The Carriage of Goods by Sea Act B.E.2534

History
The Act was drafted by the Law Committee of the Maritime Promotion Office, Ministry of Communications. Its implementation had been pending for more than ten years until 1990, the government of His Excellency Prime Minister Anan Panyarachun reconsidered the draft Act and subsequently in 1991, the Thai National Legislative Assembly passed the Carriage of Goods by Sea Act B.E.2534. The Act is the first Thai Law directly dealing with the matter of carriage of goods by sea.

Before the implementation of the Act, the Thai Courts had applied the provisions of the Civil and Commercial Code in respect of carriage of goods, to the maritime disputes.

Although Thailand is not a signatory to any international conventions relating carriage of goods by sea i.e. Hague Rules, Hague Visby Rules or Hamburg Rules, some principles in those international Conventions were adopted in Thai COGSA particularly, it was mainly influenced by the provisions of Hamburg Rules.

Carriers
As influenced by Hamburg Rules, there are two kinds of the carrier under Thai COGSA, namely, the 'carrier' who enters into the contract of carriage of goods by sea with the shipper and the 'actual carrier' who does not enter into the carriage contract with the shipper, but has been entrusted by the carrier to carry the goods even for any part of the carriage under the contract.

Application
The Act shall compulsorily apply if one of the parties in the dispute is a Thai national or Thai entity. The Act neither apply to the carriage of goods within the Thai waters nor the carriage of goods under a charterparty.

Carriers' Liability
The carrier (including the 'actual carrier') is presumed by law to be liable for the loss, damage and delay in delivery of the goods, except where he can prove that such loss, damage or delay arose or resulted from the following causes:-

1. force majeure;
2. perils, dangers and accidents of the sea or navigable waters;
3. an act of war or a fighting between armed forces;
4. civil war, riots, subversion and civil commotions;
5. detention, arrest, restraint or any interference made against the ship by the ruler of any State or territory, or under provisions of law, provided that it is not caused by fault or neglect of the carrier;
6. quarantine restrictions;
7. strikes, lockouts, stoppage or intentional slowdown at any port which obstruct the loading and discharge of goods, or berthing or unberthing;
8. act of piracy;
9. fault of the shipper or consignee, particularly on insufficiency of packing or packing unsuitable for the condition of the goods and insufficiency or inadequacy of marks;
10. inherent vice;
11. latent defects of the ship not visible or discoverable by inspection with care and skill which can normally and properly be expected of a person engaged in an occupation of inspector of ships;
12. error in navigation arising from the fault of the pilot in discharging of his duties or from the pilot's instruction;
13. any other cause arising without fault or neglect or privity of the carrier or without fault or neglect of the agents or servants of the carrier.

Limitation of Liability
In case of damages resulting from loss of or damage to all or part of the goods, the liability of the carrier is limited to an amount of 10,000 baht per package or 30 baht per kilogramme of net weight of the goods, whichever is greater. As for damages resulting from delay in delivery of the goods, the liability of the carrier is limited to an amount equivalent to two and a half times of the freight payable to the goods delayed, but not exceeding the total freight payable under the contract.

Loss of Right to Limit Liability
If the loss or damage or delay in delivery occurred as a result of a negligence or a wrongful act of the carrier or his agents or servants, the carrier is not entitled to the benefit of the limitation of liability. The limitations are not applicable in the case where a higher limitation is stipulated in the bill of lading, or where the value of the goods has been declared to the carrier, or where the carrier fails to note in the bill of lading any particulars notified by the shipper, with the intent to deceive the consignee.

Time Limit
The claim for damages, loss or delay in delivery of goods is barred by prescription if no action or arbitration proceedings have been commenced or instituted within one year from the day the delivery of the goods to the consignees. However, the right to claim compensation for damages resulting from the delay in delivery of the goods ceases to exist if the consignee fails to give to the carrier a written notice within 60 days from the time of taking of the delivery of the goods. Before the expiration of the one-year time limit, the carrier may grant to the claimant a written time extension.

The above is only a short description, for an in depth analysis pleasecontact us: tpni@tpni.co.th
The information is prepared in cooperation with Pramuanchai Law Office.