1. THE STATUS OF THE INTERNATIONALCONVENTION FOR THE UNIFICATION OF CERTAIN
RULES RELATING TO BILLS OF LADING 1924 IN NIGERIA, VIS-À-VIS THE UNITED NATIONS
CONVENTION ON THE CARRIAGE OF GOODS BYSEA (RATIFICATION AND ENFORCEMENT)
ACT, CAP. U18 LAWS OF THE FEDERATION OF NIGERIA 2004
By Nnagozie Azih*
I was recently involved in a matter atthe Federal High CourtofNigeria wherein the Defendants
challenged the competenceofthe suit on the ground thatsame was time/statute barred placing
reliance on the relevantclause in the bill of lading pursuantto which the Plaintiff’s goods were carried
which stipulated a 12 month limitation period and also on Article 3 Rule 6 of The International
Convention for the Unification of Certain Rules Relating to Bills of Lading 1924 (TheHague Rules)
which stipulates a limitation period ofone year.
The Plaintiff in opposing the challenge to the competenceofthe suit, relied on Article 20 (1) of The
United Nations Convention on the Carriage ofGoods by Sea as domesticated by The United Nations
Convention on the Carriage ofGoods by Sea (Ratification and Enforcement) Act, Cap. U18 LFN 2004
which stipulates a limitation period oftwo years.
The Plaintiff contended thatthe twelve months limitation period providedfor in the bill of lading contract
could notoverride the two years statutorily provided for in the HamburgRules and thatthe Hamburg
Rules being later in time should override the provisions ofthe Hague Rules. The Defendants on the
other hand contended thatin the absence ofany express repeal ofThe Hague Rulesin the aforesaid
Cap. U18, it could be said that Nigeria operated the two regimesside by side and thatparties to a bill
of lading contractwere free to choose either ofthe two regimes to governtheir contract.
The Courtin finding the action time barred held inter alia as follows:
“…the refuge sought by the Plaintiff/Respondent on the provisions of Article 20…of the United
Nations Convention on the Carriage of Goods by Sea (Ratification and Enforcement) Act, 2005 is
also not helpful to its case. This is because parties to a contract are deemed to have voluntarily
entered into it and therefore bound by its terms. Where the contract is reduced into writing, it is that
document that invariably constitutes the guide to its interpretation and the parties will not be
allowed to read into such contract terms upon which they reached no agreement and thus not
forming part of the contract…The contract between the parties upon which the Consignee’s goods
were carried on board the vessel…is as embodied in the provisions of…the Bill of Lading …and
they are bound by the terms and conditions therein contained…. I therefore find and hold that the
Plaintiff/Respondent’s suit was caught by the one year statutory limitation as provided for in
Clause…of the Bill of Lading…having not been instituted within twelve (12) months limitation
period as contracted…”

2. The Court, by the above decision effectively held that the express provisionsofparties’ contractas
embodied in a bill oflading would override the express provisions ofa statute on the same subject.
This article intends to briefly discuss the implications ofthe above decision ofthe Federal High Courtin
two respects, namely:
1. Whether the provisions ofthe Hague Rules can still validly apply to inward voyages into Nigeria
in view of the domestication ofthe Hamburg Rules in 2005vide an Actof the National
Assembly.
2. Whether an agreementembodied in a bill oflading which runs afoul of the provisions ofa
domesticated International Convention can be upheld atthe expense ofthe express provisions
of the Convention.
The first question raised above warrants a discussionon the status of the Hague Rules as applicable in
Nigeria today. It needs be pointed outthat the Defendant in the case under reference in proffering
arguments in supportofthe continued applicability ofthe Hague Rules relied heavily on the decisionof
the SupremeCourtin JFS INVESTMENT LTD. V. BRAWAL LINE LTD.(2010) 18 NWLR(PART
1225) 495.
One of the issues that arose for determination in JFS’ case was whether the Courtof Appeal ought to
have resorted to The HagueRules 1924in determining the period of limitation applicable in the suit. In
answering that question in the affirmative, the Courtat Page 530 asserted the compulsory applicability
of the Hague Rules to outward voyages from Nigeria as a matter ofstatute by virtue of their
incorporation into the Carriage ofGoods by Sea Act(COGSA) and then held that in cases of inward
voyages into Nigeria, the Hague Rules became applicableas a matter ofagreementusually by
incorporation into the bill of lading and that where this is done, the effect is that the contractof carriage
operates between the carrier and consignee subjectto the Rules. Again, the Courtfound that in
jurisdictions where The Hague Rules haveforce oflaw, it is immaterial whether or not a bill of lading
incorporates them as they apply to all bills of lading by virtue of the law. Thatin any transaction where
the COGSA and The Hague Rules apply,itis not permitted to contract out of the obligations imposed.
Pronouncing further on the status of the Hague Rules, the Courtheld at Page 535 ofthe Reportthat
“…at the Nigeria Independence the Government of the Federation assumed all obligations and
responsibilities of the colonial regime…which arose from valid international instruments such as
the Hague Rules, 1924. Nigeria became party through exchange of letters between Hague, the
United Kingdom and the Government of Nigeria on October 1, 1960. The Hague Rules was extended
to Nigeria as a legislation which formed part of our laws after independence. It does not require any
further ratification… before it can be applicable. In other words, The Hague Rules 1924, having
assumed the force of law in Nigeria – thereby an existing law must be deemed to be an Act of the
National Assembly by virtue of sections 274(1) and 277 of the 1979 Constitution. In short, Abacha’s

3. and Higg’s cases cited are applicable to all post 1979 treaties or conventions which would need to
be enacted to become part of our municipal laws, but surely this is not applicable to Pre 1960
treaties and conventions….an international agreement embodied in a convention such as Hague
Rules is autonomous and above domestic legislation of the subscribing countries and the
provisions cannot be suspended or interrupted even by the agreement of the parties. The position
is that the Hague Rules apply to inward carriage of good by sea contracts from another Country
into Nigeria…”
From the foregoing holdingofthe Supreme Courtin JFS, one can safely conclude thatthe Hague
Rules compulsorily applied in Nigeriato both inward and outward carriages by sea. Itis, however, of
utmostimportanceto stress that the transaction that gave rise to JFS’ case happened in 1992whilst
the suit was instituted in 1995 and determinedby the Courtof first instance in 1996.
Without in any way faulting the decision ofthe Supreme Courtin JFS, which is notthe purpose ofthis
article, it is respectfully my view that the domestication ofthe HamburgRules by the National Assembly
in 2005 radically altered the status of the Hague Rules in Nigeria. Although a prior statute, in the
absence ofexpress words ofrepeal, may notby implication be repealed by a latter statute on the same
subjectmatter, it is, however, posited that the provisions and circumstances ofthe Act domesticating
the Hamburg Rules is such thatit cannotbut be argued thatit was meantto suspend the applicability
of the Hague Rules in Nigeria. From everyindication, the primary purposeofthe HamburgRules was
to improve on the provisions ofthe Hague Rules and replacethem as the Rules governing carriageof
goods by sea amongstthe contracting States thereto. There is therefore no basis for arguing the
survival ofthe Hague Rules in Nigeria after the domestication ofthe Hamburg Rules in 2005. Support
is lent to the foregoing position by the provisions ofSection 1 of the Act in the following terms:
As from the commencement of this Act, the provisions of the United Nations Convention on
Carriage of Goods by Sea which are set out in the Schedule to this Act shall, subject as there under
provided, have force of law and shall be given full recognition and effect and be applied by all
authorities and persons exercising legislative, executive and judicial powers in the Federal
Republic of Nigeria.
From the above provisions ofSection 1 of the Act, it is clear that the Act subjects the provisions ofthe
HamburgRules only to the Rules themselves andnotto any other prior existing law and is meantto be
given full recognition and effect. It is further submitted thatit will be absurd to argue thatthe relatively
conflicting provisions ofboth sets of Rules (i.e. The Hague Rulesand TheHamburgRules) can
continue to have force of law pari passu. See IBIDAPO .V. LUFTHANSA AIRLINES (1997)4 NWLR
(PART 498) 124 AT 163 PARAS. E-F wherein the SupremeCourtheld that “Where it is intendedto
repeal a legislation, this shouldbe expresslyso statedas theCourtsgenerallyleanagainst
implying the repeal ofan existing legislation unlessthere exists clear proofto the
contrary….TheCourt will not implya repeal unless twoActs are so plainly repugnantto each
other that effectcannot be givento eachother at thesame time.”(Underlining minefor emphasis)

4. Having said that Cap. U18 has given full recognition, effect, force and application to the Hamburg
Rules, it is now necessary to consider some provisionsofthe Rules which supportthe argumentthat
they were meantto repeal the prior existing Hague Rules.
By Article 2 (1) (a) and (b), the provisions ofthe Convention are applicable to all contractsof carriage
by sea betweentwodifferent States if theport ofloading or the port of discharge as provided
for in the contractof carriage by seais locatedin a ContractingState.
The provisions ofArticle 25, particularly subparagraph 5 to the effect that nothingcontainedin this
Conventionprevents a ContractingStatefrom applyingany other international convention
which is already in force at thedate of this Conventionandwhich appliesmandatorily to
contracts ofcarriageof goods primarilyby a mode of transport other thantransport by sea…
can also be argued to imply thatContracting States are prevented from applyingany other international
convention which applied mandatorily to contracts of carriage ofgoods by sea. This, in Nigeria’s case,
cannotbut refer to the Hague Rules. (Underlining minefor emphasis)
Finally, Article 31 specifically imposed an obligation on every contracting state to, within a maximum
period offive years upon becoming a contracting state, specifically denounce the Hague Rules andits
1968 Visby Protocols if it were a party to those Rules.
Regarding the 2nd question raised hereinabove i.e., whether an agreement embodied in a bill of lading
which runs afoul of the provisions of a domesticated International Convention can be upheld at the
expense of the expressprovisions of the Convention, itis my position thatalthough parties to a
contractare free to choose the law to govern their contractand the Courtwould be bound to respect
that choice madeby the parties, thatchoice must, however, conform to public policy before itcan be
given effect. Accordingly, itis posited that a term in a bill of lading incorporating The Hague Rulesas
the compulsorily applicablelawmakes nonsense ofand effectively jettisons the provisions ofthe
HamburgRules which Nigeria has domesticated andmadecompulsorily applicable to contracts of
carriage ofgood by sea. Such a situation would definitely constitute an absurd affronton public policy
and should notbe allowed to stand. For the same reasons, any other provisions in a bill oflading or
other documents evidencing a contractofcarriage which derogates from the specific provisionsofthe
HamburgRules cannotbe allowed to stand.
A fortiori, the Hamburg Rules themselves specifically provides in Article 23 (1) that any stipulationin
a contract of carriage by sea, in a bill of lading, or in any other document evidencingthe
contract of carriage bysea is nullandvoidto theextentthatit derogates,directly or indirectly,
from the provisions ofthisConvention….This is even more so in viewof the holding ofthe Supreme
Courtin the afore-cited JFS case that “…an int’l agreement embodiedin a Convention is
autonomous andabovedomesticlegislationsof thesubscribing countries andtheprovisions
cannot be suspendedor interrupted evenby the agreement of the parties.(Pages535-536,
Paras. H-A) (Underliningmine for emphasis)

5. In conclusion, itis my submissionthatthe decision of the Federal High Courtunder referenceis very
much contestable and challengeable. Again,our Courts are respectfully called upon to be bold and
courageousenough to uphold the provisions ofthe HamburgRules which apparently are more
protective of cargo interests even in the face of compelling arguments and pressure from the Carriers
to the contrary.
*isa Legal PractitioneratTheCampbellLawFirm,LagosNigeria, and has cognateexperiencein general
litigation,commercial law,maritimelawand generallegal advisory.