreign port to the Philippines. It finds application in cases where the
Civil Code does not.
“Goods” under COGSA
COGSA defines goods as goods, wares, and merchandise of every kind with live animals and
goods carried on deck not part of the coverage thereof. With regards to goods carried on deck,
it is similar to the York-Antwerp Rules in it also does not recognized goods carried on deck.
Parties
The parties in a contract of carriage as defined by COGSA are the carrier and the shipper. In this
case the carrier may either be the shipowner or a charterer who undertakes a contract of
carriage with a shipowner
Duties of a carrier under COGSA
Under COGSA, a carrier exercises due diligence by keeping the ship seaworthy. Under the
provisions of COGSA seaworthiness is maintained by ensuring, not only that the ship has the
fitness to undertake a voyage, but also that it is properly manned, and that it is capable of
carrying the cargo which it undertakes to carry by ensuring that the holds, refrigerating
chamber and other places where goods are stored are fit and safe for the keeping of the goods.
The carrier must also ensure that goods are both loaded and kept safely. Finally, the carrier
must also issue a bill of lading to the shipper during the receipt of the latter of the goods.
Additionally, the seaworthiness, and by implication the qualification of the crew and the
cargoworthiness are all implied guarantees and they need not be stipulated in a contract.
Notice of Claim and prescriptive period
A claim must be made within 3 days from delivery if the damage is not apparent and
immediately if the damage is apparent. The non-filing of a claim within the same period does
not bar the shipper from instituting an action within one year from the delivery of the goods.
However, with regards to misdelivery, the one year prescriptive period does not apply. The time
runs from actual delivery, and if goods were misdelivered then not actual delivery that took
place. Thus even though damages were suffered by the consignee upon misdelivery but the
meaning of “damage” under the COGSA is physical damage to the goods and not damage due
to misdelivery.

Unseaworthiness and escaping liability


The COGSA peculiarly provides that a carrier may be saved from liability if the cause for the
damage or loss was unseaworthiness. However, the carrier may not simply absolve himself of
liability in this manner, since the provision on the New Civil Code still apply. While under COGSA
a carrier may save himself due to unseaworthiness, the presumption of negligence still applies
and even if the shipowner proves unseaworthiness he must still prove that he performed extra
ordinary diligence.
Limiting Provisions
Same as with the Warsaw Convention, the COGSA provides for a ceiling by which claims are to
be satisfied. The ceiling in this case is 500 USD for each package. However, like the Warsaw
Convention, the limiting provision is not absolute. For there to be liability above the threshold
set by COGSA there must be a declaration made by the shipper to the carrier of the special
value of the goods. This is reasonable since in cases where goods exceed the threshold, the
carrier must be appraised of the value thereof so that he may not be unduly surprised by the
shipper when he files a claim beyond the limit. This is also so that the carrier may know of the
value, and then take the necessary steps in order to ensure that that cargo is secured. A specific
application of this would be in cases of voluntary sacrifice, if a shipper does not declare the
value of the goods and their great value is not apparent then the carrier may choose to
voluntarily sacrifice the cargo. The case would be different however if the value was declared.
Then, if the carrier is aware of the high value of the goods, he may be persuaded to put the
cargo last or among the last things to be thrown overboard with regards to the order of
preference.

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