CARRIAGE OF GOODS BY SEA ORDINANCE, 1928

CARRIAGE OF GOODS BY SEA ORDINANCE, 1928

No. 17 of 1928.

An Ordiltance to arnend the law with iespect to the carriage
of goods by, sea.
[28th December, 1928.]

1. This Ordinance may be cited as the Carriage of Goods
by Sea Ordinance, 1928.

2. Subject to the provisions of this Ordinance, the rules set
out in the Schedule hereto (hereinafter referred to as ' the
rules ') shall have effect in relation to and in connexion with
the carriage of goods by sea in ships carrying goods from any
port in the Colony to any other port whether in or outside the
Colony.

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

4. Every bill of lading or similar document of title issued
in the Colony which contains or is evidence of any contract to
which the rules apply shall contain an express statement that
it is to have effect subject to the provisions of the said rules as
applied by this Ordinance.

5. Article VI of the rules shall, in relation to the carriage
of goods by sea in ships carrying goods from any port in the
Colony to any other port in the Colony or to any port or place
in the province of Kwong Tung or in the province of Kwong
Sai or to Macao, have effect as though the said Article referred
to goods of any class instead of to particular goods and as
though the proviso to the second paragraph of the, said Article
were omitted.

6. Where under the custom 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 bill of lading, then, notwithstanding anything in
the rules, the bill of lading shall not be deemed to be prima facie
evidence against the carrier of the receipt of goods of the weigh
so inserted in the bill of lading and the accuracy thereof at th
time of shipment shall not be deemed to have been guaranteed
by the shipper.

7.-(1) Nothing in this Ordinance shall affect the operatior
of sectio'n iS of the Merchant Shipping Ordinance, 1899, or of
sections 446 to 450, both inclusive, 502 and 503 of the Merchan
Shipping Act, 1894, as amended by any subsequent enactment
or the operation of any other enactment for the time being in
force limiting the liability of the owners of seagoing vessels.

(2) The rules shall not by virtue of this Ordinance apply
to any contract for the carriage of gbods by sea made before the
31st day of December, 1928, nor to any bill of lading or similar
document of title issued in pursuance of any such contract as
aforesaid.

SCHEDULE. [s. 2.]

RULES RELATING TO BILLS OF LADING.

ARTICLE I.

Definitions.

In these rules the following expressions have the meanings hereby
assigned to them respeetively, that is to say---
(a) Carrier--- includes the owner or the charterer who enters
into a contract of carriace 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 sea, including
any bill of lading or any similar document as aforesaid issued under
or pursuant to a charterparty 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;

As amended by Law Rev. Ord., 1939, Supp. Sched.





(c) ' Goods ' includes goods, wares, merchandises 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 ised for the carriage of goods by
sea except-

(i) junks and motor boats as defined in section 2 of the Merchant
Shipping Ordinance, 1899, and

(ii) launches as defined in section 37 of the said Ordinance.

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

ARTICLE II.

Risks.

Subject to the provisions of Article VI, under every contract of
carriage of goods by sea 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 III.

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, handle, stow, carry, keep, care for and
discharge the goods carried.

3. After receiving the goods into his charge the earfier, 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
paragraph 3 (a), (b) and (c).

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 indernhify 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 he 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.

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.

In any event the carrier and the ship shall be discharged from all
liability in respect of loss or damage unless suit is brought within one
year after delivery of the goods or the date when the goods should
have been delivered.
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.

7. After the good 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 has previously taken up afiy document of title to such
goods lie 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 narnes 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 constitute 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 connexion 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 shnilar clause shall be deemed to be a
clause relieving the carrier from liability.

ARTICLF 1V.

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 aTother 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 III.

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 section.

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 sett or other navigable
waters;

(d) act of God;

(e) act of war;

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 pr 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 discov6rable by due diligence;

(q) any other cause arising without the actual fault or 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
infingemnet or breach of these rules or of the contract of carriage,
without the carrier shall not be liable for any loss or damage resulting
therefrorm.

5. Neither the earrier nor the ship shall in any event be or become
liable for any loss or damage to or in connexion with goods in an
amount exceeding 100 per package or unit or the equivalent of that
sum in other curreney, unless the nature and value of such goods
have been declared by the shipper before shipment find inserted in
the bill of lading.

This declaration if embodied in, the bill of lading shall be prima
facic evidence but shall not be binding or conclusive on the carrier.

By arrangement 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.
Neither the carrier nor the ship shall be responsible in any event
for loss or damage to or in connexion with goods if the nature or value
thereof has been knowinalv misstated 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 he 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
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 V.-

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 respon-
sibilities and liabilities under, the rules contained in any of these
Articles, provided such surrender or increase shali 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
charterparty 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 VI.

Special conditions,

Notwithstanding the provisions of tN preceding Articles, a carrier,
master, or hgent 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 resporisibibby 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 sea, 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 prdinary 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 VII.

Limitations on the application ofthe 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 connexion 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 VIII.

Limitation of liability.

The provisions of these rules shall not affect the rights and
obligations of the carrier under any enactment for the time being in
force relating to the limitation of the liability of owners of seagoing
vessels.

ARTICLE IX.

The monetary units mentioned in these rules are to be taken to be
gold value.

ARTICLE X.

The debtor shall have the right of discharging his debt in
Hong Kong currency according to the rate of exchange prevailing on
the day of the arrivil of the ship at the port of discharge of the goods
concerned.
[Originally No. 17 of 1928. Law Rev. Ord., 1939.] Short title. 14 & 15 Geo. 5, c. 22, s. 6 (1). Application of rules. 14 & 15 Geo. 5, c. 22, s. 1. Schedule. Absolute warranty of seaworthiness not to be implied in contracts to which rules appluy. 14 & 15 Geo. 5, c. 22, s. 2. Statement as to application of rules to be included in bills of lading. 14 & 15 Geo. 5, c. 22, s. 3. Modification of Article VI of rules in relation to local trade. 14 & 15 Geo. 5, c. 22, s. 4. Modification of rules 4 and 5 of Article III in relation to bulk cargoes. 14 & 15 Geo. 5, c. 22, s. 5. Saving and operation. 14 & 15 Geo. 5, c. 22, s. 6 (2), (3). Ordinance No. 10 of 1899. 57 & 58 Vict. c. 60. [Sched. contd.] [Sched. contd.] [Sched. contd.] [Sched. contd.] [Sched. contd.] [Sched. contd.]

[Originally No. 17 of 1928. Law Rev. Ord., 1939.] Short title. 14 & 15 Geo. 5, c. 22, s. 6 (1). Application of rules. 14 & 15 Geo. 5, c. 22, s. 1. Schedule. Absolute warranty of seaworthiness not to be implied in contracts to which rules appluy. 14 & 15 Geo. 5, c. 22, s. 2. Statement as to application of rules to be included in bills of lading. 14 & 15 Geo. 5, c. 22, s. 3. Modification of Article VI of rules in relation to local trade. 14 & 15 Geo. 5, c. 22, s. 4. Modification of rules 4 and 5 of Article III in relation to bulk cargoes. 14 & 15 Geo. 5, c. 22, s. 5. Saving and operation. 14 & 15 Geo. 5, c. 22, s. 6 (2), (3). Ordinance No. 10 of 1899. 57 & 58 Vict. c. 60. [Sched. contd.] [Sched. contd.] [Sched. contd.] [Sched. contd.] [Sched. contd.] [Sched. contd.]

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