Lloyd's Maritime and Commercial Law Quarterly
THE NEW CARRIAGE OF GOODS BY SEA ACT IN SOUTH AFRICA
Hilton Staniland*
1. Introduction
On 4 July 1986 the Carriage of Goods by Sea Act 1 of 1986 (“the Act”) came into operation in South Africa.1 The Act repealed2 and replaced ss. 307–311 (Chapter VIII) of the Merchant Shipping Act 57 of 1951 by the introduction, in separate legislative form, of the Hague Rules relating to the Carriage of Goods by Sea contained in the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading signed at Brussels on 25 August 1924 and as amended by the Protocol of 23 February 1968 (the Hague-Visby Rules). The unamended Hague Rules had previously formed part of the provisions of Chapter VIII of the Merchant Shipping Act 1951 which has now been repealed. Since many readers of this Quarterly will be familiar with the implementation of both the Hague and Hague-Visby Rules in English law,3 this note will be confined to a commentary upon the South African Act, which has incorporated the Hague-Visby Rules by means of a Schedule. And, because the Act has been modelled, to some extent, upon the English Carriage of Goods by Sea Act 1971 discussion will be further restricted mostly to those South African provisions which have no identical English counterpart.
2. The scope of the application of the Hague-Visby Rules
The application of Chapter VIII of the Merchant Shipping Act 1951 had, by virtue of s. 307(1) of that Act, been confined to “the carriage of goods by sea in ships carrying goods from any port in the Republic to any other port whether in or outside the Republic”. The 1986 Act has substantially extended the application of South African law incorporating the Hague-Visby Rules with regard to the carriage of goods by sea. Section 1(1) of the Act provides that the Hague-Visby Rules as set out in the Schedule to the Act shall:
subject to the provisions of this Act, have the force of law and apply in respect of the Republic in relation to and in connection with-
- (a) the carriage of goods by sea in ships where the port of shipment is a port in the Republic, whether or not the carriage is between ports in two different States within the meaning of Article X of the Rules;
- (b) any bill of lading if the contract contained in or evidenced by it expressly provides that the Rules shall govern the contract;
- (c) any receipt which is a non-negotiable document marked as such if the contract contained in it or evidenced by it or pursuant to which it is issued is a contract for the carriage of goods by sea which expressly provides that the Rules are to govern the contract as if the receipt were a bill of lading, but subject to any necessary modifications and in particular with the omission in Article III of the Rules of the second sentence of paragraph 4 and paragraph 7; and
- (d) deck cargo or live animals, if and in so far as the contract contained in or evidenced by a bill of lading or receipt referred to in paragraph (b) or (c) applies to deck cargo or live animals, as if Article 1(c) of the Rules did not exclude deck cargo and live animals, and in this paragraph “deck cargo” means cargo which by the contract of carriage is stated as being carried on deck and is so carried.
* University of Natal, Durban
1. S. 6 of the Act provides that the Act shall come into operation on a date fixed by the State President by Proclamation in the Gazette. This was done in terms of Government Notice 101, 1986, G G 10269, 13 June 1986.
2. In terms of s. 5 of the Act.
3. See, for example, Antony Diamond “The Hague-Visby Rules” [1978] 2 LMCLQ 225.
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