COGSA

2. Burdens under COGSA: x2

(a) Burden of going forward with evidence; (b) Ultimate burden of non-persuasion;

COGSA terms vs BL terms

(e) COGSA trumps any contrary terms of B/L.

COGSA General x4

• COGSA operates for imports and exports. • Some countries apply only for exports because they have jurisdiction only then. • COGSA is known as Hague Rules in some countries. • Carrier means owner or charter.

HARTER v. COGSA 1. The two acts are functionally the same except for 3 points:

(a) Harter denies exoneration for errors in navigation and management if there has been any failure to exercise due diligence to provide a seaworthy vessel, even if this is not the cause of the loss. COGSA requires some causal connection between the error and the loss, i.e. does not require carrier to first show that it exercised due diligence to make the vessel seaworthy as a predicate for asserting a defense. (b) Harter has no statute of limitations; (c) Harter does not provide a limit of liability for loss or damage to cargo.

HARTER v. COGSA 2. Other Differences:

(a) Harter governs B/L's between domestic ports. COGSA applies between ports of US & ports of foreign countries; (b) COGSA does not apply to goods carried on deck or to live animals; (c) COGSA - "Tackle to Tackle"; Harter - outside this period.

COGSA Incorporated Hague rules into US law x3

(a) Purpose was to achieve international uniformity and to redress the edge in bargaining power enjoyed by carriers over shipper and cargo interests by setting out certain duties and responsibilities of carriers that cannot be avoided even by express contractual provision. (b) Very Pro-Carrier Statute. (c) Used in foreign trade; for US coastal or inland carriage, Harter applies unless otherwise agreed.

If BL intended as mere receipt...

(c) If the B/L is intended as a mere receipt, COGSA will not apply between the parties

Ks within US

(d) K's of carriage between ports of the US and inland water carriage under B/L's are governed by Harter (However, the parties may expressly incorporate COGSA to apply).

3. Application

(§§1300-1301) Applies to all K's for carriage of goods by sea to or from ports of the US in foreign trade. Includes negotiable and non-negotiable B/L. (a) Period of Responsibility: Tackle to Tackle. which "has traditionally meant from the moment when the ship's tackle is hooked on at the loading port until the moment when the ship's tackle is unhooked at discharge. If shore tackle is being used, that moment has traditionally been when the goods cross the ship's rail." (Tetley). "some physical act of possession associated with transfer of risk from a shore interest to a ship interest." (KNAUTH). (i) for chute, this is when it hits the ship's end of the chute; (ii) with liquids, when ship's pipe connects with phlange; (iii) on gangplank, when over hull. (iv) Can be extended by k: Mannesman Demag Corp. v. M/V Concert Express (5th circuit 200)

The Coverage of COGSA and the Multimodal Container Revolution

1. Increasingly sea carriers and freight forwarders are providing door to door transport using a through bill of lading. 2. Multimodal—generally cts say that COGSA may apply to the entire trip if such intent is expressly provided for in the B/L, such as in a clause paramount (Taisho Marine). Even if such intent is expressed, though COGSA will only apply as a contractual term to the land based portion of the trip, rather than by statutory force. Such K terms may be overcome if they conflict with applicable law.

• Charter def +x3

A contracts to use carrier capacity of vessel it does not own. Kinds: o Demise, or bare boat charter: charter becomes owner ad hoc. o Time charters: charter for period of designated time. o Voyage charter: particular voyage contract.

Rights and Immunities of Carrier and Ship (§1304) Section 3 X4

Amount of Liability (i) limits liability to $500 per package; (ii) If not shipped in package: customary freight unit; (iii) UNLESS, the value could have been declared by the shipper before shipment (prima facie evidence); (iv) (§1305) May K to increase liability, but not decrease it.

Responsibilities and Liabilities of Carrier & Ship (§1303) Section 4

B/L is prima facie evidence of the receipt of the carrier of the goods.

(a) All other countries

COGSA applies only to outgoing cargo.

Responsibilities and Liabilities of Carrier & Ship (§1303) Section 2

Cargo: carrier must properly and carefully load, handle, keep, carry, care for and discharge the goods. Continuous Duty. *Doesn't cover latent defects.

Responsibilities and Liabilities of Carrier & Ship (§1303) Section 1

Carrier must exercise due diligence before and at the beginning of the voyage, to: (i) make the ship seaworthy; (ii) properly man, equip, and supply the ship; (iii) make ship fit and safe for the receipt, carriage and preservation of the goods. (iv) NOTE: There is no absolute duty to make vessel seaworthy only applies "before and at the beginning of the voyage."

Responsibilities and Liabilities of Carrier & Ship (§1303) Section 3 x3

Carrier, upon request, must issue to the shipper a B/L showing: (i) leading marks necessary for identifying the goods; (ii) Number of packages or pieces, or the quantity of weight; (iii) Apparent order and condition of the goods, provided that no carrier shall be required to do this if he has reasonable grounds for suspecting inaccuracy or which he had no reasonable means of checking. (However, no one does this because it takes too much time!)

Responsibilities and Liabilities of Carrier & Ship (§1303) Section 8

EXONERATION CLAUSES Any clause relieving the carrier or the ship of liability for loss or damage of the goods arising from negligence, fault or duties in this section shall be void. *A benefit of insurance in favor of the carrier is void.

Rights and Liabilities Under other Provisions (§1308) HIGH/LOW LIMIT BY STIPULATION

Parties can agree to a higher limit of liab., but never less than $500 pp.

Rights and Immunities of Carrier and Ship (§1304) Section 1 x3

UNSEAWORTHINESS (i) Not liable for damage or loss arising from unseaworthiness unless caused by a want of due diligence to make the vessel seaworthy; and to properly man, equip, and supply the vessel; (proximate cause of damages) if the loss or damage is the result of unseaworthiness, the burden of proving the exercise of due diligence is on the carrier or other party claiming exemption under this section. (ii) Latent Defects therefore, do not make the carrier liable. (iii) Transitory Seaworthiness (arising after the vessel leaves port) N/A.

Rights and Immunities of Carrier and Ship (§1304) Section 2 X13

Uncontrollable Loss: Not liable for: (i) acts or negligence in the navigation or mgt. of vessel; (ii) fire, unless caused by actual fault or privity of carrier; (iii) perils or dangers of the sea; (iv) acts of God; (v) acts of war; (vi) acts of public enemies; (vii) arrests, restraint of princes, or legal seizure;quarantine; (viii) act or omission by shipper or owner of goods; (ix) strikes/lockouts; riots; (x) saving or attempting to safe the life of prop @ sea; (xi) inherent defect, vice or quality of the goods; (xii) latent defects not discoverable by due diligence; (xiii) any other cause arising without the actual fault or privity of carrier; burden of proof is on the party claiming exemption to show that the carrier's fault or privity did not contribute to the loss or damage.

Rights and Liabilities Under other Provisions (§1308) Deviations

a deviation has to be reasonable or to save or attempt to save life or property at sea for it not to be deemed an infringement or breach of the contract of carriage, and carrier shall not be liable for any loss or damage therefrom; however, if it is to load or unload passengers, it will be pf of unreasonable deviation.

Mannesman Demag Corp. v. M/V Concert Express (5th circuit 200) Extension of COGSA application by K

a) Here cargo damaged after ocean voyage on trip from Md to IN, covered under a through B/L, Ocean carrier offering door to door service, so the truck is a subk. Because COGSA applies tackle to tackle, the Harter Act in this case applies to the period between the discharge of the cargo from the vessel and "proper delivery." COGA doesn't cover delivery. In Mannesman, the ct held that for a through Bill of Lading for multimodal transport, "proper delivery" for Harter Act purposes took places when the goods were handed over to the inland carrier. So here when the goods were damaged the Harter Act was not compulsorily applicable, and therefore the COGSA limit does not apply (because in K they tied COGSA limitation to when Harter is compulsorily in force). They could have limited liability for the entire trip, but where they tie it to compulsory application of Harter, the limitation does not make it to inland transport. b) Parties can agree to extend the coverage of COGSA beyond tackle to tackle.

K of Carriage

applies only to this particular shipment evidenced by a B/L.

Prerequisite

is a prerequisite for COGSA to apply. A K of carriage may be a B/L or any similar document of title which is evidence of a K of carriage.

Goods

is anything carried other than live animals and cargo carried on deck and agreed to be carried that way.

Carrier

may be vessel, owner or charterer (or multiple parties)

• Differences between COGSA and Harter ACT x4

o Harter covered US foreign and LOCAL. o COGSA is only for international. o COGSA favors carriers, because it recognizes more defenses, even if the carrier cannot show due diligence AND LOW limits of liability (500$ per package.) In Harter it is a prerequisite to have exercised due diligence. In reality it favors insurance companies. The fight really occurs between insurance companies. o COGSA doesn't apply to what happens to goods before being loaded or after being discharged. But, parties can stipulate that in the contract.

Responsibilities and Liabilities of Carrier & Ship (§1303) Section 6

one year statute of limitations. Must give notice of damage at the time of removal. If the damage is not apparent must give notice within 3 days, if they do not the goods are rebuttably presumed to be free from damage however, may still bring suit within a year, and here the shipper must overcome this rebuttable presumption that the goods were free from damage.

Rights and Liabilities Under other Provisions (§1308): FIRE STATUTE

the provisions of COGSA shall not affect the Fire Statute

Rights and Liabilities Under other Provisions (§1308) Inflammable, explosive, or dangerous goods:

these goods are to be consented by carrier, if not, carrier may discharge. Even if carrier consents, carrier may discharge them if they present danger.