682 HOUSTON JOURNAL OF INTERNATIONAL LAW [Vol. 18:609 ular goods be at liberty to enter into any agreement in any terms as to the responsibility and liability of the carriers for such goods, and as to the rights and immunities of the carriers in respect of such goods, or their obligations as to seaworthiness (so far as the stipulation regarding seaworthiness is not contrary to public policy), or the care or diligence of their servants or agents in regard to the receiving, loading, handling, stowage, carriage, custody, care, discharge, and delivery of the goods carried by sea: Provided, That in this case no bill of lading has been or shall be issued and that the terms agreed shall be embodied in a receipt which shall be a nonnegotiable document and shall be marked as such. Any agreement so entered into shall have full legal effect: Provided, That this section shall not apply to ordinary commercial shipments made in the ordinary course of trade but only to other shipments where the character or condition of the property to be carried or the circumstances, terms, and conditions under which the carriage is to be performed are such as reasonably to justify a special agreement. Section 8, 46 U.S.C. App. § 1308 The provisions of this Act shall not affect the rights and obligations of the carriers under the provisions of the Shipping Act, 1916, the Shipping Act of 1984, or of any amendments thereto; or under the provisions of sections 4281 to 4289, inclusive, of the Revised Statutes of the United States, or of any amendments thereto; or under the provisions of any other enactment for the time being in force relating to the limitation of the liability of the owners of seagoing vessels. Section 9, 46 U.S.C. App. § 1309 Nothing contained in this Act shall be construed as permitting a common carrier by water to discriminate between competing shippers similarly placed in time and circumstances, either (a) with respect to their right to demand and receive bills of lading subject to the provisions of this Act; or (b) when issuing contracts of carriage, either in the surrender of any of the carrier's rights and immunities or in the increase of any of the carrier's responsibilities and liabilities pursuant to section 5 of 1996] PROPOSED AMENDMENTS TO COGSA 683 this Act; or (c) in any other way prohibited by the Shipping Act, 1916, the Shipping Act of 1984, or of any amendments thereto. Section 11, 46 U.S.C. App. § 1310 Where under the customs of any trade the weight of any goods in bulk inserted in the contract of carriage is a weight ascertained or accepted by a third party other than a carrier or the shipper, and the fact that the weight is so ascertained or accepted is stated in the contract of carriage, then, notwithstanding anything in this Act, the contract of carriage shall not be deemed to be prima facie evidence against the carriers of the receipt of goods of the weight so inserted in the contract of carriage, and the accuracy thereof at the time of shipment shall not be deemed to have been guaranteed by the shipper. Section 13, 46 U.S.C. App. § 1312 This Act shall apply to all contracts that include the carriage of goods by sea covering transportation to or from the United States. As used in this Act, the term "United States" includes its districts, territories, and possessions. Every contract of carriage covering a shipment from a port of the United States shall contain a statement that it shall have effect subject to the provisions of this Act. Sec. 2. This Act shall take effect ninety days after the date of its approval. Cases in which the goods were received by a carrier prior to the effective date of this Act shall be governed by the law that would have applied but for the passage of this Act. Sec 3. This Act may be cited as the "Carriage of Goods by Sea Act of 1996." Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That every bill of lading or similar document of title which is evidence of a contract for that includes the carriage of goods by sea covering transportation to or from ports of the United States, in foreign trade, shall have effect subject to the provisions of this Act. The defenses and limitations of liability provided for in this Act and the responsibilities imposed by this Act shall apply with the force of law in any action against a carrier or a ship in respect of loss or damage to goods covered by a contract of carriage without regard for the form or theory of the action or the court or other tribunal in which it is brought. The remedies available under this Act shall constitute the complete and exclusive remedy against a carrier in respect of loss or damage to goods covered by a contract of carriage. This Act shall be construed as providing an independent basis for admiralty jurisdiction. Section 1, 46 U.S.C. App. § 1301 When used in this Act (a) (i) The term "carrier" includes contracting carriers, performing carriers, and ocean carriers. (ii) The term "contracting carrier" means the party who enters into the contract of carriage with the shipper of the goods. 1996] PROPOSED AMENDMENTS TO COGSA 685 (iii) The term "performing carrier" means a party who performs or undertakes to perform any of the contracting carrier's responsibilities under a contract of carriage, including any party that performs or undertakes to perform or procures to be performed any incidental service to facilitate the carriage of goods, regardless of whether it is a party to, identified in, or has legal responsibility under the contract of carriage. The term includes, but is not limited to, ocean carriers, inland carriers, stevedores, terminal operators, consolidators, packers, warehousemen, and their servants, agents, contractors, and sub-contractors. A contracting carrier may also be a performing carrier.the owner or the eharterer who enters into a contract of carriage with a shipper. (iv) The term "ocean carrier" means a performing carrier who owns, operates, or charters a ship used in the carriage of the goods by sea. (v) This Act shall not apply to claims against an interstate motor or rail carrier that is not the contracting carrier to the extent that it is providing motor or rail services. (b) The term "contract of carriage" applies only to all contracts of earriage covered by a bill of lading or any similar document of title, insofar as such document relates to for the carriage of goods either by sea or partially by sea and partially by one or more other modes of transportation, but does not include (i) contracts for transportation in domestic trade exclusively on the Great Lakes, rivers or other inland waters, or the intercoastal waterway, or (ii) charterparties. The term "contract of carriage” includes,ing but is not limited to, negotiable or "order" bills of lading and nonnegotiable or "straight" bills of lading, whether printed or electronic. Any bill of lading or any similar document as aforesaid issued other contract arising under or pursuant to a charter-party shall be included in the term “contract of carriage" from the moment at which such bill of lading or 686 HOUSTON JOURNAL OF INTERNATIONAL LAW [Vol. 18:609 similar document of title it regulates the relations between a carrier and a holder of the same. (c) The term "goods" includes goods, wares, merchandise, and articles of every kind whatsoever, except live animals and cargo which by the contract of carriage is stated as being carried on deck and is so carried. (d) The term “ship” means any vessel used for the carriage of goods by sea. (e) The term "carriage of goods" covers the period from the time when the goods are loaded on received by a carrier to the time when they are discharged from the shipdelivered by a carrier to a person authorized to receive them. (f) The term "shipper” means any person by whom or in whose name or on whose behalf a contract of carriage has been concluded with a contracting carrier, or any person by whom or in whose name or on whose behalf the goods are actually delivered to a carrier in relation to the contract of carriage. (g) In this Act, the term "electronic" shall include Electronic Data Interchange (EDI) or other computerized media. If the parties agree to use an electronic bill of lading, it shall be a "contract of carriage" governed by this Act and the procedures for such bills of lading shall be in accordance with rules agreed upon by the parties. Section 2, 46 U.S.C. App. § 1302 Subject to the provisions of section 6, under every contract of carriage of goods by sea, the carriers in relation to the receiving, loading, handling, stowage, carriage, custody, care, and discharge, and delivery of the such goods, shall be subject to the responsibilities and liabilities and entitled to the rights and immunities hereinafter set forth. A contracting carrier shall be subject to these responsibilities and liabilities and entitled to these rights and immunities with respect to the entire period covered by its contract of carriage. A performing carrier shall be subject to these responsibilities and liabilities |