The importance of the maritime sector to the significantly import-dependent Nigerian economy cannot be over emphasized. Nigeria is heavily involved in international trade facilitated by the carriage of goods by sea, hence the necessity for certainty and uniformity in the rules governing these transactions.
At present there exist two legal regimes governing the carriage of goods by sea in Nigeria: The International Convention for the Unification of Certain Rules of Law relating to Bills of Lading (Hague Rules) 1924 which applies as a Statute of General Application in the form of the Carriage of Goods by Sea Act of 1926 and the United Nations Convention on the Carriage of Goods by Sea 1978 (the Hamburg Rules), which was domesticated in Nigeria as the United Nations Convention on the Carriage of Goods by Sea (Ratification and Enforcement) Act 2005.
The Hague Rules apply to carriage of goods by sea as long as the port of loading is in Nigeria, whether or not the goods will be discharged at a port in or outside Nigeria. The Hamburg Rules on the other hand apply where the port of loading or discharge is in Nigeria or in any other country that is a signatory to the Hamburg Rules; where the bill of lading or document evidencing the contract for the carriage of goods by sea is issued in a contracting state or where the parties expressly contract that the Rules should apply.
When the Hamburg Rules entered into force in Nigeria, she was required by Article 31(1) of those Rules to denounce the Hague Rules.
Nigeria’s omission to expressly denounce the Hague Rules and consequently repeal same has led to various debates as to which regime governs carriage of goods by sea in Nigeria.
This and other perceived shortcomings of both the Hague and Hamburg Rules have evoked a desire by the Nigerian government for a unified system of rules for international maritime trade, hence its recent calls for the ratification of the United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (The Rotterdam Rules) to which it became a signatory in on 23rd September, 2009.
The Rotterdam Rules (the Rules) demonstrate significant improvements over the Hague and Hamburg Rules and seem to be more advantageous to cargo-owning countries like Nigeria.
Firstly, the application of the Rules extends beyond international carriage of goods by sea simpliciter to include carriage by other modes of transport such as land and air transport which do not come within the scope of the Hague and Hamburg Rules. These other modes of transportation must however include a sea-leg for the Rotterdam Rules to apply.
Under the Rotterdam Rules, the limit of the liability of a carrier for breach of its obligations such as loss of or damage to goods carried on its ship, is set to a higher quantum of 875 Special Drawing Rights (SDR) per package or 3 SDR per kilogram of the gross weight of the goods involved.
The Rotterdam Rules provide for the use of electronic transport records and documents as an improvement over the Hague Rules which take no cognizance of electronic documentation and e-commerce and over the Hamburg rules which cover telegram and telex.
The concept of the maritime performing party (MPP) is an innovation under the Rotterdam Rules. The MPP is a person other than the carrier who performs or undertakes to perform any of the carrier’s obligations during the period between the arrival of the goods at the port of loading of a ship and their departure from the port of discharge of a ship. The MPP, if the requirements of the Rotterdam Rules are met, is therefore subject to the same obligations and liabilities imposed on a carrier and may be liable with the latter for damage, loss or delay to the goods when the goods were in his custody or due to his actions.
Although the period within which legal action can be commenced under the Rules is the same 2 year period as the Hamburg Rules, other benefits of the Rules include the right of a party designated as the controlling party, to give or modify instructions concerning the goods e.g storage conditions or replace the person to take delivery of the goods.
The Rotterdam Rules were adopted by the General Assembly of the United Nations on 11th December, 2008, but have till date only been ratified by three countries (Spain, Togo and Congo), falling far short of the requirement of ratification by 20 countries before they can come into force.
For Nigeria, even after the Rules come into force, she must still go further to ratify the Rules and enact them as a national legislation before their provisions can be enforceable by Nigerian courts.
If indeed the 16 other African Countries, represented by their Shippers’ councils at the meeting of the Union of African Shippers’ Council (UASC) at its symposium late last year, and who agreed to ratify the Rotterdam Rules, follow through with their commitment, the Rotterdam rules will before long, come into force and Nigeria can take effective steps to end the Hague and Hamburg Rules era.