Seiichi Nakamura
Attorney at Law, Nakamura Law Office

1. Introduction

   The Carriers' liability under the Bill of Lading shall be determined by the terms of the Bill of Lading and the provisions of the Carriage of Goods by Sea Act of Japan currently in force (hereinafter called “Japan COGSA”). The two are closely related so it is necessary to have a profound understanding of Japan COGSA in order to understand the carrier's liability under the contract of carriage as evidenced by the Bill of Lading. Japan COGSA is an enactment of the Hague-Visby Rules as amended by Protocol of 1979, and, therefore, a profound understanding thereof is needed for a clear understanding of Japan COGSA.

   In 1957, Japan ratified the “International Convention for the unification of certain rules of law relating to Bills of Lading, signed at Brussels on 25th August 1924” (the “Hague Rules”). Consequent to the ratification of the Hague Rules, Japan enacted the Carriage of Goods by Sea Act of Japan on June 13, 1957. Thereafter, on March 13, 1992, Japan ratified the “Protocol amending the International Convention for the unification of certain rules of law relating to Bills of lading, 25 August 1924, as amended by the Protocol of 23 February 1968 done on December 21, 1979” (the “Protocol of 1979”). The Hague Rules were amended by the Protocol of 23 February, 1968 (the “Protocol of 1968”). The Hague Rules thus amended by the Protocol of 1968 are called the “Hague-Visby Rules”. The Hague-Visby Rules were further amended by the Protocol of 1979. As stated above, the Japan COGSA currently in force is an enactment of the Hague-Visby Rules as amended by the Protocol of 1979 and it came into force amending the Carriage of Goods by Sea Act of Japan of 1957 on June 1, 1993.

   Despite the amendment of the Hague-Visby Rules by the Protocol of 1979, the basic regime of the carrier' s liability under the Hague Rules remained unchanged. Accordingly, the basic regime of the carrier's liability under Japan COGSA currently in force is the same as that under the Hague Rules. In the circumstances, a study of the basic regime of the carrier's liability under the Hague Rules or its amendment will help to gain an understanding of the carrier's liability under Japan COGSA. In this connection, the United States Carriage of Goods by Sea Act (hereinafter called “US COGSA”) is an enactment of the Hague Rules. Therefore, the judgments issued and accumulated by the U.S. Federal Courts on the issue of the carrier's liability under US COGSA are useful to clarify the basic regime of the carrier's liability under the Hague Rules. Thus, the analyses of these U.S. Federal Courts judgments will assist in understanding the basic regime of the carrier's liability under Japan COGSA. For these reasons, the issue of the carrier's liability under the Hague Rules, US COGSA and Japan COGSA will be hereinafter discussed respectively

2. The Carrier's Liability under the Hague-Visby Rules as amended by the protocol of 1979

   The basic regime of the carrier's liability under the bill of lading established by the Hague Rules has remained unchanged since the amendment of the Hague Rules by the Protocols of 1968 and 1979.

   In discussing the issue of the carrier's liability under the Hague Rules as amended by the Protocol of 1968 and the Hague-Visby Rules as amended by the Protocol of 1979, it is necessary to discuss the effect of Articles III r.3 and 4 of the Hague-Visby Rules as amended by the Protocol of 1979, which provides as follows:

   Article III

   3.　After receiving the goods into his charge, the carrier or the master or agent of the carrier shall, on demand of the shipper, issue to the shipper a bill of lading showing among other things:

   1. The leading marks necessary for identification of the goods as the same are furnished in writing by the shipper before the loading of such good starts, provided such marks are stamped or otherwise shown clearly upon the goods if uncovered, or on the cases or coverings in which such goods are contained, in such a manner as should ordinarily remain legible until the end of the voyage;
   2. Either the number of packages or pieces, or the quantity, or weight, as the case may be, as furnished in writing by the shipper;
   3. The apparent order and condition of the goods.

   Provided that no carrier, master, or agent of the carrier shall be bound to state or show in the bill of lading any marks, number, quantity, or weight which he has reasonable grounds for suspecting not accurately to represent the goods actually received or which he has had no reasonable means of checking.

   4.　Such a bill of lading shall be prima facie evidence of the receipt by the carrier of the goods as therein described in accordance with paragraph 3 (a), (b) and (c).

   “However, proof to the contrary shall not be admissible when the bill of lading has been transferred to a third party acting in good faith.

   As shown above, Article III r.3 provides in sum that after receiving the goods into his charge, the carrier or the master or agent of the carrier shall, on demand of the shipper, issue to the shipper a bill of lading showing among other things; (a) the leading marks of the goods, (b) either the number of packages or pieces, or the quantity, or weight of the goods, (c) the apparent order and condition of the goods.

   Article III r.4 provides further that such a bill of lading shall be prima facie evidence of the receipt by the carrier of the goods as therein described in accordance with paragraphs 3 (a), (b) and (c), but that proof to the contrary shall not be admissible when the bill of lading has been transferred to a third party acting in good faith.

   “Prima facie evidence” means evidence that, until its effect is overcome by other evidence, will suffice as proof of a fact in issue. In the case of a bill of lading, the description of the goods as to (a) the leading marks of the goods, (b) number of packages or pieces, or the quantity, or weight of the goods and (c) the apparent order and condition of the goods are all evidence that will suffice as proof of receipt by the carrier of the goods as described in the bill of lading in accordance with above (a), (b) and (c) unless its effect is overcome by other evidence.

   There is no legal concept of “prima facie” or “prima facie evidence” under Japanese law. However, Japanese law has an analogous legal principle of “presumption” where, for example, a fact may be presumed to be true unless disproved by evidence to the contrary.

   The provision which provides that “such a bill of lading shall be prima facie evidence of the receipt by the carrier of the goods as therein described in accordance with paragraph 3 (a), (b) and (c)” set forth in Article III r.4 of the Hague-Visby Rules as amended by the Protocol of 1979 was not enacted in the Japan COGSA. Only the amendment made by the Protocol of 1979 providing that “proof to the contrary shall not be admissible when the bill of lading has been transferred to a third party acting in good faith” was enacted in Japan, by way of Article 9 of Japan COGSA

   In the construction of Article 9 of Japan COGSA and the bill of lading issued thereunder, it is generally accepted that information set out in the bill of lading may be presumed to be true unless disproved by evidence to the contrary. This would be a proper approach for construction of Article 9 of Japan COGSA.

   It should be noted that under the Hague-Visby Rules as amended by the Protocol of 1979, a bill of lading is prima facie evidence of the receipt by the carrier of the goods as therein described as to the (a) the leading marks of the goods, (b) either of the number of packages or pieces, or the quantity, and (c) the apparent order and condition of the goods, and that evidence to the contrary shall not be permissible when the bill of lading has been transferred to a third party acting in good faith. Under Japan COGSA, there is no such restriction as to the scope of the matters for which the proof to the contrary shall not be permissible. Also, proof to the contrary shall not be permissible on all the matters described in the bill of lading when the bill of lading has been transferred to a third party acting in good faith.

   As stated above, the basic regime of the carrier's liability under the bill of lading established by the HagueRules has remained unchanged since the amendments of the Hague-Rules by the Protocols of 1968 and of 1979. Consequently, the basic regime of the carrier's liability under Japan COGSA is the same as that under the Hague Rules. Hence, it would be useful to explain the basic structure of the carrier's liability under the Hague Rules for a understanding thereof under Japan COGSA.

   Under the Hague Rules, the carrier shall be responsible for loss or damage arising from commercial faults (“fautes commerciales” in the original French) which shall mean negligence, fault or failure in proper loading, stowage, custody, care, or proper delivery and also failure to exercise due diligence to make the ship seaworthy (Article II, Article III, 1 and 2 and Article IV, 1 of the Hague Rules) but the carrier shall not be responsible for damage or loss resulting from faults or errors in navigation or in the management of the vessel (Article IV, 2 of the Hague Rules). Further, causes of exemption from responsibility of the carrier for loss or damage to the goods are limited to those set forth in Article IV, 2 of the Hague Rules. As stated above, the basic structure of the carrier's liability under the Hague Rules has remained unchanged since the amendment of the Hague Rules by the Protocols of 1968 and 1979.

   Article II, Article III, 1 and 2, and Article IV, 1 and 2 of the Hague Rules provide as follows:

   Article II

   Subject to the provisions of Article 6, under every contract of carriage of goods by sea the carrier, in relation to the loading, handling, stowage, carriage, custody, care and discharge of such goods, shall be subject to the responsibilities and liabilities, and entitled to the rights and immunities hereinafter set forth.

   Article III

   1.　The carrier shall be bound before and at the beginning of the voyage to exercise due diligence to:

   1. Make the ship seaworthy;
   2. Properly man, equip and supply the ship;
   3. Make the holds, refrigerating and cool chambers, and all other parts of the ship in which goods are carried, fit and safe for their reception, carriage and preservation.

   2.　Subject to the provisions of Article 4, the carrier, shall properly and carefully load, handle, stow, carry, keep care for, and discharge the goods carried.

   Article IV

   1.　Neither the carrier nor the ship shall be liable for loss or damage arising or resulting from unseaworthiness unless caused by want of due diligence on the part of the carrier to make the ship seaworthy, and to secure that the ship is properly manned, equipped and supplied, and to make the holds, refrigerating and cool chambers and all other parts of the ship in which goods are carried fit and safe for their reception, carriage and preservation in accordance with the provisions of paragraph 1 of Article III. Whenever loss or damage has resulted from unseaworthiness the burden of proving the exercise of due diligence shall be on the carrier or other person claiming exemption under this Article.

   Article IV r.2 of the Hague Rules (and Hague-Visby Rules as amended by the Protocol of 1979) provides for the exemption of a carrier's liability for errors of navigation, fire, dangers of the sea and Acts of God and other causes of exemption from responsibility as follows:

   Article IV

   2.　Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from:

   1. Act, neglect, or default of the master, mariner, pilot, or the servants of the carrier in the navigation or in the management of the ship;
   2. Fire, unless caused by the actual fault or privity of the carrier;
   3. Perils, dangers and accidents of the sea or other navigable waters;
   4. Act of God,
   5. Act of war;
   6. Act of public enemies;
   7. Arrest or restraint of princes, rulers or people, or seizure under legal process;
   8. Quarantine restrictions;
   9. Act or omission of the shipper or owner of the goods, his agent or representative;
   10. Strikes or lockouts or stoppage or restraint of labour from whatever cause, whether partial or general;
   11. Riots and civil commotions;
   12. Saving or attempting to save life or property at sea;
   13. Wastage in bulk or weight or any other loss or damage arising from inherent defect, quality or vice of the goods;
   14. Insufficiency of packing;
   15. Insufficiency or inadequacy of marks;
   16. Latent defects not discoverable by due diligence;
   17. Any other cause arising without the actual fault or privity of the carrier, or without the fault or neglect of the agents or servants of the carrier, but the burden of proof shall be on the person claiming the benefit of this exemption to show that neither the actual fault or privity of the carrier nor the fault or neglect of the agents or servants of the carrier contributed to the loss or damage.

   The rules for exemption of liability for errors in navigation or in the management of the vessel and fire are set forth in Article IV r.2 of the Hague Rules (and the Hague-Visby Rules as amended by the Protocol of 1979) and other causes of exemption set forth in Article IV r.2 thereof have been enacted in Article 3, (2) and Article 4, (2) of Japan COGSA respectively.

   Article III r.8 of the Hague-Visby Rules as amended by the Protocol of 1979 provides that “Any clause, covenant, or agreement in a contract of carriage relieving the carrier or the ship from liability for loss or damage to, or in connection with, goods arising from negligence, fault, or failure in the duties and obligations provided in this Article or lessening such liability otherwise than as provided in this Convention, shall be null and void and of no effect. A benefit of insurance clause in favour of the carrier or similar clause shall be deemed to be a clause relieving the carrier from liability.”

   This clause has been enacted in Article 15 of Japan COGSA.

   Further, Article IV r.5, (a) of the Hague-Visby Rules as amended by the Protocol of 1979 provides that “(a) Unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading, neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection with the goods in an amount exceeding 666.67 units of account per package or unit or 2 units of account per kilogramme of gross weight of the goods lost or damaged, whichever is the higher.”

   This clause has been also enacted in Article 13, (1) of Japan COGSA.

   Article IV r.5 (b) of the Hague-Visby Rules as amended by the Protocol of 1979 also provides that “(b) The total amount recoverable shall be calculated by reference to the value of such goods at the place and time at which the goods are discharged from the ship in accordance with the contract or should have been so discharged. The value of the goods shall be fixed according to the commodity exchange price, or, if there be no such price, according to the current market price, or, if there be no commodity exchange price or current market price, by reference to the normal value of goods of the same kind and quality.”

   This clause has been also enacted in Article 12-2, (1) of Japan COGSA.

3. Carrier's Liability under U.S. COGSA

   The basic structure of the carrier's liability under the Hague Rules has been fully explained in the foregoing section Ⅱ. However, this is not sufficient for a clear understanding of the carrier's liability under the Japan COGSA. As stated above, the basic structure of the carrier's liability under Japan COGSA is the same as those under the Hague Rules.

   U.S. COGSA is an enactment of the Hague Rules. Thus, a great member of the judgments issued by the U.S. Federal Courts under U.S. COGSA will help provide a clear understanding of the basic structure of the carrier's liability under Japan COGSA where the basic structure of the carrier's liability is the same as that under the Hague Rules.

   For these reasons, ten (10) U.S. Federal Court judgments are cited below to show the basic structure of the carrier's liability under U.S. COGSA which is the Hague Rules enactment:

   (1)　 Horn v. Cia de Navegacion Fruco S.A.

   Once it has been established that a cargo of bananas was loaded in good condition and unloaded in damaged condition, the carrier could avoid liability only by proving that damage resulted from a cause for which he was statutorily not responsible or that he exercised due diligence to prevent the harm. Horn v. Cia de Navegacion Fruco, S.A. C.A. Ala. 1960, 404 F.2d 422, certiorari denied 89 S. Ct. 1272, 394 U.S. 943, 22 L. Ed. 2d 477.

   (2)　 Lekas & Drivas Inc. v. Goulandris

   Where a shipper makes out a prima facie case by proving that goods were delivered to the carrier in good condition and were outturned damaged or not at all, the burden falls on the carrier to bring himself within excepted cause. Lekas & Drivas, Inc. v. Goulandris, C.A. N.Y. 1962, 306 F.2d 426.

   *Note: “prima facie case” is one that will entitle party to recover if no evidence to the contrary is offered by the opposite party, or means inference or presumption of law, affirmative or negative of a fact, in the absence of proof, or until proof can be obtained or produced to overcome the inference.

   (3)　 Marine Sulphur Transport Corp.

   Once it is prima facie shown that a cargo delivered on board, as attested to in a bill of lading, is lost, the carrier is required to prove that he exercised due diligence to make the ship seaworthy or that the loss was the result of cause exempted from liability by this chapter. Decision of the Court in the Marine Sulphur Transport Corp. case, D.C.N.Y. 1970, 312 F. Supp. 1081, affirmed in part, reversed in part on other grounds 460 F.2d 89, certiorari denied 93 S. Ct. 318, 326, 409 U.S. 34 L. Ed. 2d 246.

   (4)　 India Supply Mission v. S.S. Valiant Effort

   Once the ocean carrier has brought forth evidence establishing defence of error in management, the burden is on the shipper to show that the vessel was unseaworthy and that damage to cargo was caused by such unseaworthiness. India Supply Mission v. S.S. Valiant Effort, D.C.N.Y. 1967, 283 F. Supp. 1011.

   (5)　 Daido Line v. Thomas P. Gonzales Corp.

   Where a shipper makes out a prima facie case by proving receipt of goods by carrier in good order, and delivery at destination in bad condition. Daido Line v. P. Gonzalez Corp.

   (6)　 Schroeder Bros., Inc. v. The Saturnia

   A carrier of goods by sea is prima facie liable for damage to cargo which, although in good condition when received by carrier is outturned damaged at end of voyage, unless the carrier can affirmatively show that the immediate cause of damage was an exempted cause for which law does not hold him responsible. Schroeder Bros., Inc. v. The Saturnia, C.A. N.Y. 1955, 226 F.2d 147. See, also, Establissements Edouard Materne, S.A. The Leerdam, D.C.N.Y. 1956, 143 F.Supp. 367.

   (7)　 Evans Products Co. v. M.S. Nardo

   Liability was established on showing that vessel received cargo in good order and discharged it in bad order, nothing more appearing. Evans Products Co. v. M/S Nardo, D.C.Va. 1969, 307 F.Supp. 5

   (8)　 Federazione Italiana Dei Consorzi Agrari

   Prima facie case for shipper to recover for goods lost when ship sank was made on showing of delivery of cargo in good order as well as loss due to sinking. Federazione Italiana Dei Consorzi Agrari v. Mandask Compania De Vapores, S.A., D.C.N.Y. 1966, 284 F.Supp. 356, affirmed in part, reversed in part on other grounds 388 F.2d 434, certiorari denied 89 S. Ct. 92, 393 U.S. 828, 21 L. Ed. 2d 99.

   (9)　GREAT ATLANTIC & PACIFIC TEA CO. V. LLOYD BRASILEIRO

   “Clean” bills of lading were prima facie evidence of good order and condition of cargoes at time of delivery to carrier. Great Atlantic & Pacific Tea Co. v. Lloyd Brasileiro (Patrimonia Nacional), 1962, 237 N.Y.S.2d 764, 37 Misc.2d 1058.

   (10)　Plata Am. Trading Inc. v. Lancaishire

   A Bill of lading establishes prima facie case against vessel and for shipper for shortage in goods shipped, but prima facie case is overcome by proof that amount of goods stated in the bill of lading was not in fact received by vessel. Plata Am. Trading, Inc. v. Lancashire, 1961. 214 N.Y.S. 2d 43, 29 Misc. 2d 246.

   The above judgments by the U.S. Federal Courts show that under U.S. COGSA, once a cargo claimant makes out a prima facie case by proving that goods were delivered to the carrier in good condition and were outturned damaged or not at all, the burden then falls upon the carrier to bring himself within exempted cause. In order for the carrier to be exempted from liability for the loss of or damage to the cargo, he must establish that he has exercised due diligence to make the ship sea worthy, or carried out proper loading, stowage, custody, care or proper delivery; and must show that the loss of or damage to the cargo was caused by the act, neglect, or default of the master, mariner, pilot, or the servant of the carrier in the navigation or in the management of the ship; or fire; or Peril of the sea, act of God or other exempted causes set forth in Section1304, (2) of U.S. COGSA. Leading marks, number of packages or pieces, or the quantity or weight and apparent order and condition of the cargo described in the bill of lading are prima facie evidence thereof at time of delivery of the cargo to the carrier. (Section 1303, (3) and (4) of U.S. COGSA)

   Thus, the basic structure of the carrier's liability under U.S. COGSA is clearly understandable.

4. The Carrier's liability under Japan COGSA

   1 Introduction

   The basic structure of the carrier's liability under the Hague Rules and Hague-Visby Rules as amended by the Protocol of 1979 and analysis of the judgments issued by U.S. Federal Courts under U.S. COGSA have been fully discussed above. It can be said that the basic regime of the carrier's liability under Japan COGSA is the same as that of the Hague Rules, the Hague-Visby Rules as amended by the Protocol of 1979 and U.S. COGSA.

   2 Scope of Application

   Article 1 of Japan COGSA provides that Japan COGSA shall be applied to the carriage of goods by oceangoing vessels where the port of loading or port of discharge is outside Japan. Japan COGSA shall be applicable to such carriage of goods by oceangoing vessels irrespective of whether or not such carriage of goods is covered by an ocean bill of lading or similar document of title.

   3 The Carrier’s Liability for loss or damage arising from commercial faults (“fautes commerciales”)

   Article 3, 1 of Japan COGSA provides that “The Carrier shall be responsible for loss or damage to the goods or delay arising from fault or negligence of the carrier or its servant in proper reception, loading, stowage, carriage, custody, discharge or proper delivery of the goods. Article 4, 1 of Japan COGSA further provides that Carrier shall not be exempted from the responsibility set forth in the Article 3 unless the carrier proves that he has exercised due care set forth in Article 3.

   4 The Carrier’s Liability for loss or damage arising from his negligence in failing to make the Vessel seaworthy.

   Article 5 of Japan COGSA provides as follows:

   1.　The carrier shall be responsible for loss or damage to the goods or delay caused by failure to exercise due diligence by the carrier or his servant, before and at the beginning of the voyage,

   (1) To make the ship seaworthy

   (2) To properly man, equip and supply the ship.

   (3) To make the holds, refrigerating and cool chambers, and all other parts of the ship in which goods are carried, fit and safe for their reception, carriage and preservation

   2.　The carrier may not be exempted from the responsibility set forth in the preceding paragraph unless the carrier proves that he has exercised due diligence to fulfill the duties set forth in the preceding paragraph.

   5 Exemption of liability for errors of navigation and fire

   Article 3, 2 of Japan COGSA provides that “Provisions of the preceding paragraph shall not be applied to the loss or damage arising from act of the master, mariner, pilot or the servant of the carrier (excluding the intentional act or negligence [actual fault or privity] of the carrier) in the navigation or in the management of the ship or fire. As set forth above, the carrier shall not be exempted from liability if loss or damage to the cargo has been caused by the intentional act or negligence (actual fault or privity) of the carrier. For example, the carrier would not be exempted from responsibility if an error of navigation has been committed by an alcoholic and incompetent master negligently employed by the carrier, or if the carrier has ordered the master not to employ a pilot where the employment of a pilot is compulsory, or instructed the vessel to take a wrong course.

   The carrier shall not be exempt from liability for loss or damage to the goods if the fire was caused by his own intentional act or negligence.

   6 Exemption of liability for danger of the sea, acts of God and other causes of exemption of liability

   Article 4,2 of Japan COGSA provides other causes which exempts the carrier from liability for loss or damage to the goods. Article 4, 2 of Japan COGSA is, in substance, an enactment of Article III r.2 of the HagueVisby Rules as amended by the Protocol of 1979 and corresponds largely to Section 1304, (2) of U.S. COGSA.

   Article 4,2 of Japan COGSA provides as follows:

   2.　The carrier shall be exempted from responsibility for loss or damage to the goods if the carrier proves that the loss or damage has arisen or resulted from the causes set forth below and that there exists reasonable causation between such causes and loss or damage to the goods; provided, however, that the foregoing provision shall not be applicable to the case where it is proved that such loss or damage to the goods could have been avoided by exercise of due diligence set forth in the Article 3 (due care for the cargo) but that the carrier has failed to exercise such due diligence:

   1. Perils, dangers and accidents of the sea or other navigable waters;
   2. Act of God;
   3. Act of war, act of public enemies and riot and civil commotions;
   4. Act of piracy and act similar thereto;
   5. Seizure under legal process, quarantine restrictions and arrest or restraint of princes;
   6. Act or omission of the shipper or owner of the goods, his agent or representative;
   7. Strikes or lockouts or stoppage or restraint of labour from whatever cause, whether partial or general;
   8. Saving or attempting to save life or property at sea and deviation of the ship therefor or other justifiable cause;
   9. Wastage in bulk or weight or any other loss or damage arising from inherent or latent defect, quality or vice of the goods;
   10. Insufficiency of packing and insufficiency or inadequacy of marks;
   11. Defects in cranes or other similar equipment or facilities.

   Under Article 4, 2 of Japan COGSA, the carrier would be exempt from responsibility for loss or damage to the goods if the loss or damage has arisen out of the causes set forth therein. However, Article 4, 2 of Japan COGSA provides further that the foregoing provision shall not be applicable if it is proved that such loss or damage could have been avoided if due care had been exercised in the proper reception, loading, stowage, carriage, custody, discharge and delivery of the goods but that the carrier failed to exercise due diligence with respect thereto. For example, the carrier would not be exempted from responsibility where it had been proved that the carrier could have foreseen the occurrence of the perils or dangers of the sea with the exercise of reasonable care but the carrier failed to foresee such perils or damages due to a failure to exercise reasonable care, and loss or damage has been caused to the goods. Neither would there be any exemption from liability where the vessel encountered the perils or dangers of the sea but the loss or damage to the goods occurred due to a failure by the carrier to exercise due diligence in the custody of the goods.

   7 The exercise of due diligence to maintain the seaworthiness of the vessel is a condition precedent for application of provisions for exemption of liability provided for in Article 4, 2 of Japan COGSA

   If the carrier fails to exercise due diligence to make the vessel seaworthy at the commencement of a voyage, he would not be exempted from liability for loss of or damage to the goods by the exemption of liability for errors of navigation and in the management of the vessel, and fire under Article 3, (2) or dangers of the sea, acts of God and other causes of exemption set forth in Article 4, (2) of Japan COGSA.

   First, the exemption of liability for errors of navigation and in the management of the vessel requires the carrier to have exercised due diligence to maintain the seaworthiness of the vessel as a condition precedent for the application of these exemptions of liability.

   Secondly, the same condition precedent needs to be satisfied for the application of the fire exemption unless the cause of fire has nothing to do with the seaworthiness of the vessel.

   If the cause of the fire is unaccounted for, the carrier is required to prove that he has exercised due diligence to maintain the vessel in a seaworthy condition.

   Thirdly, in order for the carrier to be exempted from liability under the exemptions set forth in Article 4, 2 of Japan COGSA such as the perils, dangers and accidents of the sea or other navigable waters or acts of God or other causes of exemption, and if the cause of the accident relates to the seaworthiness of the vessel, the carrier must prove that he has exercised due diligence to maintain the seaworthiness of the vessel.

   8 The amount of damages recoverable; limitation of liability; and damages caused by delay

   Article 3, 1 of Japan COGSA provides that “The carrier shall be responsible for loss of or damage to the goods or delay arising from the fault or negligence of the carrier or his servant in the proper reception, loading, stowage, carriage, custody, discharge or proper delivery of the goods.” As shown above, the carrier shall be responsible for damage caused by delay under Japan COGSA. The recoverable amount of damage caused by the delay shall be the difference between the market value of the cargo at the port of discharge at the time of actual arrival of the vessel and that at the time the vessel should have arrived at the port of discharge.

   As to the amount of damages recoverable, Article 12- 2, (1) of Japan COGSA provides that “The total amount recoverable shall be calculated by reference to the value of such goods at the place and time at which the goods are discharged from the ship in accordance with the contract or should have been so discharged, or according to the commodity exchange price if such exchange price is available.” This provision is an enactment of Article IV r.6 (b) of the Hague-Visby Rules as amended by the Protocol of 1979. Thus, the carrier shall not be responsible for consequential damages. The Tokyo District Court held on October 27, 2008 that the costs for disposal of damaged goods are not recoverable under Article 12-2, (1) of Japan COGSA.

   Article 13 of Japan COGSA provides that “Unless the nature and value of the goods have been declared by the shipper before shipment and inserted in the bill of lading, the carrier shall not become liable for any loss or damage to the goods in an amount exceeding 666.67 units of account (“Special Drawing Rights”) per package or unit or 2 units of account per kilogramme of gross weight of the goods lost or damaged, whichever is the higher. This is an enactment of Article IV r.5 (a) of the Hague-Visby Rules as amended by the Protocol of 1979.

   Further, Article 13-2 of Japan COGSA provides that “The carrier shall not be entitled to limitation of liability under Article 12-1 and Article 13, (1) through (4) and shall be responsible for all the loss or damage if it is proved that the damage resulted from an act or omission of the carrier done with intent to cause damage, or recklessly and with knowledge that damage would probably result. Article 13-2 of Japan COGSA is an enactment of Article IV r.5 (e) of the Hague-Visby Rules as amended by the Protocol of 1979. However, “an act or omission of the carrier” does not include “an act or omission of the servant of the carrier” under Japan COGSA.

   9 Bill of Lading issued under Japan COGSA

   Under Article III r.3 of the Hague-Visby Rules as amended by the Protocol of 1979, the carrier is required to issue to the shipper the bill of lading showing among other things – (a) the leading marks necessary for identification of the goods as furnished by the shipper, (b) either the number of packages or pieces, or the quantity, or the weight, as furnished in writing by the shipper, and (c) the apparent order and condition of the goods. Such a bill of lading shall be prima facie evidence of the receipt by the carrier of the goods as therein described in accordance with paragraph 3 (a), (b) and (c) above under the Hague-Visby Rules as amended by the Protocol of 1979.

   Article 7 of Japan COGSA requires the carrier to issue to the shipper a bill of lading showing, including but not limited to, － (a) leading marks necessary for identification of the goods as furnished by the shipper, (b) either the number of packages or pieces, or the quantity, or the weight, and (c) apparent order and condition of the goods. However, Japan COGSA does not have a provision which provides to the effect that such bill of lading is prima facie evidence of the receipt by the carrier of the goods as therein described in accordance with above paragraph (a), (b) and (c).

   Instead, Article 9 of Japan COGSA enacts the provisions of Article III r.3 of the Hague-Visby Rules as amended by the Protocol of 1979, which provides that proof to the contrary shall not be admissible when the bill of lading has been transferred to a third party acting in good faith. If the entire provision of Article III, 3 of the Hague-Visby Rules as amended by the Protocol of 1979 had been enacted in Japan COGSA, it would have more clearly shown the basic structures of the carrier's liability under Japan COGSA

   10 Conclusion

   Under U.S. COGSA, which is the Hague Rules enactment by the United States of America, a shipper makes a prima facie case by proving receipt of goods by carrier in good order, and delivery at destination in bad condition. (Daido Line v. P. Gonzales Corp.) Thus, the carrier is prima facie liable for damage to the cargo unless the carrier can affirmatively show that the immediate cause of damage was an exempted cause for which the law does not hold him responsible. In order for the carrier to be exempted from responsibility for loss of or damage to the goods carried, the carrier has to prove that there was no negligence, fault or failure in the duties and obligations to properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried; that he has exercised due diligence, before and at the beginning of the voyage, to (a) make the ship seaworthy, (b) properly man, equip and supply the ship, and (c) make the holds and all the parts of the ship in which the goods are carried, fit and safe for their reception, carriage, and preservation; or that the immediate cause of damage or loss to the goods was an exempted cause set forth in §1304, 2, (a) through (q) of U.S. COGSA, for which the law does not hold him responsible.

   §1303, (3) of U.S. COGSA provides that after receiving the goods into his charge the carrier, or the master or agent of the carrier shall, on demand of the shipper, issue to the shipper a bill of lading showing among other things － (a) the leading marks necessary for identification of the goods, (b) either the number of packages or pieces or the quantity or weight, and (c) the apparent order and condition of the goods, Such a bill of lading shall be prima facie evidence of the receipt by the carrier of the goods therein described in accordance with above (a), (b) and (c). A prima facie case would be established by the cargo claimant by presentation of such bill of lading and the proof of damage or loss to the goods.

   As stated above, Japan COGSA is an enactment of the Hague-Visby Rules as amended by the Protocol of 1979 but the basic structure of the carrier's liability under the Hague Rules has remained unchanged by the amendment by the Protocols of 1968 and 1979. Thus, it can be said that the basic structures of the carrier's liability under Japan COGSA are same as those under U.S. COGSA which is an enactment of the Hague Rules.

   It is generally accepted under Japan COGSA that a bill of lading issued by the carrier to the shipper showing among other things, (a) the leading marks necessary for identification of the goods, (b) either the number of packages or pieces, or the quantity, or the weight and (c) the apparent order and conditions of the goods would have an effect of presumption of the receipt by the carrier of the goods as therein described in accordance with above (a), (b) and (c). This can be considered to mean that a bill of lading showing among other things (a) the leading marks necessary for identification of the goods, (b) either the number of packages or pieces, or the quantity, or the weight, and (c) apparent order and conditions of the goods shall be prima facie evidence of the receipt by the carrier of the goods as therein described in accordance with above (a), (b) and (c). It can be said under Japan COGSA that once such a bill of lading and proof of loss or damage to the goods are presented, a prima facie case would be deemed to have been made out by the cargo claimant. Then, the carrier would not be able to escape from the responsibility for loss or damage to the goods unless the carrier can affirmatively show that the immediate cause of loss or damage was an exempted cause for which law does not hold him responsible.

   Comparative studies of U.S. COGSA and Japan COGSA seem to show that there is no difference in the basic structure of the carrier's liability for the loss of or damage to the goods carried under U.S. COGSA and Japan COGSA.

   On the basis of the basic structure of the carrier's liability stated above, Japan COGSA further provides the maximum amount of damages recoverable (Article 12-2, (1)); limitation of liability (Article 13); unlimited liability for damage resulting from an act or omission of the carrier with intent to cause damage or recklessly and with knowledge that damage would probably result (Article 13-2); applicability of defences and limits of liability under Japan COGSA to any action, whether the action is founded on contract or tort (Article 20-1, Article IV bis, 1 of the Hague-Visby Rules as amended by the Protocol of 1979); and the nullification of any clause, covenant or agreement which relieves the carrier from liability or lessens the carrier's liability otherwise than as provided for in Japan COGSA, as well as a benefit of insurance in favor of the carrier or similar clause (Article 15,1).