CARRIAGE OF GOODS BY SEA ACT 2008

Arrangement of Sections

Part I – Preliminary

1. Short Title
2. Interpretation
Part 2 – Application of the Hague-Visby Rules 
3. The Hague-Visby Rules to have the force of law 
4. Application of the Hague-Visby Rules
5. Minister to specify amounts
6. Absolute warranty of sea worthiness not to be implied 
7. Construction and Jurisdiction
8. Saving
9. Binding on the Crown 

Schedule Hague-Visby Rules 

_______________________

TONGA

No. 6 of 2008

I assent,
GEORGE TUPOU V,
1st June, 2009.

AN ACT

RELATING TO THE CARRIAGE OF GOODS BY SEA AND TO GIVE EFFECT TO THE INTERNATIONAL CONVENTION FOR THE UNIFICATION OF CERTAIN RULES RELATING TO ACTS OF LADING

[8th September, 2008]

BE IT ENACTED by the King and Legislative Assembly of Tonga in the Legislature of the Kingdom as follows: 

Part 1 - Preliminary

1. Short Title 

This Act may be cited as the Carriage of Goods by Sea Act 2008. 

2. Interpretation 

(1) In this Act, unless the contrary intention appears – 

"Brussels Convention" means the International Convention for the Unification of Certain Rules of Law relating to the bills of lading done at Brussels on 25 August 1924; 

"Hague-Visby Rules" means the Hague-Visby Rules incorporating the English translation of the Brussels Convention, incorporating the English text to the Amendments to that Convention by Articles 1 to 5 inclusive of the Visby Protocol and the SDR Protocol as set out in the Schedule; 

"SDR Protocol" means the Protocol amending the Brussels Convention, as amended by the Visby Protocol done in Brussels on 21 December 1979; 

"Rules" means the Hague-Visby Rules incorporating the English translation of the Brussels Convention, incorporating the English text to the Amendments to that Convention by Articles 1 to 5 inclusive of the Visby Protocol and the SDR Protocol as set out in the Schedule; 

"Visby Protocol" means the Protocol amending the Brussels Convention done at Brussels on 23 February 1968. 

(2) A reference in this Act to a non-negotiable document includes a reference to sea waybill. 

(3) A reference in this Act to the Rules is a reference to the English translation of Articles 1 to 10 (inclusive) of the Brussels Convention 1924, incorporating the English text to the amendments made to that Convention by Articles 1 to 5 inclusive of the Visby Protocol and Article 11 of the SDR Protocol as set out in the Schedule. 

Part 2 – Application of the Hague-Visby Rules

3. The Hague-Visby Rules to have the force of law 

The provisions of the Rules, as set out in the Schedule, shall have the force of law in the Kingdom. 

4. Application of the Hague-Visby Rules to contracts 

The Rules shall apply to a contract of carriage of goods by sea that – 

(a) is made on or after the commencement of this Act; and 

(b) is a contract – 

(i) of a kind referred to in Article 10 of the Hague-Visby Rules; 

(ii) for the carriage of goods by sea from a port or place in the Kingdom to another port or place in the Kingdom, being a contract that is contained in or evidenced by a bill of lading or similar document of title; or 

(iii) contained in or evidenced by a non-negotiable document (other than a bill of lading or similar document of title), being a contract that contains express provision to the effect that the Rules shall govern the contract as if the document as if the document were a bill of lading. 

5. Minister to specify amounts 

(1) The Minister of Finance may specify and vary from time to time the respective amounts that, for the purpose of Article 4, paragraph 5 of the Schedule, are to be taken as the equivalent to the sums expressed in Special Drawing Right which are mentioned in sub-paragraph (a) and (d) of that paragraph. 

(2) Where the Minister of Finance has not made a specification under subsection (1), the respective amounts referred to in subsection (1) shall be specified by the Reserve Bank of the Kingdom. 

6. Absolute warranty of sea worthiness not to be implied

There shall not be implied in any contract for the carriage of goods by sea to which the Rules apply by virtue of this Act any absolute undertaking by the carrier of the goods to provide a seaworthy ship.

7. Construction and Juris-diction 

(1) All parties to – 

(a) a bill of lading or similar document of title; or 

(b) a non-negotiable document described in section 4(b)(iii) relating to such carriage of goods, 

relating to the carriage of goods from any place in the Kingdom to any place whether in or outside the Kingdom are deemed to have intended to contract according to the laws in force at that place of shipment. 

(2) Any stipulation or agreement (whether made in the Kingdom or elsewhere) shall be illegal, null and void and of no effect in so far as it purports to – 

(a) preclude, lessen or limit the effect of subsection (1) in respect of a bill of lading or a document mentioned in subsection (1)(b); 

(b) preclude, lessen or limit the jurisdiction of the courts of the Kingdom in respect of a bill of lading or a document mentioned in subsection (1)(b); or 

(c) preclude, lessen or limit the jurisdiction of the courts of the Kingdom in respect of a bill of lading or a similar document of title or a non-negotiable document described in section 4(b)(iii) relating to the carriage of goods from any place within or outside the Kingdom to any place in the Kingdom. 

8. Saving 

Nothing in this Act shall affect the operation of any law for the time being in force limiting the liability of shipowners or others. 

9. Binding on the Crown 

The provision of the Act shall be binding upon the Crown whenever the Crown is engaged in the carriage of goods by sea in a ship owned or chartered by the Crown. 

Passed in the Legislative Assembly this 8th day o September, 2008. 

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SCHEDULE

HAGUE-VISBY RULES

Article 1

Definitions

In these Rules the following expressions have the meanings hereby assigned to them respectively, that is no say. 

(a) "carrier" includes the owner or the charterer who enters into a contract of carriage with a shipper; 

(b) "contract of carriage" applies only to contracts of carriage covered by a bill of lading or any similar document of title, in so far as such document relates to the carriage of goods by water, including any bill of lading or any similar document as aforesaid issued under or pursuant to a charter-party from the moment at which such bill of lading or similar document of title regulates the relations between a carrier and a holder of the same; 

(c) "goods" includes goods, wares, merchandise and articles of every kind whatsoever, except live animals and cargo which by the contract of carriage is stated as being carried on deck and is so carried; 

(d) "ship" means any vessel used for the carriage of goods by sea; 

(e) "carriage of goods" covers the period from the time when the goods are loaded on to the time they are discharged from the ship. 

Article 2 

Risks 

Subject to the provisions of Article VI, under every contract of carriage of goods by water the carrier, in relation to the loading, handling, stowage, carriage, custody, care and discharge of such goods, shall be subject to the responsibilities and liabilities and entitled to the rights and immunities hereinafter set forth. 

Article 3 

Responsibilities and Liabilities 

1. The carrier shall be bound, before and at the beginning of the voyage, to exercise due diligence to 

(a) make the ship seaworthy; 

(b) properly man, equip and supply the ship; 

(c) make the holds, refrigerating and cool chambers, and all other parts of the ship in which goods are carried, fit and safe for their reception, carriage and preservation. 

2. Subject to the provisions of Article IV, the carrier shall properly and carefully load, handly, stow, carry, keep, care for and discharge the goods carried. 

3. After receiving the goods into his charge, the carrier, or the master or agent of the carrier, shall, on demand of the shipper, issue to the shipper a bill of lading showing among other things. 

(a) the leading marks necessary for identification of the goods as the same are furnished in writing by the shipper before the loading of such goods starts, provided such marks are stamped or otherwise shown clearly upon the goods if uncovered, or on the cases or coverings in which such goods are contained, in such a manner as should ordinarily remain legible until the end of the voyage; 

(b) either the number of packages or pieces, or the quantity, or weight, as the case may be, as furnished in writing by the shipper; 

(c) the apparent order and condition of the goods: 

Provided that no carrier, master or agent of the carrier shall be bound to state or show in the bill of lading any marks, number, quantity, or weight which he has reasonable ground for suspecting not accurately to represent the goods actually received or which he has had no reasonable means of checking. 

4. Such a bill of lading shall be prima facie evidence of the receipt by the carrier of the goods as therein described in accordance with paragraphs 3(a), (b) and (c). 

However, proof to the contrary shall not be admissible when the bill of lading has been transferred to a third party acting in good faith. 

5. The shipper shall be deemed to have guaranteed to the carrier the accuracy at the time of shipment of the marks, number, quantity and weight, as furnished by him, and the shipper shall indemnify the carrier against all loss, damages and expenses arising or resulting from inaccuracies in such particulars. The right of the carrier to such indemnity shall in no way limit his responsibility and liability under the contract of carriage to any person other than the shipper. 

6. Unless notice of loss or damage and the general nature of such loss or damage be given in writing to the carrier or his agent at the port of discharge before or at the time of the removal of the goods into the custody of the person entitled to delivery thereof under the contract of carriage, or, if the loss or damage be not apparent, within three days, such removal shall be prima facie evidence of the delivery by the carrier of the goods as described in the bill of lading. 

If the loss or damage is not apparent, the notice must be given within three days of the delivery of the goods. 

The notice in writing need not be given if the state of the goods has at the time of their receipt been the subject of joint survey or inspection. 

Subject to paragraph 6bis the carrier and the ship shall in any event be discharged from all liability whatsoever in respect of the goods, unless suit is brought within one year of their delivery or of the date when they should have been delivered. This period may, however, be extended if the parties so agree after the cause of action has arisen. 

In the case of any actual or apprehended loss or damage the carrier and the receiver shall give all reasonable facilities to each other for inspecting and tallying the goods.

6. bis An action for indemnity against a third person may be brought even after the expiration of the year provided for in the preceding paragraph if brought within the time allowed by the law of the Court seized of the case. However, the time allowed shall be not less than three months, commencing from the day when the person bringing such action for indemnity has settled the claim or has been served with process in the action against himself. 

7. 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 "shipped" bill of lading, provided that if the shipper shall have previously taken up any document of title to such goods, he shall surrender the same as against the issue of the "shipped" 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 with the name or names of the ship or ships upon which the goods have been shipped and the date or dates of shipment, and when so noted the same shall for the purpose of this Article be deemed to sonstitute a "shipped" bill of lading. 

8. 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 with goods arising from negligence, fault or failure in the duties and obligations provided in this Article or lessening such liability otherwise than as provided in these Rules, shall be null and void and of no effect. 

A benefit of insurance or similar clause shall be deemed to be a clause relieving the carrier from liability. 

Article 4 

Rights and Immunities 

1. Neither the carrier nor the ship shall be liable for loss or damage arising or resulting from unseaworthiness unless caused by want of due diligence on the part of the carrier to make the ship seaworthy, and to secure that the ship is properly manned, equipped and supplied, and to make the holds, refrigerating and cool chambers and all other parts of the ship in which goods are carried fit and safe for their reception, carriage and preservation in accordance with the provisions of paragraph 1 of Article 111. 

Whenever loss or damage has resulted from unseaworthiness, the burden of proving the exercise of due diligence shall be on the carrier or other person claiming exemption under this article. 

2. Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from

(a) 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; 

(b) fire, unless caused by the actual fault or privity of the carrier; 

(c) perils, dangers and accidents of the sea or other navigable waters; 

(d) act of God; 

(e) act of war; 

(f) act of public enemies; 

(g) arrest or restraint of princes, rulers or people, or seizure under legal process; 

(h) quarantine restrictions; 

(i) act or omission of the shipper or owner of the goods, his agent or representative; 

(j) strikes or lock-outs or stoppage or restraint of labour from whatever cause, whether partial or general; 

(k) riots and civil commotions; 

(l) saving or attempting to save life or property at sea; 

(m) wastage in bulk or weight or any other loss or damage arising from inherent defect, quality or vice of the goods;

(n) insufficiency of packing; 

(o) insufficiency or inadequacy of marks; 

(p) latent defects not discoverable by due diligence; 

(q) any other cause arising without the actual fault and privity of the carrier, or without the fault or neglect of the agents or servants of the carrier, but the burden of proof shall be on the person claiming the benefit of this exception to show 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.

3. The shipper shall not be responsible for loss or damage sustained by the carrier or the ship arising or resulting from any cause without the act, fault or neglect of the shipper, his agents or his servants.

4. 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 these Rules or of the contract of carriage, and the carrier shall nor be liable for any loss or damage resulting therefrom.

5.	(a) Unless the nature and value of such goods have been declared by the the shipper before shipment and inserted in the bill of lading, neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection with the goods in an amount exceeding 666.67 units of account per package or unit or 2 units of account per kilogram of gross weight of the goods lost or damaged, whichever is the higher. 

(b) The total amount recoverable shall be calculated by reference to the value of such goods at the place and time at which the goods are discharged from the ship in accordance with the contract or should have been so discharged. 

The value of the goods shall be fixed according to the commodity exchange price, or, if there be no such price, according to the current market price, or, if there be no commodity exchange price or current market price, by reference to the normal value of goods of the same kind and quality. 

(c) Where a container, pallet or similar article of transport is used to consolidate goods, the number of package, or units enumerated in the bill of lading as packed in such article of transport shall be deemed the number of packages or units for the purpose of this paragraph as far as these packages or units are concerned. Except as aforesaid such article of transport shall be considered the package or unit. 

(d) The unit of account mentioned in this Article is the Special Drawing Right as defined by the International Monetary Fund. The amounts mentioned in sub-paragraph (a) of this paragraph shall be converted into national currency on the basis of the value of that currency on the date to be determined by the law of the Court seized of the case. The value of the national currency, in terms of the Special Drawing Right, of a State which is a member of the International Monetary Fund, shall be calculated in accordance with the method of valuation applied by the International Monetary Fund in effect at the date in question for its operations and transactions. The value of the national currency, in terms of the Special Drawing Right, of a State which is not a membe of the International Monetary Fund, shall be calculated in a manner determined by that State. 

Nevertheless, a State which is not a member of the International Monetary Fund and whose law does not permit the application of the provisions of the preceding sentences may, at the time of ratification of the Protocol of 1979 or accession thereto or at any time thereafter, declare that the limits of liability provided for in this Convention to be applied in its territory shall be fixed as follows. 

(i) in respect of the amount of 666.67 units of account mentioned in sub-paragraph (a) of paragraph 5 of this Article, 10,000 monetary units; 

(ii) in respect of the amount of 2 units of account mentioned in sub-paragraph (a) of paragraph 5 of this Article, 30 monetary units. 

The monetary unit referred to in the preceding sentence corresponds to 65.5 milligrams of gold of millesimal fineness 900. The conversion of the amounts specified in that sentence into the national currency shall be made according to the law of the State concerned. The calculation and the conversion mentioned in the preceding sentences shall be made in such a manner as to express in the national currency of that State as far as possible the same real value for the amounts in sub-paragraph (a) of aragraph 5 of this Article as is expressed there in units of account. 

States shall communicate to the depository the manner of calculation or the result of the conversion as the case may be, when depositing an instrument of ratification of the Protocol of 1979 or of accession thereto and whenever there is a change in either. 

(e) Neither the carrier nor the ship shall be entitled to the benefit of the limitation of liability provided for in this paragraph if it is proved that the damage resulted from an act or omission of the carrier done with intent to cause damage, or recklessly and with knowledge that damage would probably result. 

(f) The declaration mentioned in sub-paragraph (a) of this paragraph, if embodied in the bill of lading, shall be prima facie evidence, but shall not be binding or conclusive on the carrier. 

(g) By agreement between the carrier, master or agent of the carrier and the shipper other maximum amounts than those mentioned in sub-paragraph (a) of this paragraph may be fixed, provided that no maximum amount so fixed shall be less than the appropriate maximum mentioned in that sub-paragraph. 

(h) Neither the carrier nor the ship shall be responsible in any event for loss or damage to, or in connection with, goods if the nature or value thereof has been knowingly mis-stated by the shipper in the bill of lading. 

6. Goods of an inflammable, explosive or dangerous nature to the shipment whereof the carrier, master or agent of the carrier has not consented, with knowledge of their nature and character, may at any time before discharge be landed at any place or destroyed or rendered innocuous by the carrier without compensation, and the shipper of such goods 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 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 average, if any. 

Article 4bis

Application of Defences and Limits of Liability 

1. The defences and limits of liability provided for in these Rules shall apply in any action against the carrier in respect of loss or damage to goods covered by a contract of carriage whether the action be founded in contract or in tort. 

2. If such an action is brought against a servant or agent of the carrier (such servant or agent not being an independent contractor), such servant or agent shall be entitled to avail himself of the defences and limits of liability which the carrier is entitled to invoke under these Rules. 

3. The aggregate of the amounts recoverable from the carrier, and such servants and agents, shall in no case exceed the limit provided for in these Rules. 

4. Nevertheless, a servant or agent of the carrier shall not be entitled to avail himself of the provisions of this Article, if it is proved that the damage resulted from an act or omission of the servant or agent done with intent to cause damage or recklessly and with knowledge that damage would probably result. 

Article 5

Surrender of Rights and Immunities, and Increase of Responsibilities and Liabilities 

A carrier shall be at liberty to surrender in whole or in part all or any of his rights and immunities or to increase any of his responsibilities and liabilities under the Rules contained in any of these Articles, provided such surrender or increase shall be embodied in the bill of lading issued to the shipper. 

The provisions of these Rules shall not be applicable to charter-parties, but if bills of lading are issued in the case of a ship under a charter-party they shall comply with the terms of these Rules. Nothing in these Rules shall be held to prevent the insertion in a bill of lading of any lawful provision regarding general average. 

Article 6 

Special Conditions 

Notwithstanding the provisions of the preceding Articles, 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 seaworthiness, so far as this stipulation is not contrary to public policy, or 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 water, 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 which shall be a non-negotiable document and shall be marked as such. Any agreement so entered into shall have full legal effect. 

Provided that this Article shall not apply to ordinary commercial shipments made in the ordinary course of trade, but only to other shipments 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. 

Article 7 

Limitations on the Application of the Rules 

Nothing herein contained shall prevent a carrier or a shipper from entering into any agreement, stipulation, condition, reservation or exemption as to the responsibility and liability of the carrier or the ship for the loss or damage to, or in connection with the custody and care and handling of goods prior to the loading on and subsequent to the discharge from the ship on which the goods are carried by sea.

Article 8 

Limitation of Liability 

The provisions of these Rules shall not affect the rights and obligations of the carrier under any statute for the time being in force relating to the limitation of the liability of onwers of vessels. 

Article 9 

Liability for Nuclear Damage 

These Rules shall not affect the provisions of any International Convention or national law governing liability for nuclear damage. 

Article 10 

Application 

The provisions of these Rules shall apply to every bill of lading to the carriage of goods between ports in two different States if: 

(a) the bill of lading is issued in a Contracting State, or 

(b) the carriage is from a port in a Contracting State, or 

(c) the contract contained in or evidenced by the bill of lading provides that these Rules or legislation of any State giving effect to them are to govern the contract, whatever may be the nationality of the ship, the carrier, the shipper, the consignee, or any other interested person.