Anyone who has dealt with a damaged container offloaded at the Port of Colombo or any port, for the matter of fact knows the frustration that follows. The surveyor’s report tells one story. The bill of lading tells another. And time, always time is running against you. Getting the claim right, and getting it filed before the statutory clock expires, often makes the difference between recovery and writing off a considerable loss.
This article unpacks two questions our maritime practice encounters with striking regularity: how do Sri Lankan courts actually handle cargo damage disputes, and what limitation periods must claimants be aware of?
THE STATUTES THAT MATTER
Sri Lanka’s cargo liability regime does not sit within a single enactment. It is scattered across several pieces of legislation, each serving a distinct function.
The Carriage of Goods by Sea Act No. 21 of 1982 (“COGSA”) is the centerpiece. COGSA brought the Hague-Visby Rules into our domestic law. It governs every contract of carriage by sea where the bill of lading or equivalent document of title is issued from a Sri Lankan port. If your cargo dispute touches a bill of lading, COGSA almost certainly applies. When bringing a maritime claim in admiralty, jurisdiction sits with the High Court of the Republic of Sri Lanka, whose powers derive from the Admiralty Jurisdiction Act No. 40 of 1983 (“The Act”). Section 2(1) of that Act sets out a broad list of maritime claims the Court may entertain—cargo loss and damage claims prominently among them. The procedural framework of how those proceedings unfold are found in the High Court (Admiralty) Jurisdiction Rules 1991 (“Admiralty Rules”), which govern everything from the form of the writ to vessel arrest procedure.
CARGO DAMAGE: WHAT THE LAW ACTUALLY REQUIRES
The Carrier’s Two Fundamental Duties
The COGSA imposes two non-negotiable duties on the carrier.
First, seaworthiness. Article III, Rule 1 of the Hague-Visby Rules demands that the carrier exercise due diligence—before and at the commencement of the voyage, to make the vessel seaworthy. That includes proper manning, equipping, and ensuring the cargo holds are fit for purpose. A leaking hatch cover that lets seawater reach bagged rice stowed below deck is, quite plainly, a failure of this duty.
Second, care of cargo. Article III, Rule 2 obliges the carrier to properly load, handle, stow, carry, keep, care for, and discharge the goods. This is not a guarantee of safe arrival. It is an obligation of reasonable care. But where that care falls short, liability follows.
Defences the Carrier Will Raise
Carriers rarely concede without a fight, and Article IV, Rule 2 of the COGSA, equips them with a broad range of statutory defences. The excepted perils include act of God, perils of the sea, inherent vice, insufficiency of packing, and perhaps most controversially, fault in the navigation or management of the ship. Our courts have been clear, however, that the carrier bears the onus of proving that the exception applies. It is not enough merely to invoke it.
GETTING THE CLAIM BEFORE THE COURT
In Rem or In Personam?
A cargo claimant proceeding under the Admiralty Act has a choice. An action in personam targets the carrier or shipowner directly. An action in rem targets the offending vessel herself, and opens the door to arrest within Sri Lankan waters as security for the claim. The tactical advantages of arrest are significant, particularly where a foreign shipowner has no assets within the jurisdiction. The procedural steps for such actions are governed by the Admiralty Rules.
Common Law Approach
Claimants may alternatively explore independent liability under the Roman-Dutch common law of delict. By framing an action under the Lex Aquilia, a claimant seeks to recover actual patrimonial loss by proving that the carrier’s conduct fell below the standard of a reasonable person resulting in actionable culpa (negligence) or dolus (intent). Because this delictual remedy functions independently of the limits set out in a contract of carriage.
In practice, the route adopted will depend on the facts of the cargo claim, the parties against whom relief is sought, and whether the claimant seeks damages alone or damages supported by security.
The Notice Requirement Nobody Should Ignore
Article III, Rule 6 of the Hague-Visby Rules contains a provision that catches the unwary. Written notice of loss or damage must be given to the carrier at the port of discharge before or at the time the goods are removed into the consignee’s custody. If the damage is not apparent, notice must follow within three days.
Fail to give notice? The law presumes the goods were delivered in the condition described in the bill of lading. That presumption is rebuttable, but rebutting it adds an unwelcome burden to an already uphill claim.
LIMITATION PERIODS – THE CLOCK IS NOT GENEROUS
One Year for Cargo Claims
Here is the provision that ends more cargo disputes than any judicial determination ever could. Article III, Rule 6 of the Hague-Visby Rules, as enacted through COGSA, provides that the carrier and ship shall be discharged from all liability unless suit is brought within one year of delivery or the date the goods ought to have been delivered.
Sri Lankan courts treat this time bar as substantive. It extinguishes the right, not merely the remedy. An application to file suit in thirteen months will, barring exceptional circumstances, fail.
The Rules do permit the parties to agree an extension, but only after the cause of action has arisen. Pre-dispute clauses purporting to shorten or waive limitation have no effect.
Two years for Delictual Actions
Where the claimant pursues damages for cargo loss or injury entirely outside the contract of carriage—such as framing the action in delict under the Roman-Dutch Lex Aquilia—Section 9 imposes a strict two-year limitation period from the date the cause of action accrued.
WHAT WE TELL OUR CLIENTS
Commission your survey immediately, not tomorrow, not next week. Serve written notice on the carrier within the prescribed timeframe. And above all, seek legal advice before the one-year/ two year limitation period.
