REPUBLIC OF SENEGAL

One People - One Goal - One Faith

MINISTRY OF HIGHER EDUCATION, OF THE

RESEARCH AND INNOVATION
DIRECTORATE OF HIGHER EDUCATION
INSTITUTE OF MANAGEMENT

Final thesis
For obtaining the
Master's Degree in Business Law
Theme:

THE LIABILITY OF THE MARITIME CARRIER IN THE

INTERNATIONAL GOODS TRANSPORT CONTRACT

PRESENTED AND SUPPORTED BY:

Mouhamadou Moustapha Badiane FRAMER:

Mr. ADAMA MADIOR FALL

PhD student in law

Teacher-Researcher at the Virtual University of

Senegal and law professor at IMAN

ACADEMIC YEAR 2017 - 2018

 Dedications
To my mother with love,

To my Dad with affection,

To my brothers and sisters for the balance they convey to me,

To all the friends who have shown us their unwavering support.

 THANKS
Praise be to God, the Merciful, the Compassionate who, by His grace, has given us strength and
courage to be able to carry out this tedious and exciting work.

In compliance with the recognition requirements, we would like to thank all those who
spared no effort to contribute to the successful completion of this work. You
many of you have provided us with your technical or financial assistance.
Certainly, we cannot name all of you here, as the list would be too long. May all
These people receive our deep gratitude here.

Nevertheless, we particularly want to express our sincere thanks:

To Mr. ADAMA MADIOR FALL, our supervising professor for his

permanent availability throughout this work, his very valuable support and his
advice, despite his professional commitments. That he finds here our sincere
reconnaissance.

To our parents for their constant support.

Thank you all!

 SUMMARY
INTRODUCTION

FIRST PART: THEORETICAL AND METHODOLOGICAL FRAMEWORK……4

CHAPTER I: THEORETICAL FRAMEWORK...............................................5

Section 1 : Problématique……………………………………………………………...5
Section 2: Conceptual Study…………………………………………………………6
Section 3: the critical review of the literature.......................8

CHAPITRE II : CADRE METHODOLOGIQUE………………………………...10

Section 1 :les techniques d’investigation…………………………………………….10
Section 2: Difficulties encountered
SECOND PART: ANALYTICAL FRAMEWORK..........................12

CHAPTER I: PRINCIPLE OF CARRIER RESPONSIBILITY

MARITIME…………………………………………………………………………13
Section 1 : Fondement de la responsabilité du transporteur………………………….14
Section 2: Duration of the carrier's liability………………………………..19
CHAPTER II - THE IMPLEMENTATION OF RESPONSIBILITY OF
MARITIME CARRIER………………………………………………30
Section 1 : la limitation de la responsabilité…………………………………………30
Section 2: the action in liability…………………………………………………36

CONCLUSION……………………………………………………………………...45
 ACRONYMS AND ABBREVIATIONS

UNCITRAL United Nations Commission on International Trade Law

international
CMM Merchant Marine Code
COSEC Senegalese Shippers' Council
UNCTAD Conference of United Nations for Trade and
Development
COCC Civil and Commercial Obligations Code
CA Court of Appeal
DMF French maritime law
DTS Special Drawing Rights
IMF International Monetary Fund
JORS Official Journal of the Republic of Senegal
PAD Dakar Autonomous Port
PVD Developing country
Ro-Ro roll on - roll off
SOAEM West African Maritime Enterprises Company
UCCA Union of African Shippers' Councils1

1Wikipedia legal [Link]).

 INTRODUCTION
Trade exchanges between countries around the world are largely conducted through
maritime route. It is estimated today that at least 90% of all exchanges
commercial activities are carried out thanks to this maritime transport sector2.

This success is primarily based on the globalization of maritime transport.

and their technical evolution, but also on the realization and modernization of
port infrastructures and the quantities of goods that ships can
transporter.

The maritime transport activity involves moving goods from one port to another.
other by sea freight, is regulated by various texts from national sources and
International. The individual or entity that transports them is the carrier.
maritime. Such a movement is covered by a transport contract between the shipper.
(the agent) and the carrier.

The maritime transport contract for goods is the contract by which a person
named "carrier" agrees to transport people or
goods from one port to another, for a fee.

Thus, it is in the execution of the contract that a liability may arise.

carrier.

It is in this perspective that it would be appropriate to define a legal problem, namely:

Under what circumstances can the carrier's liability be engaged in

the international transport contract for goods by sea?

And it is this last element that will catch our attention, namely responsibility.
of the shipping carrier in the international goods transport contract by
maritime route.

Indeed, the maritime transport of goods evolves in a world of rules that

varies depending on the states involved in the operations they undertake. It all depends

2Wikipedia Free Encyclopedia

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on the ratification status of various international conventions by the States
involved in the transportation of goods.

The carrier will soon be subject to the rules of the Brussels Convention of the 25
August 1924 and its two amending protocols of 1968 and 1979, sometimes to those of
Hamburg from March 31, 1978, in effect on the 1sterNovember 1992.

The evolution of international maritime law greatly influences Senegal.

since it is a net importing country, meaning it imports more than it exports.
Senegal is located at the far west of the African continent. The country has 530
kilometers of coastline, thus representing an important maritime front to the west
the Atlantic. Due to its geographical position, Senegal has a port in Dakar and
benefits from an exceptionally advantageous geographical location, as it is situated at the very tip of the

advance of the West African coast. It is therefore a true crossroads for

numerous maritime routes between North America, Europe, Latin America and
the African continent; hence the slogan of the autonomous port of Dakar (PAD).

The PAD is the first deep-water port accessed by ships coming from the north and
the last port touched upon entry by ships coming from the south.

Like in France, it is noted in Senegal that provisions regarding law...

Maritime measures have been taken, there exists two types of texts: law number 62-32
from March 22, 1962 amended by the law of 22-2002 of August 16, 2002 concerning the Code of

Merchant Marine, regulating internal maritime transport and the rules of

Hamburg on the transport of goods by sea, regulating maritime transport
international.

The existence of a single law at the internal level means that Senegalese judges will resort to
under common law to resolve maritime disputes. The legal basis is established
the civil and commercial obligations code (COCC) and the maritime code
merchant (CMM) if it is an internal transport3.

Thus, the interest of our study will be to assess the responsibility of the maritime carrier.
in the international transport contract of goods, based on the rules

3IBRAHIMA KHALIL DIALLO The maritime litigation before the judge Tome I legal editions
African Dakar 1992 P 123

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from Hamburg that Senegal ratified by law n°86-11 of January 24, 1986 and came into
in force in 1992 thus regulating the maritime activities of Senegalese people in terms of
international.

The present study focuses on the responsibility of the maritime carrier; it will not address
no questions regarding common damages and issues arising from them
participation of intermediaries in the transport operation.

That being said, the study will focus on the substantive rules governing liability.
of the international maritime carrier, under the authority of the convention of
Hambourg.

To successfully carry out this work, we will successively address the theoretical framework and

methodological work (1erapart) and the analytical framework of responsibility

of the maritime carrier in the international transport contract of
merchandise (2thpart)

The teachings of this study lie in the fact that it allows to properly
understand the legal foundations in force at the international level and their stakes,
and to serve as a political foundation in terms of strategy and defense of interests
Africans in their intra and extra-community maritime exchanges.

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 FIRST PART
THE THEORETICAL FRAMEWORK AND

METHODOLOGICAL

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Precision and clarity are part of the rigor and requirements of the work.

CHAPTER I - THE THEORETICAL FRAMEWORK

We will talk here about the issue (section 1), about the clarification of concepts (section
2), and the critical review of the literature (section 3).

Section 1- Problématique

Maritime transport has been the means to discover and explore new continents.
from which new activities have developed and intensified
commercials.

Maritime transport has maintained its preeminence in the transport of goods, because
over long distances, it is sometimes the only available means. Today, most
Economic exchanges are carried out by maritime means.

Maritime transport is the movement of goods from a given port, which is the
loading port, to another port or unloading port. And the transport contract.
The maritime contract is concluded between the shipper and the maritime carrier.4.

The initiative for the Hamburg Convention comes from the intervention of UNCITRAL and
UNCTAD and at the request of developing countries (LDCs) in particular, the
countries of shippers who considered the Brussels convention as too favorable
to the carrier.

Like the Brussels Convention of 1924, the Hamburg rules define

the obligations and the responsibility of the carrier.

Thus, the carrier is responsible for the damages resulting from the harm.
and losses of goods as well as delays in delivery5.

It is in this perspective that it would be appropriate to identify a legal problem, namely:

Under what circumstances can the carrier's liability be engaged in

the international sea freight transport contract for goods?

In the following lines, we will attempt to provide answers to this question.

490% of global trade takes the maritime route.

5Article 5 paragraph 1 of the Hamburg Convention

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Section 2 - Conceptual Study

This document addresses the specificity of the liability of the maritime carrier in
the international transport contract for goods by sea.

The term 'responsibility' refers to the obligation to remedy harm resulting from,
either from the non-performance of a contract (contractual liability), or from the violation of
general duty not to cause any harm to others, by one’s own actions, or by the actions
things that we have custody of, or also due to the individuals we are accountable for
(delictual or quasi-delictual liability).

A "maritime freight carrier" is any person by whom or to

name of which a contract for the transport of goods by sea is concluded with a
carrier. Its function is to transport goods on behalf of others.
The 'particular damages': They are generally the damages on the
merchandise itself, which comes either from major events occurring during
of transport (shipwreck, road accident, derailment, etc.) or of events
regarding only the merchandise (fall, loss...)

The 'general averages': According to article 256 of the maritime commercial code the
common damages are intentional sacrifices and extraordinary expenses.
reasonably incurred for the common good in order to protect the good from a danger
engaged in the same maritime expedition.

A "substituted carrier" according to the terms of Article 1 (paragraph 2) of the rules of

Hamburg designates any person to whom the execution of the transport of goods is entrusted,
or a part of this transport, is entrusted by the carrier and must be understood
also any other person to whom this execution is entrusted. We find
an identical definition in the new CMM of Senegal from 2002 in its article 1
on the definitions. The CMM defines it as, any person to whom the execution of
transport of goods or part of this transport is entrusted by the carrier
and must also be understood by any other person to whom this execution is
entrusted.

The term 'marine transport contract' refers to any contract by which the
the carrier agrees, against payment of a price called 'freight', to transport
goods by sea from one port to another. The transport contract creates obligations.

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by each of the contracting parties, obligations the non-performance of which will result in
their responsibility.

The term 'bill of lading' refers to a document that serves as evidence of a contract for

transport by sea and noting the taking charge or boarding of the goods
by the carrier, as well as the commitment of the latter to deliver the goods
against the receipt of this document. Furthermore, this is therefore a document signed by the

carrier (shipping company) through which he acknowledges having received the goods and
then engages to deliver it in good condition. The bill of lading mentions; the name of the ship,
the name of the charger, the departure and arrival port, as well as all useful indications
on the goods. The shipper is responsible for the information stated on it. It is established
at least in duplicate, one for the charger and the other for the captain of the
ship. Generally, there are three copies. This commitment results from a
mention in the document stating that the goods must be delivered, either to
bearer, either to a named person, or to the order (generally to the order of a
bank).

« La marchandise», quant à elle, peut être définie comme tout bien qui peut faire
the object of a purchase and a sale. It is the Hamburg Convention that has considered the
living animals like merchandise because, on certain maritime "routes"
internationally, there is significant trafficking of live animals. Live animals
are often transported in special containers.

Goods can be transported in several ways: either by

palletization, either by containerization6Bulk goods do not need
to be packed for transport, we will refer to this case as transport in the white.

The concept of 'bulk' concerns all goods thrown away carelessly, and that we
to arrange later, or who can take a trip in the hold of a ship, without being
put into bags, barrels, or crates. Various types of bulk are distinguished: bulk
solids and liquid bulk.

Bulk solids include: cereals (rice, corn, sugar, coffee, cocoa, etc.) and ores.
(coal, clinker, bituminous coal…)

6Containerization is one of the visible aspects of the growth and globalization of trade.
international

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Liquid bulk consists of hydrocarbons (crude oil and derivatives), the
edible oils and fuel oils. Their transport often generates some
missing at destination.

In the event of a breakdown of the cold chain occurring during transport, the responsibility
the carrier is engaged. But in practice, it is a problem of proof that
is going to be a problem because the handlers have taken the bad habit of removing
the temperature discs before delivery.

Section 3 - critical review of the literature

For reasons of objectivity, it was necessary to emphasize the responsibility of

carrier. The field of maritime transport is indeed very vast and
complex, reflecting the extent of its domain.

In the context of this thesis, we have consulted various works on the

maritime transport among which we can enumerate:

Lamy transport Volume 2 from 1989.

Maritime Law by René RODIERE and Emmanuel Du PONTAVICE, 11th edition

1991.

Maritime Law by René RODIERE 9th edition 1982.

Maritime transport under bill of lading by Michel POURCELET 2002.

THE SHIPPER'S TRIBUNE bi-monthly of the Ivorian Office of Shippers

number 01* January-February 1994.

The innovations and legal consequences of the United Nations convention

United on the transport of goods by sea of March 30, 1978, called 'rules'
from Hamburg COSEC review.

The Hamburg Convention of 1978 and the Brussels Convention of 1924.

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Most of these works report on the obligations of the carrier in the contract.
of maritime transport of goods, of the principle of liability of
carrier, the release of the carrier, and finally the limitation of the
carrier's liability.

All of this indicates that the carrier's liability, in the contract of

internationaltransportofgoodsbyseamustbesubjectto
from a thorough study, given its complexity and relevance. In short, the recourse
This different works allowed to approach the question with objectivity and seriousness.

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CHAPTER II - METHODOLOGICAL FRAMEWORK

We address here investigation techniques (section 1) and the difficulties encountered.

during this exercise.

Section 1-Investigation Techniques

Given the specific nature of the subject, the documentary research was limited.
in consultation of works and research on the internet, in addition to the elements
theoretical topics covered in the training course.

As part of this documentary research, one of the focal points was the COSEC.
(Senegalese Shippers' Council) in Dakar has important tools for
research relevant to our field of investigation.

Moreover, it has been possible to consult websites, specialized journals, and books.
articles, texts of jurisprudence dealing with the subject matter and to proceed with
interviews.

Finally, for reasons of objectivity, it was necessary to focus on the responsibility of

carrier. The field of maritime transport is indeed very vast and complex,
the image of the extent of his domain.

In the context of this thesis, we have consulted various works on the

maritime transport.

Most of these works report on the obligations of the carrier in the contract of
maritime transport of goods, from the principle of carrier liability, of
the release of the carrier and finally the limitation of the carrier's liability.

All of this indicates that the responsibility of the carrier, in the transport contract
international goods by sea must be the subject of a study
in-depth, given its complexity and relevance. In short, the use of these different
Works have allowed for addressing the question with objectivity and seriousness.

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Section 2–Difficulties encountered

During the drafting of this thesis, several research efforts were undertaken to gather
the necessary information for its finalization.

Many difficulties in accessing sources of information (notably certain

sites) have not made the task easy.

The MAERSK LINE carrier's website is not easily accessible without a recommendation.
Nevertheless, it has been possible to gather very useful information thanks to the
understanding and the diligence of a staff member.

At the COSEC, on the other hand, it was relatively easy to access information and the
documents, which are very varied, provided that the structure has a center of
well-supplied documentation in all sorts of documents on maritime transport, that
one can only consult on site. It should also be noted that the COSEC provides
free photocopies for researchers and students.

In total, the difficulties that have marked the development of this research work did not us
were not discouraged. Isn't it said that he who knows how to search finds?

This is the place to thank all the organizations and individuals attentive to the importance of
our investigations.

The collections used have provided several compilations that allow for an overview
General liability of the carrier in the international transport contract
by sea freight.

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 SECOND PART

ANALYTICAL FRAMEWORK

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We will study here the principle of liability of the maritime carrier (chapter I)
before seeing the implementation of this responsibility (Chapter II).

CHAPTER I: PRINCIPLE OF LIABILITY OF

MARITIME CARRIER

The transportation of goods is covered by a transport contract between the shipper.

and the carrier.
The contract often varies according to the obligations imposed on the parties, it can be
to have either an obligation of means, meaning that the debtor does not commit to
a precise result, but to do everything necessary to fulfill its obligation; either
an obligation of result (the debtor in this case commits as its name
indicates to achieve a result, failing which they may be declared responsible.
Through the transport contract, each party commits to fulfilling its obligations.
the carrier undertakes, as far as it is concerned, to transport the goods from a
transferred to another, under the conditions required by the texts whether for a
internal transport only for international transport (example: obligation of care
appropriate...), it is a result obligation that weighs on the carrier.
freight shipping
The execution of the transport contract raises the issue of the legal situation of the
contracting parties, that is to say the obligations of the parties on one hand and the other.

part the responsibilities incurred by the parties due to their obligations.

As a result, when the carrier does not fulfill its obligations
contractual, he is supposed to be responsible.
And this contractual execution of the transport takes place within a period of time
determined. The transportation contract governs the relationships between the parties in

principle from the time of loading until unloading, but still

when the contract stipulates it, prior to loading and subsequent to
unloading until delivery to the recipient7.
The responsibility of the maritime carrier as it emerges from the conventions of
Brussels and Hamburg is that the carrier who undertakes must deliver to
destination and in good condition the goods that were entrusted to him. It therefore weighs on the

the carrier has an obligation of result and as soon as the result is not achieved, one can

7MICHEL POURCELET Maritime transport under bill of lading 1972 p.10

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assume the carrier responsible, by proving that the goods are not
not arrived at the destination, or that they were damaged, or that they have not
were delivered on time.

The carrier must also exercise due diligence to deliver in good condition the
merchandise.
It will be necessary to prove the fault of the carrier if he does not respect his obligations.

contractual. International agreements establish the system either on a

presumption of fault, or on a presumption of liability.
Furthermore, the maritime transport of goods has a duration that extends from
delivery support until delivery according to the Hamburg convention.
So, to properly address the principle of the carrier's liability, it would be
necessary to study its foundation (section 1) and its duration (section 2).
Section 1 - Foundation of Responsibility of
carrier

When the loader or the recipient proves to have suffered damage or a

In case of loss of goods, the carrier is declared responsible.
The charger is not required to prove the unlawful behavior of the carrier who
is presumed, by the mere fact of the occurrence of damage.
The obligation on the carrier is an obligation of result and, when
this result is not achieved, the carrier is declared responsible.
Thus, the carrier's liability is based on a presumption according to
which the goods have not been delivered to the recipient as they are
described in the bill of lading, he is the author of the damage, delay, and loss.
merchandise.
However, while the principle is simple, the question remains delicate to determine the
the nature of the presumption of liability that weighs on the carrier, since there is
different liability regimes of the carrier that vary according to the texts
internationals.
In this regard, the reading of the Brussels Convention and the convention of
Hamburg reveals a divergence of regimes.
The Brussels Convention opts for a presumption of liability, whereas
The Hamburg Convention adopts a presumption of fault or negligence.

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Moreover, it would be helpful to specify that the carrier is not always responsible,
In the case, there are situations where the carrier is released from all liability.
The Brussels Convention adopted seventeen exceptions whereas the convention
Hamburg has eliminated most of these cases and has only retained two.

Sub-section 1 - Analysis of the different liability regimes

of the carrier
Analyzing the different systems of liability involves determining the
different regimes of liability in the Hamburg Convention and in the
Brussels Convention. This establishes a presumption of liability.
(paragraph I) while that of Hamburg opted for a presumption of fault
(paragraph II).

PARAGRAPH I / Presumption of liability according to Brussels

In Article 4 paragraphs 1, 2 and 4 of the Brussels Convention, the carrier
is presumed responsible for the losses and damages caused to the transported goods.
Even in the case of doubt about the cause of the damage, loss, or deterioration, it remains

responsible8.
Furthermore, whenever a loss or damage has resulted from the unseaworthiness of the
ship, the burden of proof regarding the exercise of diligence
reasonable shall be incurred by the carrier or its employees or agents9.
To say that the carrier is fully liable means in a way
automatic, that he is responsible in case of damage or loss detected on the
goods at the unloading port or upon delivery into the hands of the
recipient.
Therefore, the right holder of the goods does not have to prove the fault of the
carrier, since their liability is automatically presumed as soon as
occurs a loss or damage. Even if the carrier is fully responsible
law, he has means that free him from all responsibility. These means are
called "exceptions" and there are seventeen of them. It is simply about
exonerating causes for the carrier.

8Article 4 of the Brussels Convention

9Article 4 paragraph 1 of the Brussels Convention

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These causes will allow the carrier to escape the presumption of
responsibility. And in the absence of one of these cases, responsibility remains.

In this sense, a decision of the Court of Cassation on March 4, 2003, was made.
rendered10It will therefore be his responsibility to prove that the damage or loss results from
one of the causes of exemption provided for by this agreement.
In summary, the carrier is fully responsible but when they prove that the
unfortunately, if the loss comes from one of the excluded cases, he is released from all
responsibility and will therefore not proceed to any compensation for the damage caused to the

merchandise.
Unlike the Brussels Convention, the Hamburg Convention provided for a
a liability regime quite different based on the presumption of fault.

PARAGRAPH II / Presumption of fault according to Hamburg

Unlike the Brussels Convention, which provides for a presumption of
responsibility of the maritime carrier, likely to fall when the
The carrier demonstrates the existence of one of the exceptions, the Hamburg Rules.
establishing a quite different system based on a presumption of guilt.
There must be a causal link between the fault and the damage. The presumption of
fault derived from Article 5 of the Hamburg Convention which states that:
the carrier is responsible for the damage resulting from loss or damage
increases due to the goods, as well as delays in delivery, if the event that has
caused the loss, damage or delay occurred while the goods
were under his custody (…), unless he proves that he himself, his agents
You representatives have taken all measures that could be reasonably taken.
required to prevent the event and its consequences.
This text therefore establishes the principle of the carrier's liability.
only based on a presumption of fault.
So, when there is proven fault, the carrier is declared responsible.
However, the carrier would indeed be exempt from the presumption of fault that would weigh upon them.

on him, reporting the only positive evidence of his due diligence.

When this diligence is established, the carrier will no longer have to prove that he is
not responsible. Therefore, it is no longer essential for a carrier

10Court of Cassation of March 4, 2003 ship NL Crete DMF 2003.1096

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to invoke a case exception. It will simply be enough for him to demonstrate that he has taken
the "reasonable measures" expected of him to be exempted.
Subsection 2 - The obligations of the carrier

Two main obligations will be highlighted: the traditional obligation of

care provision (paragraph I) and the obligation to deliver (paragraph II).

Paragraph I - The obligation to take care

The shipping carrier under transportation contract is obliged, in return for the freight,
to transport the goods to their destination within the agreed timeframe, following the
last mode of transport chosen. The carrier must during the period in which they have custody
to keep the merchandise in good condition, which implies fulfilling the obligations
listed in article 13.1 of the Rotterdam rules as follows:

The carrier, during the duration of its liability as defined in

Article 12 and subject to Article 26 of the Rotterdam rules, proceeds in a manner
appropriate and careful, at reception, during loading, handling, securing,
in the transport, custody, care, unloading and delivery of goods
»

This provision takes up the activities of the general obligation to provide care of the
Cargo of Article III (2) of the Hague/Hague-Visby Rules. The carrier is
you must keep the goods in the condition in which you received them11since its loading

until its delivery. These different activities related to the obligation of preservation of
The cargo corresponds to the duration of responsibility of the maritime carrier which
begins upon receipt of the cargo by the carrier or the executing party, and
is completed upon the effective delivery of the goods.

Therefore, this obligation applies to door-to-door transport, that is to say

that is to say it extends to all stages of the transport contract, even if not carried out
by sea.

The lack of care for the cargo engages the responsibility of the carrier and
constitutes an important element at the disposal of the applicant, which he uses to show

11Let us remember that when the carrier receives the goods, they must check their condition and make reservations.
if applicable.

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the true cause of the loss and to contradict the carrier's claims regarding it
absence of fault.

Let us recall that the assessment of this obligation, in light of case law
existing under the Brussels Convention, will be carried out under the new rules in
function of exercising due diligence12in relation to the nature of the
cargo transported, to the duration of the contractual voyage as well as to the nature of the ship and

of any other means of transport.

The carrier is required to load and unload the goods, in accordance with the
practices and usages particular to the nature of the cargo. On the other hand, if the
the transporter encounters difficulties during these operations, related to the nature of
the merchandise, he must call on experts to ensure the smooth progress of
these activities without exposing the cargo to any risk of damage.

Unlike the Brussels Convention where only the carrier has the obligation to
carry out loading, handling, securing, or unloading of
goods, Article 13.2 of the Rotterdam Rules offers the possibility for the parties to
transport contract of "agree that the loading, handling, securing or the
Unloading will be carried out by the loader, the document loader, or the recipient.
This agreement is mentioned in the contract data.

Paragraph II - the obligation of delivery

Article 11 of the Rotterdam Rules specifies that the delivery of the goods to
the recipient is an essential element in the execution of its obligations
related to the cargo. Let us recall that article 12.3 offers the parties the opportunity to
determine the duration of their transport contract by setting the time and place of the
receipt and delivery of goods.

On the other hand, in accordance with Article 43, if no explicit agreement has been reached
of the time and place of receipt or delivery, but that there are in this matter some
customs, practices, or usages of commerce at the place of destination, these
apply.
In the absence of an agreement on customs, practices, or applicable usage, the
consideration of the time and place of receipt or delivery where the goods

12Let us cite as an illustration the case of a cargo of salted fish in brine: Albacora v. Wescott

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are indeed taken on board or are indeed unloaded from the ship or
final vehicle in which they are transported.

It can sometimes happen that the delivery of the goods is irregular, that is to say
that the recipient does not have possession of the bill of lading, which is important
to ensure the regularity of delivery, the goods may be blocked or
requires parking fees at the recipient's expense.
It is for this purpose that the guarantee letter was created so that the goods can
to be released. The carrier who should impose an exchange (goods for
bill of lading) agrees to deliver nevertheless.
However, it requires the recipient to sign a guarantee letter by which he
subscribes (with his banker) to a formal commitment to cover him against all
claims that could be made against him by the legitimate bearer of the
bill of lading.
Section 2 - Duration of the liability of the maritime carrier

The determination of the start and end of the maritime transport operation is
important; since it is during this period that responsibility is determined
properly speaking of the carrier.

The question of the duration of the carrier's liability is to be examined,

in accordance with the interpretation of the provisions in the matter of the convention of
Hambourg 1978 concerning the maritime transport period.

Under Article 4(paragraph 1) of the Hamburg Rules, the liability of

the carrier covers the 'period during which the goods are under its care
at the loading port, during transportation, and at the unloading port.

Thus, it only starts to run from the taking charge of the goods.
in some place of the loading port and does not end until
the transport of the goods to the port of arrival, that is to say the delivery to
his/her recipient.
Thus, the duration of responsibility is an important element as it allows for
properly situate the responsibility of the carrier.

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To better examine all aspects of it, we will successively analyze the
criteria and the scope of the Hamburg Rules (subsection 1); then
the extent of the carrier's liability (subsection 2).
Subsection 1 - Criteria and scope of the Hamburg Rules
The criteria and scope, despite the few countries that have ratified it.13, are
relatively vast and have undergone an extension.
These Hamburg rules apply to the international transport of goods by
sea.
However, a contracting state may extend these rules to internal transports.14.
Thus, new areas of application that were excluded from the definition of
merchandise under the previous regime (Brussels Convention) are implemented,
namely the transport in bulk and the transport of live animals.
It is noted in the scope that it is not necessary for the transport
international trade of goods is carried out between two contracting states. It is enough
just that one of the states involved is a contracting party.

As a result, in the criteria and the scope of the Hamburg Rules, it

We will need to talk about the new areas governed by the Hamburg Convention.
(paragraphe I) et ensuite parler de ses critères d’application (paragraphe II).
PARAGRAPH I / New areas of application governed by the rules of
Hamburg
The Hamburg Rules cover a wide range of goods.
According to Article 1 (paragraph 5), the goods must also extend
to live animals when the goods are gathered in a container,
on a pallet or in a similar transport vehicle or when they are packaged.
And, they must also extend to equipment or packaging, if they are provided by
the charger.
The Hamburg Rules apply in particular to goods transported in
recovered, even if they are subject to a common law liability regime.
Indeed, to a large extent, live animals and the goods
Cargo transported on deck is subject to specific liability rules.

13The column of the bimonthly magazine of the Ivorian Office of Shippers 1994 P 31
14In the same place

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Goods transported on deck
They concern the goods transported on the ship's deck.
They are provided for by Article 9 of the Hamburg Convention in these terms: "the
The carrier is only authorized to transport the goods in bulk if this
transport is carried out in accordance with an agreement with the shipper or in accordance with usage

commerce considered, or if it is required by current regulations that is to say

the Brussels Convention (……). A transport carried out in the hold, unlike
an agreement expressly stating that the transport must be carried out in the hold is
considered as an act or omission of the carrier.
So, transshipment should not take place without the consent of the shipper.
must be mentioned in the bill of lading. Furthermore, the goods transported in
bridge are at much greater risk of damage or loss than the
cargo transported in the hold.
However, carriers must protect themselves against the risks of transportation in
inserted in the bill of lading clauses for which they establish
their obligation and their responsibility regarding the goods thus transported.
En cas de dommages et de pertes aux marchandises transportées en pontée, le
the charger must prove that the damage is not the result of a risk to
transport on the bridge, but results from a fault of the carrier or its agents.15
Bridge transport is explained by the fact, on one hand, of increased risks against
which they will want to protect (the charger and the carrier), and on the other hand, for
purely financial reasons.
The freight payable for the on-deck transport is lower than the freight for the transport in
scale.
The courts have often had the opportunity to rule on the importance of the
knowledge by the loader of transport in bridge.
Thus, the bridge transport as defined by Article 9 of the convention of
Hamburg must be done with the prior agreement of the shipper to be regular and
legally valid.
The other new criterion for applying the rules of Hamburg is transportation.
of living animals.

15Michel POURCELET: Maritime Transport in the Bill of Lading 1972 p.12

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Living animals
Living animals are now considered merchandise and are
often transported in special containers.

Like the transportation of goods on deck, live animals are also included.
in the definition of goods. This type of transport cannot take place without
the agreement of the loader and is only valid if the carrier establishes that it has complied
to the specific instructions of the latter.
However, the carrier is not responsible for losses or damages to the
merchandise unless these damages, losses, or delay result from a fault
or due to the negligence of the carrier, its agents or representatives
Furthermore, if nothing proves his fault or negligence or that of his agents or
agents, or if required by current regulations (for example:
transport of dangerous goods in bulk16), the carrier is not
responsible.
The mention must be made on the transport document by the carrier, otherwise the
the burden of proof will rest with him.

However, this irresponsibility of the carrier for the transport of live animals
was provided by Article 5 (paragraph 5) of the Hamburg Rules which states that 'in case
of living animals, the carrier is not responsible for losses, damages
or delays in delivery that are due to particular risks inherent to this kind
of transport.
If the carrier establishes that it has complied with the instructions regarding the
animals that were given to him by the loader, and that in the circumstances of fact
the loss, damage or delay can be attributed to these particular risks. The loss,
the damage or delay is presumed to have been caused in this way unless proven otherwise
that the loss, damage, or delay results in whole or in part from a fault or
from the negligence of the carrier, its employees or agents.
So, living animals are treated as merchandise; and their transport must
to comply with and follow the instructions of the loader. However, the loss or the
Damage does not engage the responsibility of the carrier unless it results from their
fault or negligence of its agents or representatives.

16Dangerous goods include more than 5000 substances involved: Materials

And explosive objects

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The scope of the Hamburg rules is very broad, and has a great
carried under their new criteria, namely bridge transport and animals
vivants. Et ily a autant d’aspects que nous tenterons d’aborder dans leur application
in time and in space.

PARAGRAPH II / Scope of application of the Hamburg rules

Under the scope of the Hamburg Rules, the transport contract must
present an international character. For example, in the case where transport is carried out
between Marseille and Dakar, which is the place of issuance of the bill of lading not related to the

Brussels Convention and that the unloading port of Dakar is a subject state
in Hamburg.
Then, the carrier's responsibility begins from the pickup.
until delivery from where the application in space.
It is these two points that we will try to clarify.
application in the Hamburg Rules space or territorial application
The territorial application of the Hamburg rules is very extensive. Article 2 (paragraph
1) from the convention in its provisions applies to all transports
international merchandise by sea. This provision provides for four possibilities
of the application of the Hamburg rules:
1: The loading or unloading port specified in the contract by sea is
located in a contracting State or
2: a discharge port mentioned in the transport contract that
the actual loading port is located in a contracting State or
3: the bill of lading or another document evidencing the contract is issued in
a contracting state or
4: the bill of lading or other document proving the transport contract provides
the application of the Hamburg rules or any national legislation giving effect
under the provisions of these rules." Indeed, these four possibilities are not
cumulatives.
So, it is not necessary for the transport international goods are
conducted between two contracting States. But it is enough that one of the States in question is

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a contracting state17However, when a ship departs from a French port where
Brussels is applying and must unload its goods in Senegal where
Hamburg applies, in the event of a dispute, which agreement will apply.
In case of loss or damage to the goods in a transport contract
maritime between Senegal and France, the Hamburg rules apply;
since in case of disputes at destination it is the Senegalese courts that are
competent because Senegal adhered to this convention.
Furthermore, Article 442 of the CMM of 2002 states that "the provisions of this
chapters apply to transport carried out from or to a port
Senegalese" in a chapter titled the contract for the transport of goods by
sea
Article 21 paragraph 1 of the Hamburg Convention provides for the shipper and the
the carrier the choice between the court of the country designated by the transport contract and
one of the following countries:

the country where the main establishment of the defendant is located or their residence
habitual
the place where the contract was concluded, provided that the defendant has a establishment there,
a branch or an agency, through which the contract was concluded.
Ultimately, the territorial application of the Hamburg rules concerns everyone
international maritime freight transport, when the transport concerns one
port located in a contracting state.
After the scope in space, there is an application in time.
Application over time of the Hamburg rules
The beginning and the end of the transportation of goods starts with the pick-up at the
delivery.
During this period when there is damage or loss to the goods or a
Delivery delay, the carrier is responsible.
Article 4 of the said agreement provides that the "transport of goods covers the
time elapsed from taking charge to delivery to its recipient or them
agents or representatives.

17Loader Tribune January-February 1994 p 31

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Thus, the maritime transport period begins with the handling of the hands.
from the charger and ends at the delivery port.
In this case, the Hamburg rules extend their application to
time and an extension of the period covered by the transport contract governed by
these rules18.

Furthermore, the Hamburg rules also stipulate the conditions under which the
the carrier will be considered as having taken charge of the goods and at which
the moment he delivers them to their recipient.

It follows from the terms of Article 4 that the carrier is responsible as long as
the goods are under his custody.
The drafters of the Hamburg Convention brought about a harmonization of the law
international transport of goods.
In conclusion, the criteria and scope of the Hamburg rules are
very broad and allow to situate the beginning and the end of responsibility of the
carrier, before defining the new areas of application.
After addressing the scope of the Hamburg convention, it would be
it is wise in a second point to examine the extent of responsibility of
carrier.
Subsection 2 - Scope of the carrier's liability
When the carrier operates within a specific framework, it is difficult
to imagine that their responsibility is not confined.
Indeed, the extent of the carrier's liability is largely dependent on the
specificities of each of the international regimes.
The Hamburg Convention places a number of obligations on the carrier.
of obligations, including the handling of the merchandise and the delivery to its
recipient.
It is at this moment that the responsibility of the carrier begins when
damage and loss to goods occur.
These are the two important elements of goods transportation that we
we will deal with.

18Innovations and legal consequences of the Hamburg rules, COSEC, 1994 p.4.

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PARAGRAPH I/ Handling of the merchandise
It is the act that is both material and legal by which the carrier takes in their
effective possession of the merchandise and accepts it for transportation.
In other words, it is the manifestation of will by which the carrier accepts
the merchandise for its transport.
Furthermore, it can be inferred that there is coverage as soon as the carrier
accepts the goods entrusted to him for transport.
This support is not related to any specific handling modality.
only acceptance by the carrier is equivalent to the application of the contract regime
transport.
The Hamburg Convention gives us a material definition of the concept.
Thus, the handling translates to the effective transfer of the goods to the
carrier's hands, thus preventing confusion with the handling
legal, which is just a formal transfer (by signature for example) while the
merchandise has not yet actually been handed over to the carrier; this may be
to raise a question of responsibility regarding who is accountable if the goods
damage occurred or is lost before its effective handover to the carrier,
merchandise not yet under its effective custody (of the carrier).
The acceptance is confirmed by the 'mate’s receipt' or the 'board receipt' which
receipt of the goods and are generally issued before the
bill of lading. But the takeover can occur before the delivery of these
documents.19
It is from this moment that the goods come under the care of the carrier.
Furthermore, the Hamburg Convention in its article 4 specifies that 'the goods
are deemed to be under the care of the carrier from the moment he
take care of hands :
i) the charger or a person acting on its behalf;
ii) from an authority or other third party to whom the goods must be delivered for
shipment in accordance with the laws and regulations applicable at the port of

unloading.

19Lamy transport volume 2 1989 p.156

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Or, les règles de Hambourg posent un problème en ce sens que la prise en charge de
the merchandise is not subject to any particular handling modality. The
The carrier's liability must also extend to the handling of the
merchandise until its delivery?

PARAGRAPH II / Delivery of the goods

The transport of goods ends with the delivery of the goods to its
recipient, their agents or representatives.
It is the legal and material operation by which the carrier delivers the
merchandise, object of the contract, to the rightful owner who accepts it. In other words, the contract

transport ends at the delivery of the goods which will no longer be under the
responsibility and risks of the carrier.
The Hamburg Convention defined delivery in its Article 4, paragraph 2 (b) as
specifying that the goods are deemed to be in the custody of the carrier
until the moment he makes the delivery:
i) by delivering the goods to the recipient or
ii) in cases where the recipient does not receive the goods from the carrier, in
making them available to the recipient in accordance with the contract or the laws and
to the commercial practices considered applicable to the unloading port.
iii) by handing over the goods to an authority or other third party to whom it must be
delivered in accordance with the applicable laws and regulations at the unloading port.
It is also necessary to add in case of apparent damage the receiver of
The merchandise must submit written reservations within twenty-four hours, for
avoid that the goods are presumed to have been received by him, in the state
described in the bill of lading (this case undermines the presumption of delivery
in accordance.
In case of non-visible damage, claims must be addressed within the
fifteen days.
It may sometimes happen that the delivery of the goods is irregular, that is to say
that the recipient does not have possession of the bill of lading, which is important
to ensure the consistency of delivery, the merchandise may be blocked or
requires parking fees at the recipient's expense.

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It is for this purpose that the guarantee letter was created so that the merchandise can
to be delivered. The carrier who should impose an exchange (goods for
bill of lading) agrees to deliver anyway.
But it requires the recipient to sign a letter of guarantee by which he
subscribed (with his banker) to a formal commitment to cover him against all
claims that may be made by the legitimate holder of it
bill of lading20.
The delivery of the goods is very complex, the case law has ruled.
by estimating that the shipping agent, who receives the goods at the unloading port
and who delivers it to a person who is not the right-holder and commits an offense
heavy assimilable to the dol engages personal responsibility towards the loader
(C.A Dakar n° 603 of JULY 1985 SOAEM c our DAKOTA Int. CORP...
Merchant Marine Code p. 709.
Thus, the handling and delivery of goods are crucial moments.
of transport, since they make it possible to determine when it starts
carrier's liability and when does it end?

In Senegal, the code of commercial maritime law reproduces article 4 paragraph 1 of the
Hamburg Convention but does not define like the French law of 1966 the
delivery and pickup concepts. Generally, Senegalese judges
apply the criterion of material support by the carrier and the
material delivery to the recipient classical definition.

Ultimately, the regime of liability of the maritime carrier

merchandise by sea has undergone significant changes since the advent of the
Hamburg Convention.
While the previous regime (Brussels Convention) established the presumption
of liability with seventeen cases of exemption, the Hamburg convention itself,
provides for a presumption of fault or negligence with the removal of the quasi-
totality of cases except for retaining only two, namely fire and assistance.

20
Innovations and legal consequences of the United Nations convention on transport of
goods transported by sea referred to as Hamburg Rules 1994 p19.

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From then on, a wide scope of application was established by the Hamburg convention.
with an extension of its scope to the transport of live animals and
to bridge transport. And the shipping contract for goods by sea extends to
the delivery handling.
So, unlike the Brussels Convention, we are witnessing an expansion of
transport contract for goods with Hamburg rules unfavorable to
chargers. Sometimes there is an extension of the basis of responsibility. Sometimes there
to an extension of the duration of the responsibility of the maritime carrier.
After a very thorough study of the principle of carrier liability
maritime in the first chapter, we will address in a second chapter the
limitation of liability of the maritime carrier.

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CHAPTER II - THE IMPLEMENTATION OF LIABILITY OF
MARITIME CARRIER
The carrier is indeed responsible for damages and losses to
goods entrusted to him. However, this responsibility is highly regulated.
and significantly limited (section 1). When there are damages, losses or damages, the
the carrier is obliged to repair them and a liability action can be initiated
by the rights holders (section 2).
Section 1 : la limitation de la responsabilité
Maritime transport law, like that of other modes of transportation,
set a ceiling on the carrier's compensation obligation.
This limitation was foreseen by the applicable texts, notably the convention of
Hamburg (international transport) and the code of the Senegalese merchant navy
(national transport).
The limitation of liability favors the carrier for losses.
damage to goods and delivery delays.
The Hamburg Convention has brought an interesting clarification by establishing a rule
that the limitations set forth by this agreement apply "to any action
against the carrier whether based on contractual liability,
culpable and that such action be open to the injured parties.
So, the limitation is the compensation for damages to goods characterized
by a non-integral repair system, for damages resulting from losses,
damage.
Senegal does not provide for any provisions regarding limitation, only Article 446.
of the CMM from 2002 concerning reserves states that 'If the reserve
intentionally omitted concerns a defect in the goods for which the carrier
knew or should have known at the time of signing the bill of lading, he will not be able to
cannot invoke the defect to evade its responsibility and will not benefit from it
limitation of liability provided for in Article 6 of the United Nations Convention
on the transport of goods by sea of 1978.
Moreover, notwithstanding the fact that in the Hamburg Convention the liability
is based on a presumption of fault, the said agreement also provided for
exemptions where the carrier can be released from all liability.

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Subsection 1: Exonerating causes provided for by the Hamburg Convention
Unlike the Brussels Convention which provides for seventeen excepted cases, the
The Hamburg Convention has proceeded to the removal of almost all cases.
except for only two to keep in mind: the fire and assistance.

The reduction in the number of cases is undoubtedly the most important change.
brought by the Hamburg rules.

Thus, the carrier benefits from a privilege that allows them to be exempt from their
responsibility in certain circumstances. These exemption cases reduce
considerably the responsibility of the carrier.

In Senegalese law, it has been retained under the regime of the Commercial Maritime Code of
1962, the same exemption cases as those of Brussels in 192421But, these cases
are today abandoned to make way for the cases provided for by the convention
Hamburg, which Senegal ratified in 1986, came into force on the 1st.
November 1992, which the Code of the Merchant Marine has now been inspired by.

In doing so, it is these two cases retained by the Hamburg Convention that are appropriate.
to examine.

PARAGRAPH I / Fire
Article 5 paragraph 4 (i) states that the carrier is responsible "for losses and"
damage to goods, delay in delivery caused by the fire if the
the claimant proves that the fire results from a fault or negligence of the
carrier, its employees or agents.

Thus, the fire is described by Article 5 paragraph 4 as the event to which the
The carrier enjoys, exceptionally, a presumption of irresponsibility.
the occurrence, unless proof of its fault or negligence, the fire is sufficient to absolve the
carrier of all responsibility. In this case, the fire is subject to a system based on
the proven fault. Furthermore, it would be wise to add that the Hamburg rules
specifies in its article 5 (b) that "if the applicant or the carrier wishes, a
an investigation will be conducted in accordance with the practice of maritime carriers in order to

21Senegalratified the Brussels Convention by law 77-118 on December 26, 1977 (Official Journal of
January 21, 1978 p.787S

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determine the cause and the circumstances of the fire and a copy of the report of
The expert will be made available to the carrier and the applicant upon request.

Thus, the fire is a mitigation of the carrier's liability and of which the
evidence allows the carrier to be exempted or released.

The other exempting case for the maritime carrier provided for by the convention of
Hamburg is the assistance.

PARAGRAPH II / Assistance

Article 5 paragraph (6) states that the carrier is not responsible 'except for the principle of'
common average, when the loss, damage or delay in delivery results from
measures taken to save human lives or reasonable measures taken to
saving property at sea.

The carrier enjoys a presumption of non-liability when undertaking

to assist or to save property or people. Assistance is a cause
exemption that releases the shipping carrier from all responsibility.

Consequently, the delay, loss, or damage due to the assistance exempts the
carrier.

In addition to firefighting and assistance, the transport of live animals must be added.
constitutes one of the great innovations of the Hamburg Convention that we will address
during the duration of the carrier's responsibility.

In conclusion, the liability of the maritime carrier is based on different

regimes that differ according to international texts.

Sometimes, there is a presumption of liability provided by Brussels with seventeen.

cases that release the carrier; sometimes a presumption of fault provided by
Hamburg with the removal of almost all cases except for the fire.
and assistance.

The carrier's liability, however, is exercised over a certain period that refers to
at the beginning and at the end of the time during which he was in charge of the goods
for its transport.

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Subsection 2: repair of damages and losses to goods
The repair of damages and losses to goods is capped and in
in no case can it exceed the amount set by the texts.
In Senegal, the merchant marine code of 1962 applied the regime of the
limitation of the Brussels Convention of 1924 and followed the numerous
modifications occurred. It was only after the adoption of the new code of the
Merchant Marine of 2002 Law No. 2002-22 of August 16, 2002 that Senegal has
henceforth apply the limitations set by the Hamburg rules.
The legal limit of liability applies per package or unit and per
kilogram (KG) of gross weight of lost or damaged goods.
These two modes of repair grant the charger or recipient rights.
different, depending on whether it is packages or units, or kilos, and will be subject to a
detailed study.
But it is already important to specify that the limitation of the repair by a
ceiling does not mean that the repair becomes flat-rate; it simply means
the amount that the judges will withhold or that the carrier will pay amicably
will not be able to exceed the ceiling set by the texts.
The reference monetary unit for calculating the limits is the SDR.22This
currency that replaced the Gold Franc or Poincaré Franc is calculated from the
average value of a basket of major currencies used in trade
international (Euro, Dollar, Pound Sterling, Yen, etc.). Depending on the rates of
The value of the SDR changes regularly.
However, one should not overlook the hypothesis of dealing with a non-member state.
of the IMF. This is where Article 26 (paragraph 3) makes complete sense, allowing in this
case of determining the limited amount in national currency.

Paragraph I: repair by parcel

The term 'package' refers to the goods individualized on the transport document and are
regarded as distinct entities with their own existence.

The packages must be delivered according to their number. It is a

obligation that falls on the carrier, his representative or his captain.

22Special drawing rights of the IMF (International Monetary Fund)

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According to René RODIERE, "the term package" is what the carrier takes.
specifically in charge. It is a cargo element individualized by markings
distinctives and is noted on the transport ticket23.

A package, in the professional language of transport, refers not only to a

small charge, but, any individualized charge as it is handed over to transportation and
thus accepted by it, regardless of its weight or volume.

The Hamburg Convention sets the limit of compensation at 835 SDR per package and per
loading unit.

By unit, it should be understood on the one hand as the object unit of transport, that is to say a good.

determined who does not have the characteristics of a package, which is therefore not wrapped
for example a tractor).

On the other hand, the unit is the basis for calculating or pricing the cost of transportation (freight).

When the bill of lading does not specify it, the term 'unit' refers to any object.
unwrapped.
We can illustrate the application of this first capping mode of compensation.
through the following example:
Let there be a batch of goods containing 275 numbered packages.
1 to 59. It is the package that will be retained and the calculation will be performed as follows: 59 X 835

DTS
There are 100 packages numbered from 1 to 100, weighing a total of 2 tons. Here we need to

consider that the carrier has taken charge of 100 packages and not 2 tons; the
tonnage not used for freight calculation. The repair ceiling
Calculate based on the number of packages, provided that the packages are
individualized in the bill of lading: 100 X 835 DTS.
The notion of parcel has, however, raised real difficulties with the emergence of
containers and pallets (phenomena of the notarization of shipments and
groupage).
Indeed, there is the issue of knowing whether the container or the pallet as a whole
must be considered as a package or unit, or if it is each package that contains it
container or pallet that should be considered as a package or unit.

23René RODIERE Maritime Law 11th edition, 1991

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The interest of this question lies in the fact that if the container or the pallet is
considered as a single package or unit, the repair ceilings are likely to be
insufficient to compensate for the damages suffered.

According to Article 6 paragraph 2 a) and b) of the HAMBOURG convention,

"When a container, a pallet, or any similar device is used to group

goods, is considered a package or other loading unit any
package or unit as indicated on the bill of lading, if a bill of lading is issued, or
otherwise in any other document proving the transport contract of
goods by sea that it is contained in this device. Outside the case provided for it
above, the goods contained in this vehicle are considered as a unit of
loading.
In other words, when a container, pallet, frame or other similar device is
used to group the goods, any package or unit listed on the bill of lading
as being included in this vehicle will be considered as a package or unit, in addition
the container itself considered as a distinct loading unit:
EXAMPLE: A container contains 205 packages, numbered from 1 to 205, weighing 6
Tons. At the destination port, the loss of the container is observed. The carrier
(205 + 1) x 835 DTS.

PARAGRAPH II / compensation by unit of account

This second mode of repair limits the liability of the carrier to
an amount equivalent to 2.5 SDR per kilogram of gross weight of the goods
damaged or lost.
For example, when 6 lots of cocoa beans weighing a total of 300 tons are
totally spoiled or lost during maritime transport, the calculation will take into account
the unit of loading or measurement that is indicated on the bill of lading at
to know in this case, the 'KG' and the limit will be: 300 tons x 1000 x 2.5 DTS.
When there is a 'delay in delivery', the carrier's liability is limited to
an amount equivalent to two and a half times the freight payable for the goods
having suffered the delay. And under no circumstances may this amount exceed the sum
total freight to be paid under the transportation contract.

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Finally, let us clarify that this is the highest amount in the two calculation methods.
from the limitation that will be retained for the benefit of the person whose goods have been
lost or damaged.

Section 2: the action for liability

In this section, we will look at the prescription of the action for liability against
the carrier (subsection 1) before concluding by explaining the conditions
of inadmissibility of this action (sub-section 2).

Subsection 1: the prescription of action against the maritime carrier according to

Article 20 of the Hamburg Convention

Any action related to the transport of goods by sea under this

the convention is prescribed if a judicial or arbitration procedure has not been initiated
within a period of 2 years.

The statute of limitations starts from the day the carrier delivered the goods.
or part of the goods, or when the goods have not been delivered, to
from the last day they should have been.24

The day indicated as the starting point of the statute of limitations is not included in
the deadline.

The person to whom a complaint has been addressed can at any time during the period
to extend this deadline by a declaration sent in writing to the author of the
claim.

The deadline may be extended again by one or more other declarations.

A recourse action by a person held liable may be exercised even after

the expiration of the statute of limitations provided in the previous paragraphs, if it is within
the time limit set by the law of the State where the proceedings are initiated. However, this time limit
will not be less than ninety days from the date on which the

24Article 20 of the Hamburg Convention

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the person who exercises the recourse action has settled the claim or has received it herself.

meaning of the assignment.

Article 20 of the Hamburg Rules of 1978 deals with the extinctive prescription of
In actions, extinctive prescription can be defined as the extinction of the action.
arising from an obligation by the expiration of the deadline assigned to the creditor to act.

The extinctive prescription thus causes the creditor who has remained a
certain times without asserting it.

The statute of limitations has an extinguishing role as it deprives an obligation of its sanction.

legal, and is justified by the fact that social peace implies the recognition of
acquired situations and relate the fact to the law.

It also punishes the negligence of the creditor. The prescription also plays a role.
provisional as it presumes the release of the debtor. It corresponds to
a practical necessity since, without the extinctive prescription, debtors would have to
indefinitely retain their payment titles to withstand the lawsuits from their
creditors.25

All these functions justify that the extinctive prescription is recognized and
regulated in Article 20 of the Hamburg Rules of 1978.

Article 20 deals with the duration of the extinctive prescription, the starting point of the time limit,
the calculation of the deadline, the extension of the deadline and recourse actions. We will
therefore address the statute of limitations (paragraph I): its duration and its calculation, before

to arrive at the extension of the deadline and the recourse actions (paragraph II).

Paragraph I: the statute of limitations: the calculation and the starting point

The duration of the statute of limitations is set at 2 years. Article 20 states indeed in its
first paragraph that all actions arising from the transport of goods by
May under the United Nations convention of 1978 be prescribed if a procedure
judicial or arbitration is not brought within a period of 2 years.

25DIALLO, I, K. Le contentieux maritime devant le juge, tome1, éditions juridiques africaines, Dakar,
1992.

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This deadline is clear in that the day indicated as the starting point is not
included in this timeframe and that of the agreement which did not leave the Senegalese courts
outside of any controversy.

Article 20 in its second paragraph of the Hamburg rules provides for two points.
possible start dates for the statute of limitations depending on whether the transported goods have
delivered or not by the carrier.

If the carrier has delivered all or part of the transported goods, the starting point
the deadline is the day of delivery26.

But when the carrier has delivered nothing, the starting point of the deadline is the last day.
where the goods should have been delivered. It may be the agreed timeframe or the timeframe
reasonable delivery time, as it may be determined by the judge.

As for paragraph 3 of article 20 of the Hamburg rules, it provides that the

the day indicated as the starting point of the limitation period is not included in the
two-year deadline.

This means that the statute of limitations starts to run the day after at zero.
Time of day set as the starting point.

So we can conclude that the prescription is fulfilled when the last day of the term
has expired.

Paragraph II: the extension of the deadline and recourse actions.

Article 20 paragraph 4 of the Hamburg Rules of 1978 provides that the specified day
as the starting point of the statute of limitations by a written agreement of the parties

interested.

The extension can also be renewed. This paragraph 4 of article 20 is a

derogation according to which the parties may extend the agreement by special convention
prescription period provided that it does not exceed the maximum period which constitutes the
statute of limitations.

Article 20 paragraph 5 of the Hamburg Rules of 1978 stipulates that the actions
recourse, that is to say the actions of a party held liable under the terms of the

26Article 20 paragraph 2 of the Hamburg Convention

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Convention of Nations of 1978 against another party that may be liable towards
they can be engaged even after the expiration of the two-year period referred to by the
first paragraph, when the action is exercised within the time frame set by domestic law of
country where the proceedings are initiated.

The party exercising a recourse action therefore has an additional deadline, after
the expiration of the 2-year period, set in accordance with domestic law, but which cannot be
less than 90 days from the date on which the person
who exercises the recourse action has repaired the damage or received notification of the summons
in justice.

Finally, one could say that Article 20 has remained silent on certain issues
important aspects related to extinctive prescription, notably the interruption and the
suspension of the prescription.

In the absence of international text, it is necessary to revert to common law which

however dealt with the suspension and interruption of the prescription, and this in order to
propose solutions to all problems in silence.

Subsection 2: the conditions of inadmissibility of the action for liability against

the maritime carrier according to the Senegalese commercial maritime code.

If the parties cannot resolve their dispute amicably, they will be forced to
settle this by initiating a liability action before the competent court
or before a referee or a panel of referees.27

The rights holder to the goods will then benefit from a purely positive element, given
the innovations introduced both by the commercial shipping code (CMM) and
by the Hamburg convention regarding deadlines for reservations or actions
judicial or arbitral and regarding the jurisdiction of the judicial courts or
of arbitration, to their clearer and more explicit formulations.

Nous allons donc examiner les modalités des réserves (paragraphe I) avant d'arriver à
the action for liability against the carrier (paragraph II).

27CARBONIER, J. Droit civil 4 les obligations, Paris, 1990.

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Paragraph I: the terms of the reserves.

The reserves express the applicant's dissatisfaction, moreover they must

prevent the birth of a presumption.

However, this presumption of compliant delivery could only be overturned if the

the recipient gives notice of loss or damage, including that resulting from a delay
upon delivery within the deadlines and in the required form.

According to the Hamburg Convention, the presumption of compliant delivery may be

contradicted by the contrary evidence which explains that the Hamburg convention was
less strict than the rules set out by the commercial maritime code (CMM).

The CMM only addresses partial losses and specific damages, which is how
The loss is said to be partial when there has not been a total loss of the goods, the quality.
evidence produced by the party that suffered the damage is related to the effectiveness of
the action for damages.

Furthermore, the person designated by the bill of lading as the recipient, as

the last endorser or as the recipient, is the only authorized to make these reservations.

These can be made by any injured party at the unloading port.

understood that the recipient, the handler or their representative thus releases themselves from any

responsibility to the detriment of the carrier.

Reservations must be made to a person authorized to receive them, namely the

person who ensured the transportation of the goods or their representative including
the shipper, the shipping agent, and the branch clerk under penalty
of inadmissibility of the action brought against the shipowner.28

29
If the bill of lading allows the captain to designate a handling company
you give him authority to do so, the reservations addressed to the stevedore on behalf of
The recipients are not opposed to the carrier.

In all scenarios, the unloading of the goods and their handover to the
The handing over by the handler or another competent authority does not mean actual delivery.

28Michel POURCELET maritime transport under bill of lading 1972 p.56

29The same place

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to the recipient: the carrier remains responsible as long as the goods are not
effectively delivered to the recipient.

As for the deadlines for reservations, they vary depending on whether it concerns the applicable text...
concerning the CMM or the Hamburg convention; and depending on whether it is a damage
apparent or non-apparent damage or damage resulting from a delay
upon delivery. This period is set at 8 days - public holidays not included from the date of
disposal effective of the merchandise to the entitled party, regardless of whether the damage is
apparent or not contrary to the position adopted by international conventions
and certain compared legislations (article 3 paragraph 6 of the Brussels Convention, Article
19 convention Hamburg.

This effective provision has several judicial interpretations.

due to the de facto and de jure monopoly that certain traders enjoyed.

The deadlines that the CMM or the agreement give to the recipient to formulate their
reserves start at the time of actual delivery or the issuance of the
merchandise or according to the expression of the CMM for the effective availability of
recipient. Therefore, the starting point of these deadlines, under Senegalese law, is different from
those of the Hamburg convention who opt for "taking delivery."

Paragraph II: The action for liability against the maritime carrier.

The provisions of the CMM are more stringent than those of the Hamburg Rules.
insofar as the absence or irregularity of reserves constitutes a termination of non-
to receive an action for liability.

However, the statute of limitations for the action for liability arising from the contract of
transport is very short compared to that provided for by the Hamburg rules and the project
of the law, which does not favor the position of the rights holders to the goods and their
subrogated insurers.

Prescription, as a procedural rule, helps determine the outcome of the dispute.

hence the deadline for the right to take action. In maritime law, this prescription is one of a

capital importance in that it helps to maintain a certain balance

between the interests at stake and above all to compensate for the consequences resulting from the

foundation of the carrier's liability.

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The statute of limitations for actions in liability arising from the transport contract
The statute of limitations for goods by sea is set in Senegalese law to one year from the date of arrival.

of the goods to the destination port. In case of non-arrival of the goods, this
short timeframe from the date it should have normally arrived there according to
at the CMM unless otherwise agreed30.

The prescription is interrupted by certain modes, including: the assignment to

justice even before an incompetent court. As a result, some difficulties
regarding the exact moment of this interruption and the effect of the summons by the
recipient with respect to the shipper may arise.

However, the acknowledgment of debts cannot lead to the interruption of the

prescription only when it is prior to the expiration of the limitation period and
that she is express.

This deadline is suspended for the entire duration of the event that puts the applicant
unable to act in accordance with the CMM. Among the reasons for suspension, we
can cite that of force majeure and whose proof rests with the recipient who has
found in the impossibility of acting within the time set by the prescription, one can cite
also the case of negotiations or transactions that took place between the
the carrier and the recipient and which do not offer any prospect of agreement
friendly. Therefore, the remaining duration of this period resumes from the end of this
event.

30See the Senegalese merchant marine code

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RECOMMENDATIONS

The weakness of African armaments, technological and structural changes, the

devaluation of the CFA franc, the contestation of African maritime policy, the
liberalization of maritime transport...; constitute as many factors that strike
hard hit the maritime sector. Despite its importance, maritime transport
would be doomed to sink and disappear as some people predict if
urgent measures are taken. In this regard, what would be appropriate would be to consider
appropriate solutions for the survival of our armament.

Providing solutions to a problem means proposing the conditions for eradication of the
causes at the root of the problem and this in line with the set objectives.
This is what we propose to do regarding the specific issues that
we have cleared.

Given the ship acquisition project, it is urgent that arrangements be made.

for the project not to be doomed to failure. To this end, we have made some
technical recommendations:

consult experts for a feasibility and profitability study of the projects;

designate one or two officials to continuously seek improvements

;

create a committee of administrators and users to determine the necessary measures

and ensure their execution;

strengthen the IT system of shipping companies;

mobilize and train all company staff on the new reforms in the
world of maritime transport;

revitalize the sales department and provide it with the means of policy,

Establish control indicators such as the dashboard, which is an instrument.

of performance measurement facilitating the management of one or more activities in the
framework of a progress approach. The dashboard helps reduce uncertainty and

Academic Year 2017/2018 Page43

facilitates the inherent risk of any decision. It is also an instrument
decision support.

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CONCLUSION
At the international level, the liability of the carrier of goods by sea is
far from being subject to a body of uniform rules. This responsibility of the carrier
international maritime law is governed by two texts: the Brussels rules (with
these two modifying protocols) and the rules of Hamburg.

Senegal ratified the Hamburg Convention in 1986, and this convention came into force
in effect in 1992. Its application is therefore mandatory when one is in its
scope of application, that is to say whenever a good is shipped or
arrived at a Senegalese port and when the user enters a Senegalese jurisdiction.

Thus, the foundation of the liability of the maritime carrier, liability related
inherently related to its obligations, varies depending on whether the convention is applied

Brussels or the Hamburg Convention.

As a result, the extent of the liability and the amount of compensation to which
the carrier will be condemned depends closely on the legal regime established by the
Hamburg Convention.

In principle, the shipper and the carrier are responsible to each other for
all losses or damages resulting from the non-fulfillment of their contractual obligations.
The carrier is under an obligation of result, and when it causes damage or
a loss, he will have to fix.

Furthermore, it is difficult to determine whether the damage caused by it to

merchandise, occurred during maritime transport and to place the blame on
carrier. However, the Hamburg Rules seem to address this issue.

The Hamburg Rules are an important asset in that they enshrine a

certain balance between the carrier and the shipper and the owner of the goods
transported.

But this agreement does not measure up to that of Brussels because it has not received
since its development, 32 ratifications, a figure representing half for
one hundred of the tonnage of the global fleet and do not include any major powers among them
maritime. Thus, the Hamburg rules are far from their primary objective which was to
replace the 1924 agreement in time.

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However, the standardization of the regime of liability of the maritime carrier
is a wish for a shared interest.

A unique international system of liability for maritime carriers

Goods are important for maritime transport operators and for management.
of international trade.

Furthermore, with the development of intermodal transport (container), of transport

Multimodal, the Hamburg Convention has shown its limitations in terms of transport.
of goods. This led to the advent of a new convention that is not
still in force, the Rotterdam Convention which incorporates a freedom
contractual and the modern concept of 'Door to Door'.

Senegal has adhered to the Rotterdam Convention, but has not yet ratified it.
The signing of the convention is a historic act for Africa which, for once, has
spoke with one voice31These Rotterdam rules should, in the near future,
replace the rules of Hamburg.

Regarding the African continent, it is about defending the interests of the operators
economic within the framework of the UCCA, vis-à-vis the major countries and the major
economic groups. But it will also be primarily about promoting exchanges
intra-community

On this subject, the decision-makers of the Shippers' Councils, members of the UCCA, all

private operators have created a dynamic for promoting intra-African trade

insofar as decision-makers can entrust exchange programs to the UCCA
of meetings and promotion of African operators and products.

In the age of globalization, the shipping industry cannot remain

to allow oneself to look bad by stubbornly rowing against the current.

Nearly a century after the signing of the Hamburg and Brussels conventions,
The time has come to provide the shipping industry with a uniform regime.
of the responsibility of the sea carrier of goods by sea, in order to reconcile
the various interests of these different stakeholders.

31Maritime World COSEC Pan-African review of COSEC new version February 2010.

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For Africans, the stakes of the implementation and ratification of the main rules
which govern, at the international level, the mechanisms of exchanges, are important. It
they will need to strengthen cooperation with all partners, whether they are
carriers and transport auxiliaries, public authorities, institutions
national, sub-regional, regional and international, simplification, facilitation
procedures and documents of foreign trade and, finally, the reduction of
the impact of transportation costs and ancillary costs on national economies.

Academic Year 2017/2018 Page47

BIBLIOGRAPHIC REFERENCES
1- Works
oBRUNAT, P. Lamy transport: Lamy S.A company, 155 Legendre Street
75017 Paris, volume 2, 1989
oCARBONIER, J. Civil law 4 obligations, Paris,
1990.
oDIALLO, I, K. The maritime litigation before the judge, volume 1,
African legal editions, Dakar, 1992.
oPOURCELET, M. Maritime transport under bill of lading, the
University of Montreal Press, 1972.
oRODIERE, R. et E., du PONTAVICE, Maritime Law, 11th ed.
Paris, Dalloz, 1991.

2-Articles
Innovations and legal consequences of the United Nations convention
Convention on the Carriage of Goods by Sea of March 30, 1978
say « Hamburg Rules, COSEC, Dakar, 1994.
Trainard Center seminar on September 6, 13, and 20, 2008, module
2 and 3
Loader's Tribune, bi-monthly of the Ivorian Office of Loaders,
Abidjan, 1994.

3-Laws and international conventions cited

International Convention for the Unification of Certain Rules in

bill of lading signed at Brussels, August 25, 1924
(Hague Rules)
United Nations Convention on the Carriage of Goods by
signed in Hamburg on March 31, 1978 (Hamburg rules)
Law No. 62-32 of March 22, 1962, concerning the Merchant Marine Code
Law No. 2002-22 of August 16, 2002 repealing the law of 1962
Law No. 77-118 of December 26, 1977, Official Journal of the Republic
from Senegal on January 21, 1978
Protocol amending the international convention for
the unification of certain rules regarding signed bills of lading
in Brussels on February 23, 1968 (Visby rules)
Protocol amending the international convention for
the unification of certain rules regarding bills of lading

Academic Year 2017/2018 Page48

4-WEBOGRAPHIES
[Link]
[Link]/ publications in Lamy transports
[Link]/ texts and codes French
[Link]/ texts and codes French
[Link]/articlesand publications on the
law of Francophonie
[Link]/collection of French case law
[Link]/publication of the Canadian Information Institute
legal
[Link]/Senegalese texts and codes
[Link]

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 ANNEXES
RATIFICATION AND ACCESSIONS TO THE BRUSSELS CONVENTION
August 25, 1924

ALGERIE, ALLEMAGNE, ANGOLA, ANTIGUA, ARGENTINE, ANGUILLA,

ASCENSION, AUSTRALIE, BAHAMAS, BARBADE, BELGIQUE, BELIZE,
BERMUDA, BOLIVIA, CAICOS AND TURK ISLANDS, CAMEROON, CEYLON
CHYPRE, COTE D'IVOIRE, CUBA, DANEMARK, DOMINIQUE, EGYPTE,
ECUADOR, SPAIN, MALAY STATES, FEDERATED, MALAY STATES, NO
["FEDERATES","UNITED STATES OF AMERICA","FIJI","FINLAND","FRANCE"]
GAMBIE, GIBRALTAR, GOA, GRANDE BRETAGNE, GRENADE,
GUERNESEY, GUINEE BISSAU, GUYANE, HONG KONG, HONGRIE, ILES
CAPE VERDE, CAYMAN ISLANDS, ISLE OF MAN, SAO TOME ISLANDS, ISLANDS
SAINTE HELENE, ILES SALOMON, ILES VIERGES BRITANNIQUES, IRAN,
IRELAND, NORTHERN IRELAND, ISRAEL, Italy.

United Nations Convention on the Carriage of Goods by Sea, 1978

(Hamburg Rules) came into force on November 1, 1992

AUTRICHE, BARBADE, BOTSWANA, BURKINA FASSO, BURUNDI,

CAMEROUN, CHILI, EGYPTE, GAMBIE, GEORGIE, GUINEE, HONGRIE,
JORDANIE, KENYA, LIBAN, LESOTHO, MALAWI, MAROC, NIGERIA,
PARAGUAY, SYRIAN ARAB REPUBLIC, CZECH REPUBLIC, UNITED REPUBLIC OF
TANZANIE, ROUMANIE, SAINT VINCENT ET LES GRENADINES,
SENEGAL, SIERRA LEONE, TUNISIE, OUGANDA, ZAMBIE.

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 TABLE OF CONTENTS
DEDICATIONS

THANKS

SUMMARY
Acronyms and Abbreviations

INTRODUCTION....................................................1
FIRST PART: THEORETICAL AND METHODOLOGICAL FRAMEWORK……….....4
CHAPTER I: THEORETICAL FRAMEWORK....................................................5

Section 1: Problematic……………………………………………………………...5
Section 2: Conceptual study.......................................................6

Section 3: critical review of the literature………………………………………………8

CHAPTER II: METHODOLOGICAL FRAMEWORK……………………………………10
Section 1: techniques d’investigation………………………………………………..10
Section 2: difficulties encountered...............................................11

SECOND PART: ANALYTICAL FRAMEWORK……………………………………..12

CHAPTER I: PRINCIPLE OF CARRIER LIABILITY
MARITIME................................................13
Section 1: foundation of the carrier's liability…………………14
Sub-section 1: analysis of the different liability regimes..................15
Paragraph I: Presumption of liability according to the Brussels Convention………15
Paragraph II: presumption of fault according to the Hamburg Convention............16

Subsection 2: the obligations of the carrier………………………………………17

Paragraph I: the obligation to take care..................................................17

Paragraph II: the obligation of delivery...........................................18

Section 2: duration of the carrier's liability…………………………………...19

Subsection 1: criteria and scope of application of the Hamburg rules……………20
Paragraph I: new areas of application governed by Hamburg.............20
-cargo transported on deck..........................................................21

-living animals..................................................................22

Paragraph II: scope of application of the Hamburg rules..........................23

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-application in time…………………………………………………………….23
-application in space.........................................................24
Subsection 2: scope of the carrier's liability………………………...25
Paragraph I: handling of the goods……………………………………..26
Paragraph II: delivery of the goods...........................................................27

CHAPTER II: THE IMPLEMENTATION OF RESPONSIBILITY OF

MARITIME CARRIER……………………………………………………..30
Section 1 :la limitation de la responsabilité…………………………………………...30
Subsection 1: causes of exemption for the carrier according to the convention
Hamburg..........................................................31
Paragraph I: fire.............................................................31

Paragraph II: assistance……………………………………………………………..32

Sub-section 2: repair of damages and losses to goods……………..33
Paragraph I: parcel repair ............................................................. 33

Paragraph II: compensation by unit of account..........................35

Section 2: action for liability…………………………………………………36

Subsection 1: The statute of limitations for action against the maritime carrier according to the article

20 of the Hamburg Convention

Paragraph I: the statute of limitations: the calculation and the starting point..................37

Paragraph II: the extension of the deadline and recourse actions..........................38

Sub-section 2: the conditions for inadmissibility of the liability action against the
maritime carrier according to the Senegalese commercial maritime code............39
Paragraph I: the terms of the reserves...........................................................40

Paragraph II: the action for liability against the maritime carrier……………41
RECOMMENDATIONS..........................................................43
CONCLUSION………………………………………………………………………45
BIBLIOGRAPHIC REFERENCES…………………………………………….48
ANNEXES......................................................................50
TABLE OF CONTENTS………………………………………………………….51

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