NIGERIA Law and Practice Contributed by: Adedoyin Afun and Michael Abiiba, Bloomfield LP
Notwithstanding, Nigerian law recognises some nota - ble exceptions to these rules, including the Brandt v Liverpool doctrine, whereby the holder of the bill of lading can maintain an action at common law, where the court is able to infer or imply a contract on the bill of lading terms between the holder and the carrier, in circumstances where the holder:
is issued pursuant to a charterparty, the provisions of the Hamburg Rules shall apply to that bill of lading if it governs the relations between the carrier and the holder of the bill of lading who is not the charterer. Pursuant to Article 6 of the Hamburg Rules, the lia - bility of the carrier for loss resulting from damage to goods is limited to an amount equivalent to 835 units of account per package or other shipping unit or 2.5 units of account per kilogram of gross weight of the goods lost or damaged, whichever is the higher. According to Article 26 of the Hamburg Rules, the unit of account is the Special Drawing Right, as defined by the International Monetary Fund converted into the Nigerian naira at the date of the judgment, unless oth - erwise agreed by the parties. However, Section 354 of the MSA states that the limi - tation of liability will not apply where it is proved that the loss or damage resulted from the ship-owner’s, or its servants’ or agents’, personal act or omission or the act or omission of their servants or agents acting within the scope of their employment, committed with the intent to cause that loss or damage or recklessly and with knowledge that such a loss would probably result. There will be no difference in the liability of the ship- owner for cargo damage where it is the actual carrier or the contractual carrier. Article 2 of the Hamburg Rules states that the basis of liability and limitation of liability apply to both the contractual carrier and the actual carrier. Article 10 of the Hamburg Rules further states that, where the contractual carrier engages an actual carrier, the contractual carrier remains liable. 4.4 Misdeclaration of Cargo The carrier may maintain a claim against the ship - per for misdeclaration of dangerous goods. Section 322 (2) of the MSA requires a shipper to mark dan - gerous goods distinctly, with details of the nature of the goods on the outside of the outermost package containing the goods, and the shipper must first give written notice of the nature of the goods, and of the name and address of the sender, to the master or owner of the ship.
• takes delivery of the goods; • pays freight or demurrage; or • presents the bill of lading.
Nigeria recognises the assignment of the right to sue, particularly in the context of insurance claims – subro - gation. In the context of a bill of lading, the right to sue for breach of contract or damages can be assigned to a third party, such as the holder of the bill or the insur - er, provided that the subrogation is properly executed. 4.3 Ship-Owners’ Liability and Limitation of Liability for Cargo Damages Pursuant to Article 3 Rule 6 of the Hague Rules, in a claim for liabilities against cargo damage, written notice of loss or damage to cargo must be made to the carrier at the port of discharge either before or at the time the person entitled to delivery of the goods takes custody of the items. The notice must be deliv - ered within three days if the loss is not immediately evident, otherwise, this amounts to conclusive proof that the carrier delivered the items according to the bill of lading. Pursuant to Article 5 of the Hamburg Rules, a ship- owner who is the contractual or actual carrier is liable for loss resulting from damage to the goods, if the occurrence that caused the loss, damage or delay took place while the goods were in its charge, unless it can be proven that the ship-owner, its servants and agents took all measures that could reasonably be required to avoid the occurrence and the consequent damage to the goods. In the case of damage caused by fire, the ship-owner who is the contractual or actual carrier will be liable if it is proven that the fire arose from the fault or neglect of the ship-owner, its servants or its agents. The provisions of the Hamburg Rules are not applica - ble to charterparties. However, where a bill of lading
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