NIGERIA Law and Practice Contributed by: Adedoyin Afun and Michael Abiiba, Bloomfield LP
3.3 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 delivered within three days if the loss is not immediately evident, oth- erwise, this amounts to a 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 car - rier 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 dam - age 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 applicable to charterparties. However, where a bill of lading 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 liability of the carrier for loss resulting from dam - age 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
While Nigeria is not a party to the Hague-Visby Rules, it has ratified, but is yet to domesticate, the United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea, 2008 (the “Rotterdam Rules”); hence, it does not have force of law in Nigeria. 3.2 Title to Sue on a Bill of Lading Generally, only a party to a contract contained in a bill of lading can sue on it, that is, the carrier, shipper (consignor), consignee or the endorsee on the bill of lading. Unless endorsed as an endorsee, a notifying party is not a party to a contract contained in a bill of lading and lacks the locus standi to sue or institute an action on the bill of lading. Notwithstanding the foregoing, Nigerian law recognises some notable exceptions to these rules, including the Brandt v Liverpool doctrine, whereby the holder of the bill of lading can main - tain 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:
• takes delivery of the goods; • pays freight or demurrage; or • presents the bill of lading.
Nigeria recognises the assignment of right to sue, particularly in the context of insurance claims – subrogation. 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 insurer, provided that the subrogation is properly executed.
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